Juned Miah v Secretary of State for the Home Department

This is the decision of the panel to which both members have contributed.

By its decision dated 13 July 2015 (appended), the Upper Tribunal set aside the decision of the First-tier Tribunal (the “ FtT ”), promulgated on 09 February 2015, dismissing the Appellant’s appeal against the decision of the Secretary of State for the Home Department (the “ Secretary of State ”) dated 29 October 2014, whereby the Appellant’s application for further leave to remain in the United Kingdom was refused.

We summarise the uncontentous history thus. The Appellant’s date of birth is 11 January 1995 and he is, therefore, now aged 20 years. On 16 October 2008, then aged 13, he entered the United Kingdom having travelled on a direct flight from his country of nationality, Bangladesh. He promptly made a claim for asylum, which was refused on 12 February 2009. On account of his status of unaccompanied minor, he was granted discretionary leave to remain in the United Kingdom until 11 February 2012. This was later extended to 11 July 2012. On 07 July 2012 the Appellant made an application for further leave to remain. This application, for reasons which are unclear, was not determined until 29 October 2014, in the form of a refusal.

In the first of the two major decisions of the Secretary of State, that dated 15 March 2012, the decision maker repeated, at considerable length, the previous refusal of the Appellant’s asylum claim. Next, in purported consideration of section 55 of the Borders, Citizenship and Immigration Act 2009 (the “ 2009 Act ”), the decision maker concluded:

The second of the major decisions of the Secretary of State, dated 29 October 2014, provides the impetus for this appeal. By this further decision, the Appellant’s application for further leave to remain in the United Kingdom was refused, the decision maker, in the context of purporting to consider section 55 of the 2009 Act, stated:

The decision maker then proceeded to consider the Appellant’s claim that he had lost contact with his family in Bangladesh, concluding:

The decision maker then turned to consider the Appellant’s case under the umbrella of Article 8 ECHR. It was noted that in making his further leave to remain application, the Appellant had disclosed a conviction consisting of a breach of a non-molestation order, while not disclosing a police reprimand in respect of an alleged shoplifting incident. These events are dated 19 March 2014 and 02 March 2010 respectively. The penalty imposed consisted of a one year community order. The Appellant was also convicted of a second, related offence of harassment, giving rise to a protection from harassment restraining order of indefinite duration. Both orders remain current. At the time when the decision was made, the decision maker noted, correctly, that both prosecutions were pending. This is followed by the conclusion:

Having, notably, made no distinction between the Rules and Article 8 simpliciter , the decision continues, making two free standing conclusions:

Finally, consideration was given to paragraph 353B of the Rules. The core of the text which follows is found in the following passage:

Paragraph 276(1)ADE of the Immigration Rules (the “ Rules ”) provides, in material part:

Paragraph 353B of the Rules provides:

character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;

compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;

length of time spent in the United Kingdom spent for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused; in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate.

The new provisions of Part 5A of the Nationality, Immigration and Asylum Act 2002 (the “ 2002 Act ”) must also be applied. Section 117A provides:

The main issue which was argued before us was whether the Appellant satisfies the requirements of the Immigration Rules (“ the Rules ”). Both parties were further agreed that the Appellant’s case would also have to be considered outwith the framework of the Rules if it does not satisfy their requirements. We also received some argument on the question of the applicability of section 117B of the Nationality, Immigration and Asylum Act 2002 (“ the 2002 Act ”) to a child.

In evidence, the Appellant adopted his witness statement. The gist of the story recounted by him since arriving in the United Kingdom is that when aged eight years he was (in effect) hired by his parents to a master, to whom he became effectively enslaved, in a distant city. He claimed that he was beaten and ill treated generally. There were very few visits by his parents and contact was eventually lost. He was accompanied by his master to the United Kingdom and abandoned upon arrival. Since then he has lived with various foster parents and, at present, lives alone as a private tenant. He has had no interest in re-establishing contact with his parents since they abandoned him at such a young age and exposed him to the ordeal which he then suffered for some five years. His evidence includes the following:

These findings made, we turn to consider whether the Appellant’s case satisfies paragraph 276ADE(1)(vi) of the Rules. It is common case that, in determining this issue, we should take into account the relevant Home Office Immigration Directorate’s Instruction (“the IDI”). This is entitled ‘Family Migration: Appendix FM, Section 1.0b’ and was published in August 2015. This states, in material part, at paragraph 8.2.3.4:

Decision makers and Judges should take care to apply the correct prism when considering this IDI. Its legal status must be appreciated. It is not a statutory measure. It is, rather, a policy document. Being of this character, it attracts the application of a series of well established principles, four in particular. First, it is an obligatory material consideration in decision making processes. Second, it is not writ in stone. Rather, its contents are to be viewed as a series of flexible and inexhaustive requirements. See Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12, at [21], [26] and [35], per Lord Dyson JSC. We would further emphasise that the IDI is not, and does not claim to be, an exhaustive code. To approach it as a collection of rigid rules and/or a comprehensive edict would be erroneous in law. Finally, it is trite law that IDI’s and kindred instruments do not have the status of law and, thus, are subservient to primary legislation, secondary legislation and the Immigration Rules.

We also draw attention to two particular features of the text of the IDI, highlighted above. The first is the passage dealing with “ original, independent and verifiable documentary evidence ”. We consider that this is to be applied with caution. Decision makers and Judges should be alert to the entire context, including relevant social and cultural factors, with their eyes firmly focused on the realities of life. Furthermore, the instruction to decision makers that they “ must place less weight on assertions which are unsubstantiated ” is equally troubling, as it neglects two truisms. The first is that, in certain cases, assertions may not be capable of being substantiated. The second is that the applicant may be able to satisfactorily explain the absence of substantiation in respect of matters which one would expect to be substantiated. The final aspect of the IDI worthy of comment is its tendency to highlight individual considerations in isolation, detached from other factors. We would emphasise that the public law duty engaged is to take into account all material considerations, weighing them in the round. In this context, we record that, in response to a question from the bench, it was acknowledged on behalf of the Secretary of State that the age, gender, educational achievements and linguistic abilities of the person concerned are (inexhaustively) all material considerations.

We consider that paragraph 276(1)ADE(vi) of the Rules, considered in conjunction with the associated IDI, is to be applied to the Appellant in the following way. He has spent approximately two thirds of his life in his country of nationality, Bangladesh. He has unmistakable linguistic, cultural and social attachments to that country. Any loss of linguistic fluency will be quickly recovered. We have found that he has had no contact, direct or indirect, with his family since arriving in the United Kingdom aged 13. However, there is nothing to suggest that he does not know where they resided before he left. We take into account that he has no educational or vocational qualifications. However, we consider that as a matter of probability he would have remained the servant, or slave, of his master for several more years and he would not have secured any qualifications of this kind in Bangladesh. Having regard to the period during which he has resided in the United Kingdom and the very different culture, language, traditions and social setting to which he has become accustomed, the exercise of reintegrating in his country of nationality will undoubtedly be challenging and difficult. We are satisfied that it will entail hardships for the Appellant. However, taking everything into account, our confident expectation is that such reintegration will be achieved and will not, in the language of the rule, give rise to “ very significant obstacles ”.

As regards paragraph 353B of the Rules, there can be no dispute about the decision maker’s entitlement to take into account the offences of which the Appellant has been convicted. However, a (mere) police reprimand does not have the status of a conviction, while the Appellant’s two actual convictions belong to the bottom end of the scale of criminality and appear to have been actuated by a mixture of immaturity and emotional instability. We consider that refusal of his application on this ground alone would not have been sustainable in law. We now turn to consider Article 8 outwith the framework of the Rules and section 117B of the 2002 Act.

In setting aside the determination of the FtT the Upper Tribunal said the following of s117B:

The Judge’s observations are understandable and unexceptional. In the context of any young child or teenager trafficked to the United Kingdom it would be unlikely that he would be financially independent or have complied with immigration control or have learned to speak English to the minimum standard required. Notwithstanding, and irrespective of the circumstances of the child’s arrival, Part 5A mandates that all these matters weigh against such a claimant in the proportionality balancing exercise. We juxtapose this new statutory provision with the indelible fact that the United Kingdom government has long recognised the particular significance to be attached to the private lives of children. Since the ‘seven year policy’ was set out in DP5/96, some two decades ago, successive governments have acknowledged that where children have spent a moderate period of time in the United Kingdom this will be a weighty factor in determining whether they should be removed (either with or without their parents) (Footnote: ¹) . This policy is today expressed in the IDI noted in [14] above, at 11.2.4:

These statements reflect the recognition that the private life of a child is of a qualitatively different nature from that of an adult. Quite apart from the fact that a moderate period of residence is likely to be of greater impact, influence and temporal significance in a relatively short life, it is less likely that a child will be aware of, much less responsible for, his immigration status.

That said, such policy statements cannot dilute the juridical reality of the new statutory regime. The primary legislation now enshrined in Part 5A of the 2002 Act makes no distinction between adult migrants and child migrants. There is no legitimate exercise of statutory construction which would entitle Judges to devise any such distinction. While the legislature has made special provision for children in the new regime, this has been confined to parental relationships with “ a qualifying child ”, per section 117B(6). Accordingly, the legislative requirement that little weight be allocated to a private life established at a time when a person’s immigration status is precarious applies to both children and adults, without distinction.

While the impact of sections 117B (1)-(5) on children will appear harsh and unfair to many, this is the unavoidable consequence of the legislative choice which Parliament has made. In this context, we draw attention to what this Tribunal decided in Forman (Sections 117A – C considerations) [2015] UKUT 412 (IAC). This decision emphasises that while it is obligatory to have regard to the considerations listed in Section 117B in all cases where proportionality under Article 8(2) ECHR is being determined, the statutory list is not exhaustive. Accordingly, in any given case, the obligatory statutory considerations will be weighed by the Tribunal with all other facts and factors which have a legitimate bearing on the issue of proportionality. In the case of a child it is possible to envisage, in the abstract, a series of considerations which could potentially outweigh the public interest. These might include matters such as parental dominance and influence; trafficking; other forms of compulsion; and the absence of any flagrant, repeated or persistent breaches of the United Kingdom’s immigration regime by the child concerned. Furthermore, the child’s age and personal circumstances at the commencement of the period under scrutiny and thereafter will be obviously material considerations. Viewed panoramically, it seems uncontroversial to suggest that an Article 8(2) proportionality exercise which strikes the balance in a manner which overcomes the public interests engaged is more likely to occur in the case of a child than that of an adult.

We give effect to the provisions of part 5A of the 2002 Act in the present case in the following way. As mandated by the legislature, we attribute little weight to the private life formed by the Appellant in the United Kingdom because his immigration status was at all times precarious. Furthermore, we must give effect to the discrete public interest that persons who seek to remain in the United Kingdom are financially independent: the Appellant is not now, even though an adult, such a person. We further give effect to the overarching public interest in the maintenance of effective immigration controls, per section 117B(1). In the balancing exercise, we take into account that the Appellant’s transition to the United Kingdom clearly involved some form of compulsion, possibly parental and/or involving his slave master; he has lived in the United Kingdom throughout the entirety of his teenage years, a period which is widely acknowledged to be the most important in every person’s development; he has become integrated in United Kingdom society; and he has developed firm social, cultural and linguistic ties with this country.

The Appellant is a young adult, whose 21 ^st birthday is approaching. He is wiser, more mature, more resourceful and better educated than he was upon his arrival in the United Kingdom. He suffers from no special vulnerability. He has no family ties with this country. While we acknowledge that he spent five years in the United Kingdom as a minor, his private life today is not defined by any particular relationships, beyond friendships that could be maintained or replicated abroad. We weigh all of these factors with our findings set out above. The conclusion, which follows inexorably is that this is a case in which the public interest prevails, clearly and decisively.

Accordingly, we dismiss the appeal under the Immigration Rules and, outwith the Rules, Article 8 ECHR.