|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> SC (Bangladesh) v Secretary of State for the Home Department  EWCA Civ 3069 (11 December 2018)
Cite as:  EWCA Civ 3069
[New search] [Context] [View without highlighting] [Printable PDF version] [Help]
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION ANS ASYLUM CHAMBER)
The Royal Courts of Justice
Strand, London WC2A 2LL
B e f o r e :
LORD JUSTICE HAMBLEN
LORD JUSTICE HENDERSON
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent|
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Email: email@example.com
(Official Shorthand Writers to the Court)
Mr R Dunlop (instructed by Government Legal Department) appeared on behalf of the Respondent
Crown Copyright ©
LORD JUSTICE HAMBLEN: There will be a transcript of this judgment which will be provided to the appellant in due course.
The Factual and Procedural Background
"52. I note that the Appellant and Ms [K] are married with two children. All of them are citizens of Bangladesh, and none of them has any immigration status in the UK.
53. I am not satisfied that either the Appellant or Ms [K] has told the truth about the attitude of her parents to their marriage. Whilst a possible risk of harm at their hands was adverted to by the Appellant at his asylum interview, this was a matter of so little consequence to them that neither referred to it when making their witness statements of 5 April 2016, and Mr Mahmud made no reference to it when setting out the different limbs of the appeal at the opening of the hearing. It is in my judgment overwhelmingly likely that Ms [K] came to the UK for the purpose of forming a relationship with the Appellant, and that she was never a genuine student.
54. In all the circumstances of this case I reject the claims that the Appellant or Ms [K], or their children, face any risk of harm from any member of their extended families. On the contrary I am satisfied that neither has told the truth about the attitudes of their families to them, and in my judgement both have the ability to secure shelter and support from their families upon return to Bangladesh. Both children will no doubt benefit from being able to form and enjoy a relationship with their grandparents and extended family in Bangladesh.
55. I reject the suggestion that either the Appellant or Ms [K] meet the requirements of the Immigration Rules for a grant of leave to remain of any length, whether by reference to paragraph 276ADE or any other provision."
The FTT also rejected the Article 8 claim finding as follows:
"56. I am satisfied that the Article 8 rights of the Appellant, Ms [K] and the children are all engaged by the decision under appeal to the extent that they do enjoy a 'private life' in the UK which they will not be able to pursue in Bangladesh, but I am not satisfied that the decision affects their ability to enjoy 'family life' together for the purposes of Article 8. Plainly they can do so in Bangladesh. Whilst I am not satisfied that the Appellant had told the truth about this relationship with his two sisters in the UK, the evidence does not establish (and he does not suggest) that his relationship with them or the members of their own families is such as to establish 'family life'.
57. There is little evidence of what the 'private life' of the Appellant, Ms [K] and the children consist of. Neither girl is old enough for school; both are infants. Their best interests are plainly served by remaining with and being brought up by their parents, but there is no reason why that should not occur to their benefit in Bangladesh. After all on her own account their mother was able to secure tertiary education in Bangladesh and pursue a career as a secure tertiary education in Bangladesh and pursue a career as a teacher, and both Ms [K's] parents and the Appellant's parents are said to live in Sylhet where there are both educational and employment opportunities available for both the children and their parents.
58. I note that the maintenance of immigration controls is in the public interest, s117B(1), and that the appellant's position in the UK has always been unlawful. Ms [K's] position was initially precarious but latterly since October 2013 it too has been unlawful.
59. I note that neither the appellant nor Ms [K] speak English fluently. Indeed they appear to have very little fluency in English. On the evidence before me they are not financially independent. It is plain from the evidence that they have accessed medical facilities for Ms [K] pregnancies without making any attempt to pay for them and without any entitlement to them; s117B(2)(3).
60. I note the guidance to be found in AM (s117B) Malawi  UKUT 260 (IAC) and Forman (s117A-C considerations)  UKUT 412 (IAC).
61. I am satisfied that on the facts of this case it is both reasonable and proportionate to expect the Appellant and his family to remove to Bangladesh where they can live together in safety, with the support of their extended families.
62. Accordingly I am not satisfied that there are compelling and compassionate reasons disclosed by the evidence as to why the decision under appeal is disproportionate. Looking at the evidence in the round I dismiss the Article 8 appeal."
The Statutory Framework
"117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts-
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard-
(a) in all cases, to the considerations listed in section 117B, and
(3) In subsection (2), 'the public interest question' means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2)
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b) it would not be reasonable to expect the child to leave the United Kingdom.
117D Interpretation of this Part
(1) In this Part-
'qualifying child' means a person who is under the age of 18 and who-
(a) is British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more."
The Grounds of Appeal
(1) The FTT did not consider the best interests of the children in isolation from misconduct of their parents;
(2) The FTT did not consider the best interests of the children first;
(3) The FTT's approach to section 117B was inappropriately "absolute" and/or "rigid".
The Appellant's Submissions
(1) In the proportionality balancing exercise, the best interests of a child must be assessed in isolation from other factors, such as parental misconduct.
(2) The best interests assessment should normally be carried out at the beginning of the balancing exercise;
(3) The "little weight" provisions in part 5A NIAA 2002 do not entail an absolute, rigid measurement or concept: "little weight" entails a spectrum which will "result in the measurement of the quantum of weight considered appropriate in the fact sensitive context of every case";
(4) "In every balancing exercise, the scales must be properly prepared by the judge, followed by all necessary findings and conclusions, buttressed by adequate reasoning."
(1) The "best interests of the children were not considered in isolation from other factors such as parental misconduct";
(2) The FTT did not consider the best interests of the concern "at the beginning of the balancing exercise";
(3) The FTT's approach to the consideration and the section 117B NIAA 2002 was "absolute" and amounted to a "rigid measurement" and there was a failure to appreciate that "little weight" involved "a spectrum".
The SSHD's Submissions
Ground (1) Failure to consider the best interests of the children in isolation from their parents' misconduct.
Ground (2) Failure to consider the best interests of the children first
Ground (3) The FTT approach to section 117B was too "absolute" and/or "rigid"
"... the effect of section 117A(2)(a) is clear. It recognises that the provisions of section 117B cannot put decision-makers in a strait-jacket which
constrains them to determine claims under article 8 inconsistently with the article itself. Inbuilt into the concept of 'little weight' itself is a small degree of flexibility; but it is in particular section 117A(2)(a) which provides the limited degree of flexibility recognised to be necessary in para 36 above. Although this court today defines a precarious immigration status for the purpose of section 117B(5) with a width from which most applicants who rely on their private life under article 8 will be unable to escape, section 117A(2)(a) necessarily enables their applications
occasionally to succeed. It is impossible to improve on how, in inevitably general terms, Sales LJ in his judgment described the effect of section 117A(2)(a) as follows:
'53. … Although a court or tribunal should have regard to the consideration that little weight should be given to private life established in [the specified] circumstances, it is possible without violence to the language to say that such generalised normative guidance may be overridden in an exceptional case by particularly strong features of the private life in question …'"
AM (Malawi) and Khairdin
"The further submission on Ms Rhuppiah's behalf is and has been that the effect of section 117B(2) and (3) is to cast her ability to speak English and her financial independence as factors which positively weigh in her favour in the inquiry under article 8. But the further submission is based on a misreading of the two subsections and was rightly rejected by Judge Blundell upheld by the Court of Appeal, just as an analogous submission was rejected in para 18 of the decision in the AM case, cited at para 38 above. The subsections do not say that it is in the public interest that those who are able to speak English and are financially independent should remain in the UK. They say only that it is in the public interest that those who seek to remain in the UK should speak English and be financially independent; and the effect of the subsections is that, if claimants under article 8 do not speak English and/or are not financially independent, there is, for the two reasons given in almost identical terms in the subsections, a public interest which may help to justify the interference with their right to respect for their private
or family life in the UK."
LORD JUSTICE HENDERSON:
LORD JUSTICE McCOMBE: