Secretary of State for the Home Department v Sooreeado Treebhawon & Ors

The se conjoined appeals raise interesting questions relating to the construc tion and application of section 117B (6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) which, so far as the panel is aware, have not previously been the subject of adjudication by the Upper Tribunal.

The Appellants are a family unit consisting of father, one daughter and three sons. All are nationals of Mauritius . The father is aged 44 and the children’s ages range from 11 to 17. Their immigration history is as follows:

In November 2007 the oldest child was given leave to enter the United Kingdom and remain for a period of six months. It appears that both she and the children’s mother entered around this time.

In February 2008, in response to formal overstaying measures, the father confirmed that his wife and oldest child were in the United Kingdom , representing that they would be returning to Mauritius where their other three children resided.

On 04 August 20 10 the second and third of the four children entered the United Kingdom .

On 26 Dec ember 2011 the youngest of the four children entered the United Kingdom as a visitor.

On 01 February 2013 the Appellants’ human rights application was refused.

On 03 April 2013 further representations were made on the Appellants’ behalf.

On 10 June 2014, in response to a request for clarification, the Appellants’ representatives furnished further submissions.

By a decision dated 24 October 2014 on behalf of the Secretary of State for the Home Department (the “ Secretary of State ”), the Appellants’ further human rights application was refused.

The latter decision was challenged by the Appellants by appeal to the First-tier Tribunal (the “ FtT ”). By its decision promulgated on 17 July 2015, the FtT allowed the appeals “ under the Immigration Rules and under Article 8 ”. Upon scrutiny, the FtT decided that t he appeal of the oldest of the four children succeeded under paragraph 276 ADE(1) of the Rules, while the appeals of the other four family members succeeded under Article 8 ECHR out with the Rules.

The Secretary of State applied for permiss ion to appeal on the following two grounds:

At the material time, paragraph 276 ADE of the Immigration Rules provided:

These provisions of the Rules have generated much jurisprudence during the last two years . In R (Amin) v Secretary of State for the Home Department [2014] EWHC 2322 (Admin) it was held that paragraphs 276 ADE – 276 DH and Appendix FM do not constitute a comprehensive Article 8 Code. Thus it is recognised that a claim based on Article 8 can, in principle, succeed either under the prescriptive Article 8 regimes within the Rules or out with the Rules, residually. In Haleemu deen v Secretary of State for the Home Department [2014] EWCA Civ 558, the Court of Appeal espoused the test of “ compelling circumstances ” in respect of claims out with the Rules: see [44] and [77]. In MM (Lebanon) v Secretary of State for the Home Department [2014] EWCA Civ 985 the Court of Appeal, in effec t, disapproved the suggestion in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin), at [29], that there i s an intermediate hurdle to be overcome prior to consid eration of Article 8 claims out with the Rules: per Aikens LJ at [129].

In the Secretary of State’s decision it was noted that the longest of the sojourns of the four chil dren [the oldest, the second Appellant] in the United Kingdom was six years and five months. As the minimum sojourn prescribed by the relevant provision of the Rules , namely par agraph 276 ADE ( 1) ( vi ) is seven ye ars, it was concluded that the four childrens’ Article 8 claims under the Rules must be refused.

In considering the appeal of the oldest child, the FtT stated:

The second limb of the first ground of appeal is that the error of law which we have found above infected the FtT’s decision to allow the appeals of the other four family members out with the Rules. In the key section of its decision, under the rubric of “My Findings”, the FtT devotes most of its attention to the oldest child, the second Appellant. This is followed by a brief final section which yields the following analysis:

Only the second Appellant can succeed under the Rules.

The removal of the other four family members would interfere with the rights to private and family life in play.

The issue is proportionality.

The public interest engaged is the maintenance of immigration control in pursuit of the economic wellbeing of the country .

To require the other four Appellants to leave the United Kingdom would be disproportionate –

We consider that there is a demonstrably clear nexus between the FtT’s decision to allow the second Appellant’s appeal on the ground that her case satisfied the requirements of the Rules and the furth er decision to allow the other four Ap pellants’ appeals out with the Rules. The two are inextricably linked . We have concluded that the first decision is unsustainable in law. Given that the cornerstone of the second decision is the legally unsustainable first decision, it follows inexorably that the sec ond decision cannot survive. It s sole and exclusive rational e is the legally untenable first decision. The materiality of this further e rror of law brooks no argument . Thus all five decision s must be set aside.

The FtT gave consideration to section 117B(6) of the 2002 Act in the context of considering whether the claims of the 1 ^st , 3 ^rd , 4 ^th and 5 ^th Appellants could succeed out with the Article 8 regime of the Rules. The decision states:

Section 117B of the 2002 Act provides:

In the evolving jurisprudence of the Upper Tribunal, the new Part 5 A r egime has been considered in a series of reported decisions. The most comprehensive analysis of its provisions is found in Forman (Sections 117A – C c onsiderations) [2015] UKUT 00412 (IAC), at [17] especially. In that case the Upper Tribunal decided, inter alia , that sections 117A and 177B apply in every case where a court or t ribunal is required to determine whether a decision made under the Immigration Acts breaches any person’s rights under Article 8 ECHR. It further held that in considering the public interest question, the Court or Tribunal must have regard to the considerations listed in section 117B in all cases : per section 117A(1) and (2). Other major pronouncements of the Upper Tribunal on sections 117A – 117B are found in AM (Section 117B) Malawi [2015] UKUT 0260 (IAC) and Deela h and Others ( section 117B – ambit ) [2015] UKUT 00515 (IAC).

None of the above decisions addresses the specific issue which arises in the present appeals. We formulate this issue in the following terms:

In Deela h and Others , th e Upper Tribunal provided the following overview of the new Part 5A regime, at [ 19 ] -[21 ] :

In answering the question formulated in [14] above, w e begin by subjecting Part 5 A of the 2002 Act to the following further analysis:

Part 5A is expressed to be applicable in every case where a court or t ribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s rights under Article 8 ECHR.

In cases where an interference with su ch rights is demonstrated, the court or t ribunal must , in determining proportionality, have regard to the considerations listed in section 117B in all cases and to the additional considerations enumerated in section 117C in all cases involving the deportation of f oreign criminals.

Turning to section 117B, the first port of call is the cross heading “Article 8: p ublic i nterest c onsiderations applicable in all cases ”.

Section 117B comprises, in subsections (1) – (3), three unequivocal Parliame ntary statements of the content of the public interest: the maintenance of effective immigration controls, the ability to speak English and financial independence. En passant, a striking feature of the formulation of the second and third of these statements of the public interest is the exposition of their rational e .

Th e next division of section 117B, in subsections (4) and (5), consists of separate statements that “ little weight ” should be given to three specified factors.

Next, and finally, there is an unequivocal statement of what the public interest does not require in section 117B(6): this is the only public interest pronouncement in section 117B framed in these negative terms.

T he two “ little weight ” provisions of section 117B do not readily satisfy the appellation of Parliamentary statements of the public intere st , in view of the terms in which they are phrased and compared with the formulation of the public interest statements in subsections (2), (3) and (6). Furthermore, the two “ little weight ” provisions relate to matters which, in practice, are invoked by the person concerned, rather than the Secretary of State, namely a private life and/or a relationship formed with a qualifying partner during such person ’ s sojourn in the United Kingdom . As noted in Deela h , at [21], the focus of these discrete statutory provisions is choices and decisions which have been made by the person or persons concerned in their lives and lifestyles. We consider that section 117B(4) and (5 ) contain a recognition that the factors therein sound on the question of proportionality , where they arise , but are, by unambiguous Parliamentary direction, to be accorded little weight. We further consider that, properly construed, section 117B(4) and (5) are not Parliamentary statements of the public interest. They are, rather, Parliamentary instructions to courts and t ribunals, to be applied in the balancing exercise, that little weight should be given to the matters specified where relevant . Thus analysed, the function of the court or t ribunal concerned is not simply to have regard to these factors, in cases where they arise. Rather, they must be considered and given little weight. This is in contrast with the classic public law case whereby the decision maker, having discharged the primary duty of identifying all relevant facts and considerations, is free to accord to these such weight as he rationally considers appropriate.

The resolution of the second ground of appeal turns on how we construe section 117B(6), considered in its full statutory context. In performing this exercise, we derive no assistance from the construction which we have given to section 117B(4) and (5 ). We consider it instructive to juxtapose section 117B(6) with its three public intere st siblings, namely s ection 117B(1), (2) and (3) . Section 117B(6) , notionally, follows these three provisions sequentially. Notably, Parliament has not estab lished any correlation between s ection 117B(6) and the other three sibling public interest provisions. In particular, section 117B(6) is not expressed to be “ without prejudice to ” or “ subject to ” any of the other three related provisions. Furthermore, section 117B(6) is formulated in unqualified terms: in cases where its conditions are satisfied, the public interest does not require the removal from the United Kingdom of the person concerned. In this respect also it different from its siblings, which contain no comparable instruction.

The next notable feature of the new statutory regime is that i n section 117B (6) Parliament has chosen to differentiate between those who are, and who are not, liable to deportation. It has provided a separate and special dispensation for members of the latter class. This is harmonious with one of the overarching themes of Part 5A, which is to subject foreign criminals who are liable to deportation to a more rigorous and unyielding regime . In the case of those who are not liable to deportation , P arliament has chosen to recognise that, where the specified conditions are satisfied, a public interest which differs from those public interests expressed in Section 117B(1)-(3) is engaged. The most striking feature of this discrete public interest is its focus on one of the most vulnerable cohorts in society, namely children. The focus is placed on the needs and interests of these vulnerable people. Furthermore, t he content of this public interest differs markedly from the other three, all of which are focused on the interests of society as a whole. In enacting Section 117B(6), Parliament has given effect to a public interest of an altogether different species . Notably, this new statutory provision is closely related to and harmonious with what has been decided by the Upper Tribunal in a number of cases, namely that there is a free standing public interest in children being reared within a stable family unit. The effect of Part 5A of the 2002 Act is, of course, that this discrete public inter est must yield to more potent public interests in certain c ircumstances.

In section 117B (6) , Parliament has prescribed three conditions, namely :

s uch person has a genuine and subsisting parental relationship with a qualifying child , namely a person who is under the age of 18 and is a British citizen or has lived in the United King dom for a continuous period of seven years or more ; and

i t would not be reasonable to expect the qualifying child to leave the United Kingdom .

Giving effect to the analysis above, in our judgment the underlying Parliamentary intention is that where the three aforementioned conditions are satisfied the public interests identified in section 117B(1) – (3) do not apply.

It would further appea r that the “ little weight ” provisions of section 117B(4) – (5) are of no application. If Parliament had been desirous of qualifying, or diluting, section 117B(6) by reference to either section 117B(4) or (5), it could have done so with ease. It has not done so. Fundamentally, there is no indication in the structure or language of Part 5A that in cases where, on the facts, section 117B(4) and/or (5) is engaged, the unambiguous proclamation in Section 117B(6) is in some way weaken ed or demoted . To this may b e added the analysis in [18] - [ 21 ] above. Clearly, there is much to favour this construction. However, conscious of the limits of the judicial function, we decline to provide a definitive answer to this discrete question, for two reasons. First, we received no argument upon it. Second, it does not clearly fall within the grant of permission to appeal.

Similarly, the issue of the interplay between Section 117B(6) and the Immigration Rules does not a rise directly in this appeal . In this context, we draw attention to the leading reported decision of the Upper Tribunal, Bossade (Sections 117A-D: Inter-relationship with Rules) [2015] UKUT 415 (IAC). In that case, t he Upper Tri bunal held that, ordinarily, a court or t ribunal will first consider an appellant’s Article 8 claim by reference to the Immigration Rules, the purpose of this exercise being to decide whether the relevant qualifying conditions are satisfied by the person concerned. This exercise is performed without reference to Part 5A. The latter regime is engaged directly only where the decision making process reaches the stage of concluding that the person does not satisfy the requirements of the Rules. Thereafter, in any consideration of the case outwith the framework of the Rules, and subject to the application of the Razgar tests, Part 5A will fall to be applied in the decision maker’s determination of the proportionality question. It follows that i n any case where the parent concerned is unable to satisfy the requirements of the Rules section 117B(6) may conceivably apply: all will depend on the facts as found by the tribunal.

We apply the analysis and conclusions above to the decision of the FtT in the following way:

The FtT committed no error of law in giving consideration to section 117B(6) of the 2002 Act in deciding whether the claims of the other four Appellants could succeed outwith the Article 8 regime of the Rules.

The FtT’s application of Section 117B(6), which did not involve consideration of any of the other provisions of Section 117B , was similarly free of error.

Accordingly, the second ground of appeal fails.

For the reasons explained in [8] – [10] above, t he first ground of appeal succeeds. Accordingly, we set aside the decision of the FtT. The decision will be re - made in this forum.

The Appellant’s bundle of evidence, indexed and paginated, will be lodged with the Upper Tribunal and served on the Secretary State by 08 January 2016 at latest.