Butt v Secretary of State for the Home Department

Overview:

This is an appeal by Mohammed Ejaz Butt from the decision and order of the Upper Tribunal (“UT”) dated 30 April 2013. Deputy Upper Tribunal Judge Pickup dismissed the appellant’s appeal against a decision of the Secretary of State in a letter dated 27 December 2012 to reject his claim for asylum and associated claims based on articles 2, 3 and 8 of the European Convention of Human Rights (“the ECHR”) and challenge to directions issued under section 10 of the Immigration and Asylum Act 1999 (“the 1999 Act”) to remove him and his wife, Raheela Kausar, from the United Kingdom. After hearing the argument on behalf of the appellant, and retiring to consider it, the court informed the parties that the appeal would be dismissed and that our reasons would follow. This judgment sets out my reasons.

In the tribunals, the appeals of the appellant’s two adult daughters, Smaher and Abeer, were allowed. The sole issue before this court was whether, in the light of the evidence about the extent that they depended on him and his wife, the judge erred when conducting the proportionality assessment under article 8 of the ECHR. It was submitted by Mr Ahmed on behalf of the appellant that, when considering the proportionality of removing the parents, the judge failed to take account of the full effect of that removal on their two daughters in the light of the evidence as to the degree of attachment and dependency of the daughters and their cultural background.

Factual and procedural background:

The appellant and his family are citizens of Pakistan. He is now aged 64. His wife is now aged 54 and is his dependant. They have four adult children, Adeel, Sehar, Smaher, and Abeer, now respectively aged 32, 31, 29 and 25 who are all in the United Kingdom. Sehar is married to an EU national exercising treaty rights in the United Kingdom and Adeel has indefinite leave to remain. Because the appeals of Smaher and Abeer were allowed in the tribunals they are not parties to this appeal, but, as I have stated, the way the Deputy Upper Tribunal judge assessed their position is an important factor in the determination of the issue that is before us.

The appellant, his wife, Smaher, and Abeer arrived in the United Kingdom on 7 July 2004. They had entry clearance as visitors which was valid until 12 August 2004. When their entry clearance expired, they did not leave the United Kingdom. They made no attempt to regularise their stay for over 8 years until 10 February 2012. On that date, they applied for leave to remain on human rights grounds relying on article 8 of the ECHR. Jumping forward in the chronology, the First-tier Tribunal (“FtT”) rejected the appellant’s explanations and excuses for not regularising his status which included that he had been acting on advice and had received threats from Pakistan including threatening phone calls in the United Kingdom (Footnote: ¹) but found that, in not taking steps to regularise their position and making the claims they subsequently made, Smaher and Abeer were “subject to parental direction”. (Footnote: ²)

The family’s human rights application was refused in a decision dated 20 November 2012. On 10 December 2012, they made the claims that were refused in the decision that, together with the decision to remove them pursuant to the Secretary of State’s power under section 10 of the Immigration and Asylum Act 1999, has given rise to these proceedings. The section 10 decision carried a right of appeal to the Tribunal which the appellants exercised. The FtT, in a decision promulgated on 14 January 2013, dismissed the appellant’s appeal but allowed an appeal on article 8 grounds by Smaher and Abeer. The appellant and the Secretary of State both appealed to the UT.

In a decision promulgated on 29 January 2013, the UT allowed the appeal by the appellant. The issue before the UT was precisely the same issue as that before us. UT Judge Kopieczek considered that, in the light of what the FtT judge had said in his determination about the extent of the dependency of the two daughters, it was not clear that he had considered the effect on them of their parents’ removal. He set aside the FtT’s decision and directed that it be remade and the parties make submissions as to what findings of fact could be preserved.

As to Smaher and Abeer, the FtT judge considered (at [30]) that they were “young people likely to make a positive contribution to the UK economy and the retention of their skills is in the public interest would be a real benefit to the United Kingdom”. He stated (at [32]) that the time they had spent in the United Kingdom, “their Westernised development over eight years and what they have to offer the United Kingdom militate in favour of them remaining at present”. He had earlier (at [13]) described Smaher’s first class degree in Medicinal Chemistry with Pharmacology as an outstanding achievement and stated that she had also published work for the wider benefit of others, and referred (at [15]) to Abeer’s statement where she set out her life in this country in terms of education and achievements, including a university place near her home to study Mathematics. The Secretary of State’s appeal against that decision was dismissed by UT Judge Kopieczek.

It is only necessary to summarise those findings of the FtT which the UT preserved and which were thus operative when the UT remade the decision that are relevant to this appeal. The FtT judge found that Smaher and Abeer were “able, honest and reliable witnesses; effectively they remain under control of their parents, who have a significant say in their decisions; and will continue to play some role in their development”. (Footnote: ³) The UT agreed that these findings should stand but stated that the conclusion to be drawn from them, in terms of whether the closeness and emotional ties of the family were such that removal of the parents would be disproportionate, remained open

The following factual findings were also preserved: (Footnote: ⁴) (i) the appellant and his wife decided to remain in the UK and went underground rather than regularise their status; (ii) the explanations and excuses of the appellant and his wife for not regularising their status which included that the appellant had been acting on advice and had received threats from Pakistan including threatening phone calls in the United Kingdom were rejected; (iii) the findings in relation to health and cultural ties; and (iv) the findings as to the appellant’s immigration history including his working in Saudi Arabia as an electrician from 1976 and the fact that his wife and children moved there from Pakistan in 1989. (Footnote: ⁵)

The judge considered (see UT [10]) that the “crucial issue” was the article 8 proportionality balancing exercise. He stated that this was to be determined “on the circumstances of the appellant, his wife and family, taking into account the appellant’s immigration history and their present circumstances”. The judge referred (at [13]) to the witness statements of the appellant, his wife, Smaher, and Abeer made on 23 January 2013, two days before the hearing before UT Judge Kopieczek, and thus after the decision of the FtT, but did not refer to their contents.

In paragraph [15] the judge stated that the factors he had considered in the proportionality balancing exercise “include the following”, and he then listed 25 factors. For the purposes of this appeal it is only necessary to summarise eight of them. Using the same letter in brackets as in the UT’s decision, those that point against the removal of the appellant and his wife are:

After the reference to the upset, sadness and distress to friends and family and the suggestion on behalf of the appellants that “it would be devastating to the family” to have to leave their daughters behind, [15](s) concluded: “However, it should also be borne in mind that as adults the daughters are likely to be soon establishing an independent life, perhaps away from the family home, persuing work, education, or even marriage”. The other factors in the list concerning the daughters are:

The factors referred to by the judge that point in favour of the removal of the appellant and his wife are: the poor immigration history of the appellant and his wife, the fact that their evidence was not found credible, and the strong public interest in maintaining immigration control: see [15] (c) – (h) and (u).

The judge’s conclusion at [16] was that “whilst there will be upset and distress at the separation, the balance comes down clearly in favour of the removal of the appellant and his wife from the United Kingdom”. He stated that he had “taken full account of the effect this will have on the two daughters at home, but on the facts of this case and for the reasons set out herein, the likelihood of that emotional trauma from the separation does not in my view outweigh the public interest in this case”. He therefore dismissed the appeal.

Applications for permission to appeal were refused by UT Judge Gleeson and then by Gloster LJ but, at the hearing of a renewed application on 1 May 2015 Jackson LJ granted permission to appeal on the sole ground pursued before him: see [2015] EWCA Civ. 574 at [8] – [9]. He did so because he considered that “the unusual facts of this case are such that the Deputy Upper Tribunal Judge arguably has not given proper consideration to article 8 factors relating to the daughters even though they are now adults” and to that extent accepted the submissions on behalf of the appellant that the decision did not reflect the evidence.

It is clear the judge regarded article 8 as engaged because he stated (see [10] above) that the “crucial issue” in the case was the article 8 proportionality balancing exercise. The issue therefore is whether he misdirected himself in law in the way he approached that exercise. Before turning to Mr Ahmed’s well-structured and succinct submissions, I summarise the relevant legal principles.

Ghising (family life – adults – Gurkha – policy) [2012] UKUT 00160 (IAC) concerned the consequences for adult children of Gurkha veterans of the reversal of a policy of not allowing Gurkha veterans to settle in the United Kingdom and its replacement by a policy that Gurkha veterans, their wives and minor children would generally be given leave to remain in this country, but their children, who had become adults by the time of the change in policy would only be given leave in exceptional circumstances. Lang J and UT Judge Jordan reviewed the decisions of the Strasbourg court and those of this court since Kugathas v Secretary of State for the Home Department [2003] EWCA Civ. 31 as to when article 8 is engaged because of the relationship between an adult and his or her parents. They concluded that there is no general proposition that article 8 of the ECHR can never be engaged between adult siblings living together or between adult children and their parents. It stated (see [62]) that the issue is “highly fact-sensitive” and that each case should be analysed on its own facts to decide whether or not family life exists. The approach in Ghising’s was approved by this court in R (Gurung) v Secretary for the Home Department [2013] EWCA Civ. 8, [2013] 1 WLR 2546. The judgment of the court (Lord Dyson MR, Sullivan and Patten LJJ) stated at [46] that “we doubt whether any useful purpose is served by further general elaboration”.

In PT (Sri Lanka) v Entry Clearance Officer Chennai [2016] EWCA Civ. 612 this court considered Ghising’s case and its post- Ghising decision in Singh v Secretary of State for the Home Department [2015] EWCA Civ. 630. Underhill LJ (with whom Cranston J and I agreed) stated (at [26]) that the principles in Kugathas had to be understood in the light of the subsequent case law, including the decision in Singh’s case. In Singh’s case Sir Stanley Burnton, with whom Richards and Christopher Clarke LJJ agreed, stated at [24] that there was no requirement of “exceptionality”, that all depends on the facts, and that there must be something more than the love and affection between an adult and his parents or siblings which will not of itself justify a finding of family life. He also stated that a young adult living with his parents will normally have a family life to be respected under article 8.

I turn to proportionality. Its assessment is an evaluative exercise involving a value judgment (Footnote: ⁶) which must be made by the court. (Footnote: ⁷) In Ghising and Gurung, the discussion of proportionality was focussed on the approach in the light of the former policy which the UT and this court described as an historic injustice, and the weight to be given to that injustice. The court in Gurung’s case stated (at [36] and [38]) that the court should be wary in any context of attempting to give prescriptive guidance as to the weight to be given to particular factors when the article 8(2) balancing exercise is performed, and certainly in the context of an immigration decision. It stated that the historic injustice with which it was concerned is only one of the factors to be weighed against the need to maintain a firm and fair immigration policy. After stating that in Huang v Secretary of State for the Home Department [2007] UKHL 11 , [2007] 2 AC 167 the House of Lords was careful not to be overly prescriptive, (at [37]) it referred to what it described as the warning sounded by Lord Bingham in EB (Kosovo) v Home Secretary [2008] UKHL 41 , [2009] 1 AC 1159 at [12] that there is in general no alternative to making a careful and informed evaluation of the facts of the particular case.

There are three other relevant general points. The first is the role of this court when considering the decisions of specialised appellate tribunals. In AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] 1 AC 678 at [30] Lady Hale stated that the ordinary courts should approach appeals from “the expert tribunal charged with administering a complex area of law in challenging circumstances… with an appropriate degree of caution”. She also stated that “[t]hey and they alone are judges of the facts…. [t]heir decisions should be respected unless it is quite clear they have misdirected themselves in law” and “[a]ppellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently”. Secondly, in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49, [2011] 2 All ER 65 at [45] Lord Dyson, after endorsing Lady Hale’s approach also stated that “where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account”. The third is the approach an appellant court should take when considering an assessment of proportionality by a lower court. In Re B (a child) (FC) [2013] UKSC 33, [2013] I WLR 1911, a majority of the Supreme Court held that the correct approach is to treat the exercise as an appellate exercise and not as a fresh determination of proportionality. (Footnote: ⁸)

With that background, I turn to Mr Ahmed’s submissions based on the post-FtT statements by the appellant, Smaher and Abeer to which I referred at [10] above. Mr Ahmed placed significant weight on their contents. He argued that they show that, although Smaher and Abeer were adults, they had never lived independently, they were single, which was of cultural significance in the case of young Moslem women, and they were in the company of their parents daily. I therefore summarise the parts of the statements on which he relied. I note that the daughters’ statements are only two pages long, and deal in general terms with the anticipated impact on each daughter of their parents’ removal, using language that, in the circumstances, it is not surprising that daughters would use of the prospect of being parted from their parents.

The appellant’s statement referred to the family’s tradition of having dinner together and discussing the day’s events and any problems that had arisen and the responsibility he and his wife took in advising their children. He stated that “as a result of the values that I have been bought up with, I see that my children will always be dependent on me and are my responsibility until they are married and move out of the family home”. Smaher’s evidence is that although she is 24 she is still very attached to her parents and sought their advice on any important matter. It was because of that that she did not move out of the family home but preferred to commute daily to Liverpool where she was studying. She stated that she believed that she “would not be able to handle the emotional turmoil” she would endure if her parents were separated from her and that she “would be devastated and shattered without them as I have lived all my life with them”. Abeer stated that, although for most people starting their adult life meant they could live independently and make decisions without interference from their parents, for her becoming an adult meant she would be needing them more than ever before in all the important decisions of her life. She did not know how she would be able to cope with tough situations if they were not there to help her. She considered that parents played a very important part in the success and achievement of their children.

Mr Ahmed noted that, although in his decision the judge referred to the post-FtT statements, he did not refer to their contents and this was one indication that he erred by not taking account of the full effect the removal of the parents would have on the two adult daughters. I reject the argument that the judge’s failure to set out or summarise the words used means that he did not consider the statements. In considering the impact on the daughters, the judge must have taken these statements into account. He had summarised the nature of the error of law which led to the FtT’s decision being set aside (Footnote: ⁹) and he was obviously aware that this was because it was not clear that consideration had been given to the effect on Smaher and Abeer of their parents’ removal from the United Kingdom. In any event, in the light of the guidance of Lord Dyson in MA (Somalia) v Secretary of State for the Home Department to which I have referred (see [20] above), where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that the tribunal did not take it into account.

In support of his submission that the judge did not take into account the full effect the parents’ removal would have on the daughters, Mr Ahmed also relied on the judge’s statement at [15(p)] that although the parents continued to play a significant part in the lives of the two daughters he “should also take into account that they will have two other siblings, with whom they are close, in the UK in the absence of their parents”. He submitted that the judge did not recognise that parents have a different role to siblings and that, given the cultural context, as recognised in the authorities, it was incumbent on the judge to explain why the siblings were an adequate substitute. I reject this submission. The statement does not show the judge misdirected himself in law. Indeed, the FtT’s summary of Smaher and Abeer’s evidence (FtT [14] – [16]) refers to them relying on their closeness to their siblings as one of the reasons they did not wish to live in Pakistan.

The written submissions on behalf of the appellant prepared by his solicitors and former counsel also maintained that at no point did the FtT and UT consider whether the academic progress of Smaher and Abeer would be affected by their parents’ removal. Although Mr Malik submitted that the submissions on behalf of the appellant in this regard amounted to an attempt by him to “piggy back” on his adult daughters’ wishes, in his oral submissions Mr Ahmed concentrated on the nature of the daughters’ dependency on their parents. But, in any event, the argument that the judge erred in not considering the effect of the parents’ removal on the daughters’ ability to make the positive contribution to the United Kingdom that (see [7] above) was the reason the FtT concluded they should be allowed to remain goes nowhere. The desire of Smaher and Abeer to continue pursuing higher education in this country is understandable. Although their dependency on their parents means that article 8 is engaged, the discussion of weight at [20] above shows that their desire does not operate as a trump card in considering whether it is proportionate to remove their parents. Like the historic injustice in Ghising and Gurung, their wish to pursue higher education in this country and their dependency on their parents and need for their support are only two of the factors to be weighed against the need to maintain a firm and fair immigration policy.

There is, in a sense, a loose analogy between the circumstances of this case and the arguments in some of the cases involving British national minor children where it was argued that a decision to remove a foreign national parent has not given sufficient weight to the best interests of the children. But even in the context of minor children, where the best interests of the children must rank as a primary consideration and are of significant weight, as Lady Hale stated in Makahlouf v Secretary of State for the Home Department [2016] UKSC 59 at [47], that does not mean that the rights of the children are inevitably a “passport” for a parent.

I turn to Mr Ahmed’s submission that there was no evidence for the judge’s statement in the last sentence of [15(s)] that, as adults the daughters were likely to be soon establishing an independent life perhaps away from the family home. This submission was based on the post-FtT statements. It is, however, also important to take into account the findings made by the FtT on the basis of their evidence to it because those findings were preserved by the UT. The parts of that evidence summarised in the FtT’s decision concern the reasons given by the two daughters for not wishing to live in Pakistan. So, at FtT [14] it is stated that Smaher is accustomed to Western lifestyle including Western clothing, although she does wear a hijab and that she expressed her objection to being forced into a particular marriage but wished to make her own choice on those matters. She also stated that she believed that the opportunities for work as a woman are exceptionally limited in Pakistan and she simply would not be able to pursue the professional career she is capable of pursuing in the United Kingdom. As to Abeer, the FtT stated (at [16]) that she had no wish to be pushed into an arranged marriage, certainly not one which is not of her choice. I recognise that these statements are not inconsistent with the continued dependence of the two adult daughters on their parents. But, notwithstanding the finding of the FtT judge that in relation to regularising immigration control they took no steps until a decision was made by their parents, these parts of their evidence do give a different picture which, since the FtT’s findings were preserved, the Deputy UT judge was entitled to take into account when making the statement in the last sentence of [15(s)].

I have so far concentrated on the role of the daughters’ dependency on their parents and of their undoubted and commendable educational achievements in this country in the proportionality analysis. It must not be forgotten that the judge also took account of the appellant’s poor immigration history, the fact that his and his wife’s evidence was not found credible, and the strong public interest in maintaining immigration control. There was no challenge to his approach to those matters. The strength of the public interest in maintaining immigration control has been recently emphasised by the Supreme Court in R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11. Where the immigration status of the family or some members of it is such that the persistence of that family life within the host state would from the outset be unlawful or “precarious”, it was stated (see [49] ff.) that, particularly where the individuals know this, and absent protracted delay by the immigration authorities, which there has not been in this case, “it is likely only to be in exceptional circumstances” that the removal of a non-national family member will constitute a violation of article 8.

Standing back, and looking at the entire decision, I consider that Deputy UT Judge Pickup carefully considered the factors relevant to the article 8 proportionality analysis and that in particular sub-paragraphs (l), (o), (p), (r), (s), (t), and (x) of [15] show that he did focus on the impact of the parents’ removal on their daughters. In sub-paragraph (t) of [15] he stated that, even from Pakistan “the parents will be able to communicate and have a say or influence in the activities and development of their daughters”. He recognised that there will be “upset and distress at the separation” but concluded that “the balance comes down clearly in favour of the removal of the appellant and his wife from the United Kingdom”. (Footnote: ¹⁰)

In my judgment, the submissions on behalf of the appellant amount to no more than a disagreement with the judge’s assessment of proportionality. I have referred to the statement of Lady Hale in AH (Sudan)’s case about the caution courts should exercise in relation to the decisions of expert tribunals. She stated the decisions of tribunals as to the facts should be respected unless it is quite clear they have misdirected themselves in law and that appellant courts should not rush to find such a misdirection simply because they might have reached different conclusions on the facts or expressed themselves differently. I consider that the courts’ reluctance to attempt to give prescriptive guidance as to the weight to be given to particular factors and the need for a careful and informed evaluation of the facts of the particular case and the role of an appellant court when considering an assessment of proportionality by a lower court to which I referred at [19] and [20] above suggests that the assessment of the specialist tribunal as to proportionality should also be respected unless it is clear it has misdirected itself in law.

It was for these reasons that I concluded that the judge was entitled to find that, notwithstanding Smaher and Abeer’s dependence on their parents, ultimately the maintenance of effective immigration control outweighed the private and family rights of the appellant and his family. I do not consider that there was any error in the judge’s approach or the conclusion he reached.

I agree.

I also agree.