AM v Secretary of State for the Home Department

The Appellant was granted entry clearance in September 2006 as a student. There followed successive decisions to vary his leave to remain, but ultimately his leave to remain expired on 2 December 2012. In the meantime his wife and eldest daughter were granted entry clearance to join him as his dependents in January 2007, and a second child was then born to the couple in the UK on 3 April 2011. All of the family are citizens of Malawi .

As an overstayer , o n 24 December 2012 , t he Appellant applied for a grant of leave to remain . In so doing he rel ied upon a risk of a breach of the Article 3 rights of his wife in the event of her removal to Malawi . That application was refused on 27 September 2013.

Th e Appellant then made an application on his own behalf for asylum on 7 November 2013 . In so doing he relied upon the risk of harm that he said his eldest daughter would face in the event of her removal to Malawi . At interview he accepted that neither he nor his wife faced any risk of harm in the event of their removal to Malawi , and that his concerns were focused upon his eldest daughter and the consequences for her education if the family returned. The asylum application was refused on 6 August 2014, and in consequence a series of individual decisions to remove the Appellant and each member of his family to Malawi as overstayers were made by the Respondent .

The Appellant alone lodged an appeal against the removal decision that was made in relation to him. T hat appeal was dismissed on asylum , humanitarian protection, and human rights grounds by First Tier Tribunal Judge Hands in a d etermination promulgated on 2 2 September 20 14 . Permission to appeal that decision was granted to the Appellant by First Tier Tribunal Judge Simpson on 16 October 201 4 .

The matter c ame before a Presidential panel of the Upper Tribunal on 5 December 2014. Based up on a combination of the application for permission to appeal, the grant of permission , and the oral submissions made at that hearing , the following questions of law were identified as arising, and d irections were made for their determination . (For administrative reasons the Upper Tribunal has not been able to reconstitute the same panel, but the parties have no objection to that and are content to treat the hearing of 5 December 2014 as a d irections hearing.)

The legal consequences of the failure of the First-tier Tribunal (the “FtT”) to consider all of the factors listed in section 117B of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”), taking into account what is mandated by section 117A(2)(a).

Whether, having regard to section 117B(5) of the 2002 Act, the FtT erred in law in holding, in [52], that the private lives of all members of the Appellant’s family were established during a period when their immigration status was precarious “ in that it was of a temporary nature dependent upon the Appellant’s right to remain in the United Kingdom as a student ”.

Whether, independent of the two issues formulated above, the determination of the FtT is erroneous in law having regard to section 55 of the Borders, Citizenship and Immigration Act 2009. [See, in this respect, the recent decision of the Upper Tribunal in JO Nigeria [2014] UKUT 00517 (IAC) . ]

Section 19 of the Immigration Act 2014 introduced into the Nationality Immigration and Asylum Act 2002 a new Part 5A, headed “Article 8 of the ECHR: Public Interest Considerations”. These new provisions are set out in s ections 117A-D of the 2002 Act , which were brought into effect on 28 July 2014 pursuant to Article 3 of The Immigration Act 2014 (Commencement No 1, Transitory and Saving Provisions) Order 2014. They provide, in so far as is material to this appeal , as follows ;

In this Part –

is a British citizen, or,

has lived in the United Kingdom for a continuous period of seven years or more

is a British citizen, or,

who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 – see section 33(2A) of that Act.

It is common ground that although the judge in the course of her decision did make express reference both to s117A(3), and to s117B(5), she did not therein set out in full either the provisions of s117A, or s117B, and , she did not make any express reference to any of the other provisions of s117A-D.

The Appellant has sought to persuade us that this is, of itself, an error of law that is sufficient to require the decision to be set aside and remade. We disagree. It is not necessary for the FtT to se t out in full in each of its decisions each of the statutory provisions that it seeks to apply to the evidence placed before it in the course of an appeal. Still less is it necessary to make reference to statutory provisions that have no application to that evidence. What is required of the FtT is no more, and no less, than that its decisions should demonstrate that the relevant statutory provisions have been taken into account , and that they have been applied to the facts of the particular appeal; AJ ( India ) v SSHD [2011] EWCA Civ 1191 at [43]. That is a requirement of substance, rather than of form, and in this respect we would respectfully reiterate the caution expressed by Dyson LJ in Baker v SSCLG [2008] EWCA Civ 141 at [37];

Accordingly we reject the suggestion that the effect of s117A(2) is to render unlawful a decision of the FtT simply for failure to set out in turn each of the provisions of s117A and s117B, whether or not they are relevant to the facts of a particular appeal. We can find no support for any contrary view in either the decision of the Court of Appeal in YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 , or the decisions of the Upper Tribunal in R (on the application of Luma Sh Khairdin ) v Secretary of State for the Home Department (NIA 2002: Part 5A) IJR [2014] UKUT 00566 (IAC), or Dube (ss117A-117D) [2015] UKUT 90 (IAC) .

In our judgement t he FtT’s duty is quite clear . By virtue of s117A(2) the FtT is required (in particular) to have regard to the considerations listed in s117B, and where the appeal concerns the deportation of a foreign criminal, the considerations listed in s117C. Th e FtT has no discretion to leave one of those considerations out of account, if that is a consideration that is raised on the evidence before it. Equally, there can be no error of law in the failure of the FtT to have regard to one of those considerations if the evidence before the FtT does not raise it. Thus the circumstances of a single man who asserts no relationship with a qualifying partner or child do not require the FtT to specifically set out, and then discount, s117B(6).

On the other hand, as the Upper Tribunal pointed out in Dube [23] the considerations set out in ss117B-117C are not rendered an exhaustive list by s117A(2). If there are other relevant considerations raised by the evidence then the FtT must have regard to them.

Although the judge did not in her d etermination make specific reference to s117B(1) or set that provision out in full, it is plain from its terms [57] that she did direct herself to the effect that the maintenance of effective immigration controls was in the public interest.

There is also in our judgement no requirement that the FtT should pose and answer the same question more than once, simply as a matter of form. Thus since both paragraph 276ADE(1)(iv ) of the Immigration Rules , and s117B(6), both raise the same question in relation to a particular child, of whether or not it would be reasonable to expect that child to leave the UK: it is a question that need only be answered once. Although the judge did not make specific reference to s117B(6) or set its provision out in full, it is plain from the terms of her d etermination at paragraphs 30-37, 48-52, and 56-58 , that she did consider at some length the circumstances of the children and their ability to relocate to Malawi. There is no suggestion before us that the judge failed to have regard to any material circumstance relating to either child. The mere presence of the children in the UK, and their academic success, was not a “trump card” which their parents could deploy to demand immigration status for the whole family; Butt v Norway App 47017/09 4 December 2012, and EV (Philippines) and others v Secretary of State for the Home Department [2014] EWCA Civ 874.

Whilst we heard extensive argument upon the purpose and effect of s 117B (2) and s117B(3), we are satisfied that ultimately the matter is quite straightforward. Upon their proper construction n either s117B(2) , nor s117B(3) , grant s any form of immigration status to an individual who do es not otherwise qualify for that status , b ecause they have failed to meet the requirements set out in the Immigration Rules for the grant of that status . If i t was the intention of Parliament that the requirements of the Immigration Rules should be over-ridden , merely because an individual could establish that they were able to speak English, or were financially independent , to some degree, then we are satisfied that Parliament would have sa id so in the clearest terms. In addition we consider that Parliament would have considered it necessary to set out what degree of fluency, or , level of financial independence was required of the individual , and the immigration status that the individual would be entitled to once it had been demonstrated . Plainly these statutory provisions do no such thing. One must continue to look to the Immigration Rules to discern what Parliament considers are the requirements to be met by a claimant, and the length of the period of leave to be granted to them if those requirements are met.

What then is their purpose? W e are satisfied that s117B(2), and s117B(3), were intended by Parliament to meet, and to finally dispose of, the arguments that have from time to time been advanced to the effect that the language and/or the financial requirements of the Immigration Rules should either be ignored altogether , or , should carry little weight , when the Tribunal is weighing the proportionality of a decision to remove in the context of the consideration of an individual’s Article 8 rights ; Bibi [2013] EWCA Civ 322, and MM (Lebanon) [2013] EWCA Civ 985 . That view is strengthened by the Human Rights Memorandum that was published by the Respondent as an accompaniment to the 2014 Act [71-73] . In short we are satisfied that s117B(2) and s117B(3) can only properly be read as reinforc ing the statement of princip le that is set out in s117B(1), as indeed the Appellant accepts both s117(4) and s117(5) should be read .

Read in that way, the arguments sometimes advanced that depend upon the inferior status of the Immigration Rules to primary legislation, and the lack of full democratic legitimacy, are rendered sterile; R (on the application of Onkar Singh Nagre ) v SSHD [2013] EWHC 720 (Admin) at [25].

It follows that we would respectfully disagree with the concluding remark of Upper Tribunal Judge Lane in R (on the application of Luma Sh Khairdin ) v Secretary of State for the Home Department (NIA 2002: Part 5A) IJR [2014] UKUT 00566 (IAC) at [59];

The mere fact that the evidence in a particular case establishes fluency or financial independence to some degree, does not prevent the Respondent from relying upon these matters as public interest factors weighing against the claimant. The Respondent would only be prevented from doing so if a claimant could demonstrate fluency, or financial independence, to the level of the requirements set out in the Immigration Rules. There was therefore no error of law in the Judge’s approach to the issues of fluency and financial independence in the context of her consideration of s117B. The Appellant could obtain no positive right to a grant of leave to remain from either s117B (2) or (3), whatever the degree of his fluency in English, or the strength of his financial resources.

How then should the FtT have approached s117B(4) and s117B(5)? Whilst the parties could see no difficulty of interpretation raised by the phrase “ at a time when the person is in the United Kingdom unlawfully” as used in s117B(4), the same could not be said of s117B(5) and the phrase “ at a time when the person’s immigration status is precarious” .

T he term “ precarious” as used in s117B(5) , is not defined with in s117D . We are not satisfied that any significant a ssistance with its definition in this statutory context can be obtained from past judicial use of the term “ precarious immigration status ” , when it is plain that the term “ precarious ” is one that has been used judicially both domestically, and in Strasbourg, to describe a variety of different situations, and sometimes to describe an individual without any lawful status. As identified in Nagre [39]

By way of example only, we note that in Arvelo Aponte v The Netherlands (28770/05) at [56 ] and [ 59] the term was used by the EC t HR in relation to the whole of the period of time spent by the claimant in the Netherlands comprising; ( i ) the period of time the claimant held an initial tourist visa, (ii) the subsequent period of time during which she held a provisional residence visa issued to her to enable her to make an application for a permanent residence permit, and, (iii) the subsequent period of time during which she remained in the Netherlands in the face of the refusal of that permit, and the exclusion order that was then made against her, whilst she pursued appeal proceedings.

Domestically, in the recent decision of Green J in Ahmed v Secretary of State for the Home Department [2014] EWHC 300 the term was used in relation to the period of time that the claimant was an overstayer, and thus when that individual was in the UK unlawfully.

Our starting point must therefore be that Parliament has now dr a w n a sharp distinction between a ny period of time during which a person has been in the UK “ unlawfully ” , and a ny period of time during which that person’s immigration status in the UK was merely “ precarious ” . We are satisfied that those who at any given date held a precarious immigration status must have held at that date an otherwise lawful grant of leave to enter or to remain. They must have enjoyed some immigration status within the UK at the given date, because i f that were not the case, then their presence in the UK would have been unlawful at that date. Th us we are satisfied that Parliament envisaged that th e immigration histor y of a particular individual might disclose periods when they had enjoyed lawful immigration status in the UK , and periods when they were in the UK unlawfully because they had enjoyed none . Some m ight enter unlawfully and never acquire a grant of leave. Others might subsequently acquire a grant of leave . Some might enter lawfully but then fail to obtain a variation of their leave. Others might always have held a grant of leave. We regard t h e immigration history of the individual whose Article 8 rights are under consideration a s an integral part of the context in which any Article 8 decision is made, whether by the Respondent or the FtT.

W e reject the suggestion that some yardstick for the identification of whether or not a period of lawful immigration status is “ precarious ” , might be found by reference to its length. We can see no basis for such an approach, not least because that would impose upon the judiciary the burden of identifying where that boundary lay, which cannot have been Parliament’s intention. If the answer was to be found in the length of the period then Parliament would simply have said so. Nor does the statute oblige the FtT to descend to adopting the approach of affording subtle gradations of “little weight” to the elements of private life established during different periods of time. Whether an individual was present unlawfully, or had a precarious immigration status, Parliament has required the FtT to give little weight to the “private life” relied upon. The distinction in approach to the issue of weight is to be found in s117B(4) so that little weight is also to be given to a relationship formed with a qualifying partner at a time when the claimant is present unlawfully. It is open to the FtT to give such weight as it sees fit to such a relationship formed at a time when the individual’s immigration status was precarious, but the FtT is not required to give that relationship little weight any more than it is required to give it significant weight.

Nor is there any merit in our judgement in the suggestion that the answer is to be found in an individual’s subjective belief that they w ould in the future be able to extend the period of leave that ha d been granted to them. The test must be an objective one.

That approach is in our judgement entirely consistent with the approach of the ECtHR to those families with children who seek to resist removal on the basis of their “private life” from a host state when none of them is a citizen of their host; Alidjah-Anyame v The United Kingdom App 39633/98 4 May 1999, and Sarumi v The United Kingdom App 43279/98 26 January 1999.

In our judgement all those who have been granted by the Respondent a defined period of leave to enter the UK , or , to remain in the UK (which includes both those with a period of limited leave to remain , and those with a period of discretionary leave to remain), hold during the currency of that leave, an immigration status that is lawful, albeit “ precarious ” . Even if the individual genuinely holds a legitimate expectation that their leave will ultimately be extended further by the Respondent , they have no absolute right to insist that this will occur , whether or not they meet the requirements of the Immigration Rules at the date of their application ; HSMP Forum UK Limited [2008] EWHC 664. Still less will those who merely hold a genuine , and well founded belief , that they will at some future date be able to meet the requirements of the Immigration Rules and thus be able to obtain an extension ; E-A (Article 8 – best interests of a child) Nigeria [2011] UKUT 00315 (IAC) .

In all such cases, in order to obtain the variation that they seek (whether to gain a further grant of leave wh ich is limited in duration , or is indefinite) the individual will need to meet at some future date the requirements of the Immigration Rules that are then in force ; Odelola v Secretary of State for the Home Department [2009] 1WLR 1230 . The ability of the individual to do so is not capable of prediction in advance – even if at any given moment during the currency of their existing leave the individual genuinely believe s that they are continuing to meet the requirements attached to their existing grant. Indeed the ability of those who have not yet been granted indefinite leave to remain, to obtain a variation of their leave in the future , will probably always depend in part upon matters that are outside their control – whether that be the actions of others, or the future prosperity of themselves or others.

During the course of argument we were referred to Chapter 13 of the IDIs , version 5.0 published on 28 July 2014, entitled “Criminality Guidance in Article 8 ECHR cases”. At paragraph 4.4.5 appears the following ;

Again, whilst in no way binding upon any court, one can see that the Respondent ’s view of what the term “precarious” meant where used in s117B is entirely consistent with out own.

In consequence we are satisfied that the judge made no material error of law in holding, as she did, that the private lives of all of the members of the Appellant’s family were established in the UK at a time “ when t heir immigration status was precarious in that it was of a temporary nature dependent upon the Appellant’s right to remain in the United Kingdom as a student ”. During the periods in which the members of the family had the benefit of a grant of leave to remain their immigration status was “precarious” for the purpose of s117B(5). To the extent that the FtT did fail to identify with clarity that for a period of time the members of a family held no immigration status, and that they were present unlawfully when their most recent application for leave was made , there could be no material error of law that could count in the Appellant ’s favour. First it would be entirely reasonable to consider that if any distinction was to be drawn between the two periods of time, there was a greater public interest in the removal of those present unlawfully. Second the statutory consequences for the weight that the FtT could give to the private life relied upon was the same. Whether by virtue of s117B(4) , or s117B(5) , the FtT was required to give that private life little weight. In fact, t he text of the Judge’s decision, when read as a whole, shows that she did have in mind both the period during which the claimant was in the UK unlawfully, the period in which he held a grant of leave to remain, and, that she had properly distinguished between the lengths of those periods in the course of her analysis of the immigration history of the family [51]. That was the context in which she had to consider the Article 8 appeal before her. This was after all a family who would be removed to Malawi together, and so the immigration decisions under appeal did not result in any interference in the “family life” enjoyed by the members of the family together. Thus the Judge properly approached the appeal as a “private life” appeal.

To put the matter shortly, it appears to us that a person’s immigration status is “ precarious ” if their continued presence in the UK will be dependent up on their obtaining a further grant of leave. It is precisely because such a person has no indefinite right to be in the country that the relationships they form ought to be considered in the light of the potential need to leave the country should that grant of leave not be forthcoming.

Of course i n some circumstances i t m ay be that even a person with indefinite leave to remain, or a person who has obtained citizenship, enjoys a status that is “precarious” either because that status is revocable by the Secretary of State as a result of their deception , or because of their criminal conduct . That is a different set of circumstances to these , but w e can see no answer to the point that , vitiated by dishonesty, a grant of indefinite leave to remain would be susceptible to curtailment on proper grounds with immediate effect , with the consequent removal of the immigration status previously enjoyed. The Appellant did not seek to persuade us, correctly in our judgement, that this was the sole basis upon which an individual would hold a precarious immigration status. If that had been Parliament’s intention it would have been a simple matter to spell it out. Equally, the decision by an individual with a grant of indefinite leave to remain to embark upon a course of criminal conduct, ( even if it would not be sufficient from the outset to trigger a decision by the Respondent under the automatic deportation provisions of the 2007 Act) would probably be sufficient to render his status precarious. In these cases the person is well aware that he has either initially, or subsequently, imperilled the status he had, and cannot viably claim thereafter that his status is other than precarious.

I ndependent ly of the requirements of s117A-117D of the 2002 Act, the FtT was required by s55 of the 2009 Act to consider in some detail the circumstances of the children of the family; JO Nigeria [2014] UKUT 00517 (IAC ) .

In the circumstances of this family only the elde st child was a “qualifying child” as defined in s117D(1). By virtue of her entry to the UK in January 2007 , it was not in dispute before the FtT that she had lived in the UK for a continuous period of seven years or more at the date of the appeal hearing. As a result the FtT was required to consider her position by reference to s117B(6). There was no dispute before the FtT that the Appellant as her father had a genuine and subsisting parental relationship with his eldest daughter is child – thus the only issue was whether or not it would be reasonable to expect her to leave the UK .

As set out above, th e question posed in relation to the eldest child by s117B(6) was the same question posed in relation to both of the children by paragraph 2 76ADE(1)(iv ) . I t was a question that was posed and answered by the judge in the proper context of whether it was reasonable to expect each of those children to follow her parents (because they had no right to remain) to their country of origin ; EV . We reject the suggestion that this question needed to be posed and answered in relation to each child more than once.

The circumstances of each child did require separate consideration, but it is abundantly clear from what was a n entirely appropriate level of analysis of the evidence relating to them, that this is precisely what the judge sought to do. T o be sustainable, t he criticisms levelled against the judge’s decision would require the concluding passage of the d etermination to be read in isolation, rather than for it to be read as a whole. Such a criticism is plainly ill founded , and at this point we would respectfully reiterate the guidance of Pill LJ in AJ ( India ) [2011] EWCA Civ 1191 .

The younger child of this family had not then been diagnosed with autism [32], and that remains the position today . Whilst she has both behavioural and delayed speech development characteristics that would give any parent cause for real concern, the evidence placed before the FtT fell well short of establishing either that she could not access the care and assistance that she then required, or might need in the future. Nor did it establish any well founded fear for her safety upon return. Her characteristics did not establish that it was unreasonable to expect her to live as a member of her family in the country of which the whole family were nationals.

There was no reason to infer that any interruption to the education of the elder child upon return to Malawi would be any more significant than that faced by any child forced to move from one country to another by virtue of the careers of their parents. Nor should the difficulties of a move from one school to another become unduly exaggerated. It would be highly unusual for a child in the UK to complete the entirety of their education within one school. The trauma, or excitement, of a new school, new classmates and new teachers is an integral part of growing up. In too many appeals the FtT is presented with arguments whose basic premise is that to change a school is to submit a child to a cruel and unduly harsh experience. Indeed, as if to illustrate the point, we note that the eldest child of this family has been required to move schools, and move from one end of the UK to the other, as a result of the decisions of her parents. The evidence does not suggest she suffered any hardship or ill effect from so doing.

By the date of the hearing t he Appellant was a highly educated and well qualified man, and it would be reasonable to suppose that the educational qualifications he had acquired would stand to his considerable benefit in the labour market within Malawi upon return . He had been able to gain a degree in agriculture from the University of Malawi , and he had used that degree when working for six years in Malawi in that field. He had won scholarships in Malawi and in the UK, in order to finance his further study in the UK, no doubt in the expectation that he would r eturn to Malawi , and put that further education to use in th at country for the benefit of its population generally, and his own circumstances .

Thus the judge was entitled to conclude, as she did, that this Appellant was well placed to seek out, and pay for any assistance in Malawi that he might consider either of his daughters required; whether that be in the field of autistic spectrum disorder physiotherapy , speech therapy, or education generally. There was every reason to suppose that both children would be able to access both primary and secondary education in Malawi . There was no evidential basis upon which the judge could find that either of them would be denied the opportunity of tertiary education, or the ability to access it if they attained the educational threshold requirements. The reports relied upon were written in general terms, and thus failed to have any proper regard to the family’s true circumstances.