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[View ICLR summary:  WLR(D) 377]
||Neutral Citation Number:  EWCA Civ 705
||Case Nos: C4/2015/2958/QBACF, C5/2015/3155/AITRF,
C5/2015/1668/AITRF AND C5/2015/2305/AITRF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
THE HON MR JUSTICE NICOL & ORS
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LADY JUSTICE KING
SIR STEPHEN RICHARDS
|| (1) THE QUEEN ON THE APPLICATION OF MA (PAKISTAN) & ORS
||- v -
|| UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) & ANOR
||- and -
||- v -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
||- and -
(3) NS (SRI LANKA) & ORS
||- v -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
||- and -
(4) (AR ) SRI LANKA & ORS
||- v -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
||- and -
(5) CW (SRI LANKA) & ORS
||- v -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
||- and -
(6) AZ (PAKISTAN) & ORS
||- v -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
Paul Skinner (instructed by ATM Law Solicitors) for the First Appellant
Manjit Gill QC and Ripon Akther (instructed by Malik & Malik) for the Second Appellant
Stephen Knafler QC and Charlotte Bayati (instructed by Polpitiya & Co) for the Third, Fourth and Fifth Appellants
Frances Shaw (instructed by Adam Bernard Solicitors) for the Sixth Appellant
The First Respondent did not appear and was not represented
Lisa Giovannetti QC and Andrew Byass (instructed by Government Legal Department) for the Secretary of State for the Home Department
Hearing dates : 4, 5 May 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Elias :
- These six cases were listed to be heard together. Three of the Sri Lankan cases, NS, AR and CW, were joined below. In all save Pereira anonymity directions were made although I will hereafter refer to Pereira as "AP". They all raise a common issue, albeit arising in two different legal contexts. The question is how the test of reasonableness should be applied when determining whether or not it is reasonable to remove a child from the UK once he or she has been resident here for seven years.
- The contexts in which the issues arise are rule 276ADE(1)(iv) of the Immigration Rules and section 117B(6) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). In the former case the application for leave is brought under the rule by the child; in the latter, it is a claim brought outside the Immigration Rules by a parent under article 8 ECHR. In each case persons exercising a parental role (and other siblings) may be entitled to stay with the child in the UK in circumstances where they would not qualify for leave in their own right, independently of their status as parents. In effect they may be able to piggy back on the rights of the child. In each case the child in question must have been living in the UK for more than seven years in order for the provisions to bite.
- The cases of MA and AP involve applications under rule 276ADE; the remaining cases involve only article 8 applications engaging section 117B(6). (A third, similarly drafted rule which involves the reasonableness test is found in Paragraph EX.1 of Appendix FM to the Immigration Rules which relates to certain claims for leave to remain brought by, inter alia, single parent carers. The provisions are complex. EX1 was in fact unsuccessfully relied upon in some of these cases but it is not in issue in any of the appeals.)
- Some of the appeals also involve other issues. MA raises the question whether the courts are constrained in the way they must approach the public interest balancing exercise where the best interests of the child have to be considered in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009. In AP an issue is whether a court may need to adjourn a hearing if it has insufficient information properly to assess where the best interests of the child lie.
- Paragraph 276ADE(1) sets out certain requirements which, if satisfied, lead to the applicant being granted leave to remain. The provision is as follows:
The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK".
- Paragraph (i) identifies various grounds under which an applicant may be refused even if he or she otherwise meets the criteria specified in the rule. These include cases where the applicant is subject to a deportation order or his presence is not conducive to the public good; or he has failed without reasonable excuse to supply certain information; or he has provided false information in relation to the application or has failed to disclose material facts.
- The relevant provision relied upon in the cases of MA and AP is paragraph (iv). In each of those cases the applicant was a child satisfying the seven year rule and the only issue was whether it would not be reasonable to expect the applicant to leave the UK.
- Sections 117A and 117B are found in part 5A of the 2002 Act which is headed "Article 8 ECHR: Public Interest Considerations". They apply in all cases where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's rights under Article 8.
- Section 117A is as follows:
(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
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(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).
- The considerations referred to in section 117A(2)(a), which are said by that provision to be applicable in all cases where the public interest question is under consideration, are as follows:
(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.
- The definition of "qualifying child" is found in section 117D:
"qualifying child" means a person who is under the age of 18 and who-
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;
- Section 117B relates to those not liable to deportation. The main category of persons liable to deportation are foreign criminals. They are subject to an additional set of public interest considerations found in section 117C, supplementing those in section 117B. This provision does not directly arise in these appeals, but it is of some importance to the arguments in issue. The material parts of the section are as follows:
"117C Article 8: additional considerations in cases involving foreign criminals"
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies….
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
- Some preliminary observations can be made about rule 276ADE(iv) and section 117B(6). First, they are similarly framed: both require seven years' residence and in both a critical question is whether it would be unreasonable for the child to be expected to leave the UK. Second, the concept of seven years' residence may not be calculated in precisely the same way in the two provisions. rule 276ADE(1) states in terms that the period must be assessed as at the date of the application. However, the Secretary of State conceded that as a result of section 85(4) of the 2002 Act, the relevant date for the purpose of section 117B is the later date when the court is making its determination. We have acted on the assumption that this is correct. Third, only the child can apply under rule 276ADE (iv), whereas section 117B is concerned with article 8 applications under which both the child and the parents can apply. Fourth, rule 276ADE is concerned with applications made on the basis of private life, whereas claims under article 8 may rely on both private and family life. Fifth, it is in my judgment a legitimate assumption that the question whether it is reasonable to expect the child to leave should be approached in the same way in each context, and no party has sought to contend otherwise.
Analysing the structure of section 117B
- Before examining the details of these appeals, I will consider the structure of section 117B.
- Section 117A states in terms that section 117B applies to courts and tribunals. Curiously the Secretary of State is not in terms bound by these rules but it would be bizarre for her to depart from Parliament's view of the public interest as reflected in the legislation, and if she were to do so in a manner prejudicial to the individual, it would simply invite appeals.
- The paragraphs in section 117B achieve different objectives. The structure of subsections (4) and (5) differs from subsections (1) to (3). The latter identify factors bearing upon the public interest which a court or tribunal is under a duty to consider but it is for the decision maker to decide upon the weight to give to these factors in making the determination, subject only to compliance with public law principles. Subsections (4) and (5) implicitly accept that the matters identified therein should be taken into account, but there is a direction as to the weight – or more accurately, the relative lack of it - which should be given to these considerations. Parliament has here sought to identify both relevance and weight.
- Subsection (6) falls into a different category again. It does not simply identify factors which bear upon the public interest question. It resolves that question in the context of article 8 applications which satisfy the conditions in paragraphs (a) and (b). It does so by stipulating that once those conditions are satisfied, the public interest will not require the applicant's removal. Since the interference with the right to private or family life under article 8(1) can only be justified where there is a sufficiently strong countervailing public interest falling within article 8(2), if the public interest does not require removal, there is no other basis on which removal could be justified. It follows, in my judgment, that there can be no doubt that section 117B(6) must be read as a self-contained provision in the sense that Parliament has stipulated that where the conditions specified in the sub-section are satisfied, the public interest will not justify removal. It is not legitimate to have regard to public interest considerations unless that is permitted, either explicitly or implicitly, by the subsection itself.
- Ms Giovannetti QC, counsel for the Secretary of State, argued otherwise. She contended that there may be circumstances where even though the provisions of paragraphs (a) and (b) are satisfied and the applicant is not liable for deportation, the Secretary of State may nonetheless refuse leave to remain on wider public interest grounds. But as she had to accept, that analysis requires adding words to subsection (6) to the effect that where the conditions are satisfied, the public interest will not normally require removal, because on her approach, sometimes it will. I see no warrant for distorting the unambiguous language of the section in that way.
- In my judgment, therefore, the only questions which courts and tribunals need to ask when applying section 117B(6) are the following:
(1) Is the applicant liable to deportation? If so, section 117B is inapplicable and instead the relevant code will usually be found in section 117C.
(2) Does the applicant have a genuine and subsisting parental relationship with the child?
(3) Is the child a qualifying child as defined in section 117D?
(4) Is it unreasonable to expect the child to leave the United Kingdom?
- If the answer to the first question is no, and to the other three questions is yes, the conclusion must be that article 8 is infringed.
Applying the reasonableness test
- It does not, however, necessarily follow from the fact that section 117B(6) exhaustively identifies all the factors which a court can take into account that the wider pubic interest criteria, including those identified in section 117B(1) to (5) are of no relevance to applications which fall under that subsection. That depends upon the meaning and application of the term "reasonable" in the context of asking whether it would "not be reasonable to expect the child to leave" in paragraph (b). The Secretary of State submits that even if the subsection is self-contained, the concept of reasonableness brings back into play all potentially relevant public interest considerations, including the matters identified in section 117B. On this analysis, it is a matter of no real consequence whether section 117B(6) is self-contained or not. The same range of considerations falls to be considered when determining an application under section 117B(6) as in any other article 8 determination. Construing the section in this way, the only relevance of the seven year period is that once a child has been in the UK for that length of time, this is a factor which should be given particular weight when assessing whether it would be reasonable for the child to leave the UK or not.
The application of the reasonableness concept
- The critical issue in these cases, therefore, is how the court should approach the question of reasonableness. What factors is a court or tribunal entitled to take into account when applying the reasonableness test? As I have said, the answer to that question must be the same for paragraph 276ADE.
- It is now firmly established jurisprudence, at least since the seminal decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4;  2 AC 166 that the best interests of the child is a primary consideration which has to be taken into account in all cases where the child's interests are affected. Plainly, as all counsel accepted, it will be highly relevant when applying the reasonableness test. But thereafter there was a divergence of view between the parties as to what factors could permissibly be considered when applying this test
- At one extreme, Mr Gill QC, counsel for AP, submitted that the best interests of the child and the reasonableness or otherwise of expecting the child to leave the UK are but two sides of the same coin. Once it was established that it was in the best interests of the child to remain in the UK, it must necessarily follow that it would not be reasonable to require him or her to leave. Provided the other conditions in subsection 117B(6) are satisfied, the applicant would have to be granted leave. No other considerations come into play.
- Mr. Knafler QC, counsel for the applicants in the three joined Sri Lankan cases, did not go that far. He accepted that there could be circumstances where it was in the best interests of the child to remain in the UK and yet it might still be not unreasonable to expect the child to leave. However, he agreed with Mr Gill that when considering whether it is reasonable or not to remove the child, the court must focus only on the position of the child and that the conduct and immigration history of the parents, which would be relevant if the wider public interest considerations had to be weighed in the balance, were immaterial.
- Mr Knafler submitted that the structure of subsection (6) is such as to render the conduct of the parent relevant only in so far as the applicant must not be liable for deportation. Broadly that occurs where the applicant has committed serious criminal offences or where the Secretary of State certifies that his deportation is for the public good. Where the conduct of the parents involved criminal offending such as to render them liable to deportation, the additional considerations in section 117C, come into play. In those cases the applicant can be refused leave unless it is unduly harsh to expect the child to leave the UK (section 117C(5)). But if the conduct of the applicant parent has not rendered him liable to deportation, neither his conduct nor his immigration history is of any further relevance. Thereafter, paragraph (a) focuses on the relationship between the parents and the child: it must be genuine and subsisting, paragraph (b) concentrates on the effect of removal on the child alone.
- On this analysis, no assumptions should be made about where the applicant parent or parents will reside, save that once they have a genuine and subsisting bond with the child as paragraph (a) requires, it should be assumed that they will remain with the child wherever the proper application of paragraph (b) dictates that the child should go. If it is unreasonable to expect the child to leave the UK having regard solely to the position of the child, the applicant parent should be granted leave to remain in the UK with the child; if not, and it is reasonable to expect the child to leave, the application for leave to remain will fail and the applicant parent will be removed with the child.
- Ms Giovannetti QC submits that this analysis is misconceived and would lead to a much more generous approach to these applications than Parliament could have intended. The focus is not simply on the child but must embrace all aspects of the public interest. She submits that in substance the approach envisaged in section 117B(6) is not materially different to that which a court will adopt in any other article 8 exercise. The decision maker must ask whether, paying proper regard to the best interests of the child and all other relevant considerations bearing upon the public interest, including the conduct and immigration history of the applicant parent or parents, it is not reasonable to expect the child to leave. The fact that the child has been resident for seven years will be a factor which must be given significant weight in the balancing exercise, but it does not otherwise modify or distort the usual article 8 proportionality assessment. That test requires that where the parents have no right to be in the UK that is the basis on which the article 8 proportionality assessment must be made: see EV (Philippines) v Secretary of State for the Home Department  EWCA Civ 874 per Lewison LJ, paras. 49-58. In the course of his judgment in that case (which was not, however, a seven year case) Lewison LJ analysed how a court should approach the question of removal where one or both parents has no right to remain in the UK. After having regard to certain observations of Lady Hale in ZH (Tanzania) and Naidike v Attorney General of Trinidad and Tobago  UKPC 49;  1 AC 538, Lord Justice Lewison summarised his conclusion as follows (para.58):
"In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?"
- Ms Giovannetti submits that essentially the same approach should be adopted when applying the reasonableness test; in essence it is the usual proportionality test save that the fact that the child has resided in the UK for seven years will be a significant factor weighing in favour of the conclusion that it would not be reasonable to require the child to leave.
- She relies upon a number of arguments to bolster this submission. First, she says that it is consistent with the fact that section 117A(2)(a) provides that the factors in section 117B should apply in all cases. If section 117B is a self-contained section, it is only through the reasonableness condition that these factors can be weighted in the balance.
- Second, she submits that in what might be termed the standard article 8 case, where the best interests of the child are in issue, the court often expresses the outcome of the article 8 proportionality exercise by determining whether it would be reasonable to expect the applicant to leave. Paragraph 58 of the judgment of Lewison LJ in the EV (Philippines) case, set out above, illustrates this. There is every reason to suppose that Parliament was using the concept of reasonableness simply as a short-hand for the usual proportionality exercise. If the public interest in immigration control overrides the best interests of the child, even after giving appropriate weight to the fact that the child has lived in the UK for seven years, it will be reasonable to expect the child to leave the UK.
- Third, she referred us to the decision of the Court of Appeal in MM (Uganda) v Secretary of State for the Home Department  EWCA Civ 450 which raised the question how the court should approach the meaning of "unduly harsh" in the context of section 117C of the 2002 Act. (In fact at the hearing there was no report of the case, merely a brief summary.) That provides inter alia that a foreign criminal will be liable for deportation where he has been sentenced to prison for between one and four years save where he has a genuine and subsisting relationship with a child and the effect of deportation on the child would be "unduly harsh". The court was concerned with the application of the "unduly harsh" test in that context. In MAB (USA)  UKUT 435 (IAT) the Upper Tribunal had held that it did not involve a balancing exercise between the public interest in deportation on the one hand and the impact of removal on the child on the other; rather the focus was exclusively on the effect on the innocent child. In reaching that conclusion the UT was following the approach of the Chamber President, McCloskey J, in MK (Sierra Leone)  UKUT 223 (IAC). Lord Justice Laws, with whose judgment Vos and Hamblen LJJ agreed, rejected that approach and found that the wider public interest was engaged. Laws LJ held that the court should have regard to all the circumstances, and these included the applicant's immigration and criminal history. His reasoning was as follows (paras. 22-24):
"22. I turn to the interpretation of the phrase "unduly harsh". Plainly it means the same in section 117C(5) as in Rule 399. "Unduly harsh" is an ordinary English expression. As so often, its meaning is coloured by its context. Authority is hardly needed for such a proposition but is anyway provided, for example by VIA Rail Canada  193 DLR (4th) 357 at paragraphs 35 to 37.
23. The context in these cases invites emphasis on two factors, (1) the public interest in the removal of foreign criminals and (2) the need for a proportionate assessment of any interference with Article 8 rights. In my judgment, with respect, the approach of the Upper Tribunal in MAB ignores this combination of factors. The first of them, the public interest in the removal of foreign criminals, is expressly vouched by Parliament in section 117C(1). Section 117C(2) then provides (I repeat the provision for convenience):
The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
24. This steers the tribunals and the court towards a proportionate assessment of the criminal's deportation in any given case. Accordingly, the more pressing the public interest in his removal, the harder it will be to show that the effect on his child or partner will be unduly harsh. Any other approach in my judgment dislocates the "unduly harsh" provisions from their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case the term "unduly" is mistaken for "excessive" which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case. In the present context relevant circumstances certainly include the criminal's immigration and criminal history."
- Ms Giovannetti submits that this is powerful support for her case. The framework of section 117C is virtually identical to that of section 117B, and section 117B(6) is drafted in a similar manner to section 117C(5). Both identify circumstances where the public interest does not require removal. She says that it would be illogical to allow the wider public interest considerations to be part of the proportionality exercise in the latter case but not the former. The context here, as with section 117C, is that an article 8 claim requires a proportionality assessment, and the narrow approach to section 117B(6) precludes this.
- Finally, she also submitted that if the matter had to be determined without having regard to these wider public interest considerations, it would undermine the objectives which these rules were intended to achieve. There was for some time a policy in place, DP5/96, under which the parents of a child who had been in the UK for seven years would be entitled to stay unless there were exceptional circumstances requiring removal such as serious criminal offending or evasions of immigration control. That policy was scrapped with effect from 9 December 2008. One of the reasons given by the Immigration Minister was that:
"Withdrawing the policy will also prevent those overstaying or unlawfully present in the UK having the benefit of a concession which does not apply to those persons who comply with the Immigration Rules and remain in the UK lawfully."
- She submitted that if the appellants are right, section 117B(6) would have to be construed in essentially the same way as that rejected policy. It would allow those who had unlawfully remained in the UK to take advantage of the seven year rule. In this context she emphasised that the subsection does not only operate with respect to children who have resided in the UK for seven years. The concept of a qualifying child also includes a child who is a British citizen. That will be a very important factor for the court to take into account when having regard to the child's best interests: see ZH per Lady Hale paras.30-31, Lord Hope para.40 and Lord Kerr, para.47. As Lord Kerr pointed out, it bears both upon a best interests analysis and quite independently of that, will have a bearing on where the child should live. Ms Giovannetti suggests that it will be relatively rare for it to be reasonable to expect a child who is a British citizen to leave the UK, and so the consequence of the appellants' approach would be to allow many applicant parents who have unjustifiably and unlawfully stayed in the UK to remain here by clinging to the coat tails of the child.
- Looking at section 117B(6) free from authority, I would favour the argument of the appellants. The focus on paragraph (b) is solely on the child and I see no justification for reading the concept of reasonableness so as to include a consideration of the conduct and immigration history of the parents as part of an overall analysis of the public interest. I do not deny that this may result in some cases in undeserving applicants being allowed to remain, but that is not in my view a reason for distorting the language of the section. Moreover, in an appropriate case the Secretary of State could render someone liable to deportation, and thereby render him ineligible to rely on this provision, by certifying that his or her presence would not be conducive to the public good.
- Ms Giovannetti's analysis has a number of difficulties. First, as she accepts, it means that the only effect of subsection 117B(6) would be to give some additional weight to the fact that the child has been resident in the UK for seven years. (Similarly it would require the court to give additional weight to the fact that a child is a British citizen, although that would need to be done quite irrespective of the section, as ZH makes clear.) Save for that, the proportionality test is applied as in any other article 8 case. If that is right, section 117B(6) is in my view drafted in an extremely convoluted way to achieve so limited an aim. The objective could have been achieved much more clearly and succinctly.
- Second, Ms Giovannetti's construction makes subsection 117B(6) tautologous. In effect it comes down to saying that "the public interest does not require removal … in circumstances where the application of the proportionality test does not justify removal." That would seem to be self-evident.
- Third, in relation to rule 276ADE(1) it is plain that paragraphs (v) and (vi) of that rule do not warrant any consideration of the wider public interests than have been specifically identified in paragraph (i). It is not obvious why paragraph (iv) should do so.
- It may be said that the wider approach can be justified along the following lines. It will generally be in the child's best interests to live with his or her parents and siblings as part of a family. That is usually a given especially for younger children, absent domestic abuse or some other reasons for believing the parents to be unsuitable. The approach of the Secretary of State means that the stronger the public interest in removing the parents, the more reasonable it will be to expect the child to leave. But it seems to me that this involves focusing on the position of the family as a whole. In cases where the seven year rule has not been satisfied, that is plainly what has to be done. As McCloskey J observed in PD and others v Secretary of State for the Home Department  UKUT 108 (IAC) it would be absurd to consider the child's position entirely independently of, and in isolation from, the position of the parents given that the child's best interests will usually require that he or she lives as part of the family unit. But the focus on the family does not sit happily with the language of section 117B(6). Had Parliament intended to require considerations bearing upon the conduct and immigration history of the applicant parent to be taken into consideration, I would have expected it to say so expressly, not for the matter to have to be inferred from a test which in terms focuses on an assessment of what is reasonable for the child. This does not in my view mean that the wider public interests have been ignored; it is simply that Parliament has determined that where the seven year rule is satisfied and the other conditions in the section have been met, those potentially conflicting public interests will not suffice to justify refusal of leave if, focusing on the position of the child, it is not reasonable to expect the child to leave the UK. When section 117A(2)(a) refers to the need for courts and tribunals to take into account the considerations identified in section 117B in all cases, that would not in my view have been intended to include specific circumstances where Parliament must be taken to have had regard to those matters.
- The appellants advanced an additional reason why the Secretary of State's approach to the test would be inconsistent with principle. They submit that if the misconduct of the parents is taken into account when considering the position of the child, the consequence is that the child is being blamed for the moral failing of the parents, something which Lord Hodge emphasised in Zoumbas v Secretary of State for the Home Department  1 WLR 3690 was not permissible: see principle seven of the seven principles summarized in para.10 (discussed further in para.52 below) reflecting what Lady Hale had said in EM (Lebanon) v Secretary of State for the Home Office  AC 198 para.49.
- I do not believe that this principle does undermine the Secretary of State's argument. As Lord Justice Laws pointed out in In the matter of LC, CB (a child) and JB (a child)  EWCA Civ 1693 para.15, it is not blaming the child to say that the conduct of the parents should weigh in the scales when the general public interest in effective immigration control is under consideration. The principle that the sins of the fathers should not be visited upon the children is not intended to lessen the importance of immigration control or to restrict what the court can consider when having regard to that matter. So if the wider construction relied upon by the Secretary of State is otherwise justified, this principle does not in my view undermine it.
- But for the decision of the court of Appeal in MM (Uganda), I would have been inclined to the view that section 117C(5) also supported the appellants' analysis. The language of "unduly harsh" used in that subsection is not the test applied in article 8 cases, and so the argument that the term is used as a shorthand for the usual proportionality exercise cannot run. I would have focused on the position of the child alone, as the Upper Tribunal did in MAB.
- I do not find this a surprising conclusion. It seems to me that there are powerful reasons why, having regard in particular to the need to treat the best interests of the child as a primary consideration, it may be thought that once they have been in the UK for seven years, or are otherwise citizens of the UK, they should be allowed to stay and have their position legitimised if it would not be reasonable to expect them to leave, even though the effect is that their possibly undeserving families can remain with them. I do not accept that this amounts to a reintroduction of the old DP5/96 policy. As the Court of Appeal observed in NF (Ghana) v Secretary of State for the Home Department  EWCA Civ 906, the starting point under that policy was that a child with seven years' residence could be refused leave to remain only in exceptional circumstances. The current provision falls short of such a presumption, and of course the position with respect to the children of foreign criminals is even tougher.
- However, the approach I favour is inconsistent with the very recent decision of the Court of Appeal in MM (Uganda) where the court came down firmly in favour of the approach urged upon us by Ms Giovannetti, and I do not think that we ought to depart from it. In my judgment, if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the "unduly harsh" concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6). I recognise that the provisions in section 117C are directed towards the particular considerations which have to be borne in mind in the case of foreign criminals, and it is true that the court placed some weight on section 117C(2) which states that the more serious the offence, the greater is the interest in deportation of the prisoner. But the critical point is that section 117C(5) is in substance a free-standing provision in the same way as section 117B(6), and even so the court in MM (Uganda) held that wider public interest considerations must be taken into account when applying the "unduly harsh" criterion. It seems to me that it must be equally so with respect to the reasonableness criterion in section 117B(6). It would not be appropriate to distinguish that decision simply because I have reservations whether it is correct. Accordingly, in line with the approach in that case, I will analyse the appeals on the basis that the Secretary of State's submission on this point is correct and that the only significance of section 117B(6) is that where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted.
Applying the reasonableness test
- Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled "Family Life (as a partner or parent) and Private Life: 10 Year Routes" in which it is expressly stated that once the seven years' residence requirement is satisfied, there need to be "strong reasons" for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.
- Even if we were applying the narrow reasonableness test where the focus is on the child alone, it would not in my view follow that leave must be granted whenever the child's best interests are in favour of remaining. I reject Mr Gill's submission that the best interests assessment automatically resolves the reasonableness question. If Parliament had wanted the child's best interests to dictate the outcome of the leave application, it would have said so. The concept of "best interests" is after all a well established one. Even where the child's best interests are to stay, it may still be not unreasonable to require the child to leave. That will depend upon a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed he should return. What could not be considered, however, would be the conduct and immigration history of the parents.
- In EV (Phillipines) Lord Justice Christopher Clarke explained how a tribunal should apply the proportionality test where wider public interest considerations are in play, in circumstances where the best interests of the child dictate that he should remain in the UK (paras. 34-37):
"34. In determining whether or not, in a case such as the present, the need for immigration control outweighs the best interests of the children, it is necessary to determine the relative strength of the factors which make it in their best interests to remain here; and also to take account of any factors that point the other way.
35. A decision as to what is in the best interests of children will depend on a number of factors such as (a) their age; (b) the length of time that they have been here; (c) how long they have been in education; (c) what stage their education has reached; (d) to what extent they have become distanced from the country to which it is proposed that they return; (e) how renewable their connection with it may be; (f) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and (g) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens.
36. In a sense the tribunal is concerned with how emphatic an answer falls to be given to the question: is it in the best interests of the child to remain? The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child's best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child's best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.
37. In the balance on the other side there falls to be taken into account the strong weight to be given to the need to maintain immigration control in pursuit of the economic well-being of the country and the fact that, ex hypothesi, the applicants have no entitlement to remain. The immigration history of the parents may also be relevant e.g. if they are overstayers, or have acted deceitfully."
- Although this was not in fact a seven year case, on the wider construction of section 117B(6), the same principles would apply in such a case. However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child's best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary.
The best interests of the child
- Section 55 of the Borders, Citizenship and Immigration Act 2009, which is headed "Duty regarding the welfare of children", establishes an overriding obligation to have regard to the welfare of children in relation to the exercise by the Secretary of State and others of various statutory functions, including those in relation to immigration, asylum and nationality.
- As Baroness Hale pointed out in ZH (Tanzania), this provision reflects and gives effect to Article 3 of the UN Convention on the Rights of the Child 1989 (UNCRC) to which the UK is a party. It is to be observed that the duty applies to all children present in the UK whether or not they are citizens and whether or not they are lawfully present. Guidance has been issued, entitled "Every Child Matters: Change for Children" and as subsection 55(3) makes plain, there is a duty for the decision maker to take that guidance into account. The guidance provides, for example, that whenever practicable, children should be consulted and their wishes and feelings taken into account. This reflects article 12 of the UNCRC.
- The decision in ZH and subsequent decisions of the Supreme Court raising best interests considerations were considered by the Supreme Court in Zoumbas v Secretary of State for the Home Department  UKSC 74;  1 WLR 3690. Lord Hodge, with whose judgment Lady Hale and Lords Kerr, Reed and Toulson agreed, approved the following seven principles which need to be borne in mind when considering the interests of the child in the context of an Article 8 evaluation (para.10):
"In their written case counsel for Mr Zoumbas set out legal principles which were relevant in this case and which they derived from three decisions of this court, namely ZH (Tanzania) (above), H v Lord Advocate 2012 SC (UKSC) 308 and H(H) v Deputy Prosecutor of the Italian Republic  1 AC 338. Those principles are not in doubt and Ms Drummond on behalf of the Secretary of State did not challenge them. We paraphrase them as follows:
(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;
(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration;
(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;
(5) It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and
(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent."
- Paragraph (7) justifies the observation of Christopher Clarke LJ in EV (Philippines) para. 33 that "the best interests of the child are to be determined by reference to the child alone without reference to the immigration history or status of either parent." Accordingly, when making that assessment, it would be inappropriate to treat the child as having a precarious status merely because that was true of the parents.
Three best interest issues in these appeals
- There are three issues which arise in these cases relating to the best interests of the children. First, as I have said, Mr Gill submits that once the best interests have been determined, that necessarily resolves the reasonableness question. For reasons I have given, I reject that submission. There is nothing intrinsically illogical in the notion that whilst the child's best interests are for him or her to stay, it is not unreasonable to expect him or her to go. That is so even if the reasonableness test should be applied so as to exclude public interest considerations bearing upon the parents.
- Second, an issue which has arisen in the case of MA is whether there is any particular order in which a court has to approach the proportionality exercise where the best interests of the child are in issue. Mr Skinner, counsel for MA, relied upon certain observations in ZH by Lady Hale and Lord Kerr respectively to the effect that the court has first to carry out a careful assessment of the best interests of the child and then decide whether any other public interests in play have the effect of displacing it.
- In my view subsequent observations of judges of the Supreme Court in H v Lord Advocate 2012 SC (UKSC) 308 and H(H) v Deputy Prosecutor of the Italian Republic  1 AC 338 - two extradition cases which were heard together in the Supreme Court albeit that separate decisions were promulgated - have made it clear that there is no obligation for a court to approach the matter in such a formal way. I will not set out all the relevant passages in those judgments. They are to be found in HH, para. 125 per Lord Judge and para.153 per Lord Wilson (although it is true that Lord Kerr adhered to the view he had expressed in ZH at paras 144-145); and in H at para.51 per Lord Hope, with whose judgment the other judges, who included Lady Hale and Lord Kerr, agreed. In the light of this jurisprudence I do not think that it can now be said that courts and tribunals are mandated to look at matters in any particular way such that it is an error of law for them to fail to do so. No doubt it will usually be sensible to start with child's best interests but ultimately it does not matter how the balancing exercise is conducted providing that the child's best interests are treated as a primary consideration.
- I do not accept Mr Skinner's attempt to distinguish these cases by saying that they are concerned only with extradition; their Lordships were plainly looking at the matter more generally. Nor do I accept that Lord Hodge was seeking to resurrect this approach in his formulation of the fourth and fifth principles which he set out in para. 10 of Zoumbas (para.52 above.) In my judgment all Lord Hodge was saying is that it is vital for the court to have made a full and careful assessment of the best interests of the child before any balancing exercise can be undertaken. If that is not done there is a danger that those interests will be overridden simply because their full significance has not been appreciated. The court must not treat the other considerations as so powerful as to assume that they must inevitably outweigh the child's best interests whatever they might be, with the result that no proper assessment takes place.
- A third issue which arose in AP is this: where it falls on the court to determine the child's best interests, what should it do if it does not consider that it has been provided with the necessary information properly to make that assessment?
- This issue, and a number of related matters, were explored at some depth in a thoughtful judgment of Mr Justice McCloskey in MK (Sierra Leone)) v Secretary of State for the Home Department  UKUT 223. He concluded, and I would accept, as indeed did this court in SS (Nigeria) v Secretary of State for the Home Department  EWCA Civ 330, that whilst a court can normally expect an applicant to provide the information required to enable the court to make the best interests assessment since the onus is on the applicant to prove any breach of section 55, there will be cases where the court will have to make enquiries on its own initiative. The Court of Appeal in SS(Nigeria) thought that this was likely to be very rare (and indeed Mann J doubted whether it would ever arise) although I think it fair to say that Mr Justice McCloskey, drawing on his broad experience in this field, believes that the situation will arise more frequently. No doubt the problem is more likely to occur with litigants in person who will not always appreciate what information is required to make good their case. In some circumstances it may become apparent that justice cannot be done without further material being obtained, either by a party or by the court using its case management powers. I would accept that it may, albeit very exceptionally, be an error of law for the court to fail to make further enquiries in such cases, and this may involve the need to adjourn the hearing, although in my view the failure to do so would only be an error of law where the refusal or failure to do so was Wednesbury unreasonable or resulted in unfairness. The issue raised, somewhat sotto voce, in AP was that the Tribunal did not have the information to make a best interests assessment and had failed to adjourn when it ought to have done. I consider the merits of that submission when addressing the submissions in that case.
Applying the principles to the cases
- Having considered the principal issues arising in these cases from a general perspective, I now apply them to the particular facts of each case.
- MA entered the UK on 26 September 2004 with a student visa valid to 13 December 2007. This leave was then extended further to 28 February 2009. An application made on that date for a Post-Study work visa was refused. MA's wife had entry clearance to join him in 2005 and her period of leave also expired with his on 28 February 2009.
- The couple have two sons born in the UK on 30 April 2006 and 8 July 2009 respectively. The older son had leave to remain until 28 February 2009, the younger son, born after leave had expired, never held valid leave to remain.
- On 3 April 2013 the family applied to remain in the UK on the basis of their family and private life. This was refused on 23 May 2013 but following a legal challenge to that decision, a consent order was made in judicial review proceedings on 19 November 2013. As part of that order the Secretary of State undertook to reconsider the previous decision.
- In a letter dated 18 March 2014 she again refused the family's applications for leave to remain on any basis. She gave consideration to various applications under Appendix FM, Paragraph 276ADE and under article 8 outside the Immigration Rules but rejected them all.
- The Appellants appealed this decision on 4 April 2014. In his decision promulgated on 8 November 2014, FTT Judge Eldridge noted (para.21) that the nub of these appeals was whether or not it would be reasonable to expect the older child, who has lived continuously in this country for at least seven years, to leave the United Kingdom. In my view he recognized that this was the only possible route whereby the family could successfully obtain leave to remain.
- The judge considered the strength of the children's links to the UK and the difficulty they would find if removed to Pakistan. He found that the younger boy had never visited Pakistan and the elder one had only done so as a toddler. However, they could both speak Urdu and Punjabi as that is what is spoken at home and they regularly attended the Mosque. They also received education in Islamic studies.
- With respect to the older boy, and his claim under paragraph 276ADE the judge said this (paras 26-28):
"The Rules also recognise that the age of seven years or more is important if the Appellant has lived continuously in this country and is still a child. That applies to him in respect of his private life and Paragraph 276ADE. That provision requires, however, that the requirements of Appendix FM in respect of suitability for leave to remain are met. They are. The Rule goes on to state, however, that leave to remain will only be granted where "it would not be reasonable to expect the applicant to leave the UK".
The Fourth Appellant is of an age at 8 when he can adapt to life elsewhere. His social life is still bound to be dominated by his life with his parents and younger brother. He is about half way through his primary education. There is nothing to suggest his parents provide other than a loving and safe environment for both children. There are no safe-guarding issues that have been brought forward. I find there are none. I have found this young child is not at risk in terms of his health if he relocates to Pakistan. Nothing suggests his younger brother will be either.
Return will be with their parents to a country where they have a number of other close adult relatives. The father told me they were living in this country on his savings and with the help of friends. I see no reason why these savings and the financial help of friends cannot continue to be of use in Pakistan as they are here. He is clearly being brought up in the Islamic faith, as is his younger brother. I can see no reason why it is unreasonable to expect either of them to accompany their parents to Pakistan."
- Permission to appeal the decision of Judge Eldridge was first refused by the FTT itself on 9 January 2015 and then refused on 5 May 2015 by Upper Tribunal Judge Lindsley. The Appellants sought permission to apply for judicial review of the refusal decision by the UT.
- In a decision dated 31 July 2015, Nicol J refused the application for permission to apply for judicial review. He held that there had been no arguable error of law in Judge Eldridge's decision. The question on this appeal, therefore, is whether the judge was wrong to say that there were no arguable errors of law.
- It was not suggested in this appeal that the FTT erred in adopting the wider construction of the reasonableness test. The Appellant was granted permission to appeal Nicol J's decision on two grounds. First, it is asserted that the FTT had failed to approach its task of assessing the child's best interests in the legally required way. It is submitted that this requires a two staged approach, first making a proper assessment of the child's best interests and thereafter considering whether they are outweighed by other public interest considerations. That structured approach was not adopted here.
- Second, it is alleged that the FTT failed to have any regard to, and did not purport to apply, the guidance given by the UT in Azimi-Moayed (Decisions Affecting Children: Onward Appeal)  UKUT 197 (IAC) for determining the reasonableness of removal in cases involving children present for more than 7 years in the UK. That was a case determined after the policy in DP5/96 had been repealed and before any other rules had been put in place. Blake J held that after a period of lengthy residence, which he took from past and previous policies to be seven years, it would be inappropriate to disrupt the child's life in the UK "in the absence of compelling reason to the contrary". No such compelling reasons were identified here.
- I have already stated why I reject the contention that a court is obliged as matter of law to adopt a two staged approach (see paras.56-57 above) even though it will usually be a sensible way of proceeding.
- I would not either grant leave on the second ground. The appropriate test can no longer be compelling reasons; that is not the language of section 117B(6) or paragraph 276ADE and it sets the bar too high. It may be reasonable to require the child to leave where there are good cogent reasons, even if they are not compelling.
- It was also suggested that in any event the judge did not give sufficient weight to the fact that the appellant had resided here for over seven years and that his best interests were to remain here with his family. I do not accept that submission. The judge made specific reference to the seven year rule and its significance. It may be that other judges would have struck the balance differently, but the question is whether this judge reached a conclusion which was not open to him. Given that he was required to have regard to the wider pubic interest in effective immigration control, I do not think that he did.
- Accordingly, I would dismiss this appeal.
NS, AR and CW: the three joined Sri Lankan appeals
- All these appellants are citizens of Sri Lanka. NS was born on 4 March 1972; AR was born on 25 June 1973; and CW was born on 15 June 1979.
- In October 2008 each of the three appellants applied for leave to remain in the UK as a Tier 1 (Post-Study Work) Migrant. In support of this application each submitted a Post Graduate qualification in Business Management and an academic reference from The Cambridge College of Learning.
- In letters dated 12 February 2009 for NS, 22 January 2009 for AR and 16 January 2009 for CW, the Secretary of State informed the Appellants that she was satisfied that all the documents submitted from the Cambridge College of Learning were false because the College has never offered a legitimate Post Graduate Qualification in Business Management. The applicants were all involved in a scam. The applications were refused under paragraph 322(1A) of the Immigration Rules on the grounds that they had each submitted false documents.
- On the same dates the appellants' dependants were also refused leave to remain as dependants of a Tier 1 Migrant on the basis that the principal application for leave to remain in the UK had been refused. CW and his wife have a son who was born in the UK on 28 May 2008; AR and his wife have a daughter who was born on 2 September 2002; and NS and his wife have two daughters born on 11 October 2002 and 26 November 2008 respectively. So both AR and NS had a child who had been in the UK for seven years.
- It is not necessary to detail the various challenges which were lodged against that decision. Suffice it to say that they all ended up being heard together before UT Judge Perkins. CW's case was remitted to the Upper Tribunal by the Court of Appeal on 27 January 2011 to conduct a de novo hearing. In AR's case a decision of the First Tier Tribunal was set aside by the Upper Tribunal after a hearing on 20 July 2011 and was ordered to be remade. The case of NS and his dependants was remitted by the Court of Appeal to the Upper Tribunal on 9 January 2012.
- UT Judge Perkins noted that the Cambridge College of Learning came, in his words, to an "undistinguished end" (para. 13). He referred to the decision in NA and others (Cambridge College of Learning) Pakistan  UKAIT 00031 where the court found that the College had not provided the courses alleged to have been undertaken by these appellants.
- Notwithstanding this ruling, The appellants insisted that the College did provide a postgraduate course in business management and that they had studied that course. After considering all the evidence, UTJ Perkins concluded that none of the evidence from the appellants was persuasive, that the course was never offered, and that they had deliberately gathered together documents to pretend that it was. He dismissed the appeals under the rules on the grounds that applications will be refused if supported by false documents in accordance with para. 322 of the Immigration Rules (para.176) He concluded that these were compelling reasons to remove the first three appellants: para.180.
- It was argued that the appellants who had been in the UK for more than ten years satisfied the requirements of paragraph 276A(1). The judge did not make a decision under this rule as there had been no application to do so but he indicated that there were powerful reasons why they should be refused on the grounds that it was undesirable that they should be given indefinite leave to remain. While the wives did not necessarily know their husbands were cheating the system, their sole basis for being in the UK was to be with their husbands. They did not have an established right to remain under the rules and UTJ Perkins found their removal a proportionate interference with their private and family lives.
- The judge did, however, recognise that the position of the children was more problematic. Two of the four children were at the time of judgment "qualifying children" within the meaning of section 117D of the 2002 Act because they satisfied the seven year rule. The judge was satisfied that all the adult parents had a genuine and subsisting parental relationship with their children. He adopted the wide construction of section 117B(6) which entitled him to have regard to the wider pubic interest. He said this (para 185):
"However, I do not read section 117B(6) as meaning that removal is not in the public interest. Such an interpretation would nullify much of the section 117. Rather the public interest does not insist on removal where it would not be reasonable to expect the child to leave the United Kingdom."
- He went on to hold that he considered the children's status precarious at the latest when their fathers' applications for further leave were refused in 2009 so that much of the private life on which they relied attracted "little weight".
- The judge recognised that the best interests of the child should be a primary consideration: para.189. Looking at it solely from their point of view it is clear that he appreciated that it would be strongly in their best interests to remain in the United Kingdom with their parents where they were happy and settled. The children would be adversely affected by needing to learn a new language, and they would be subject to a different culture and a different level of education. Notwithstanding this, the judge concluded that in all the circumstances the three adult Appellants had behaved so badly that it would be "outrageous" for them to be allowed to remain in the UK. They needed to go and their dependants must go with them: para.199. He dismissed all of the appeals.
- The appellants submit that the UT's consideration of article 8 contained material errors of law. First, the UT's consideration of s. 117B(6) was unlawful. Once the judge was satisfied that the parents were not liable to deportation and had a genuine relationship with their children, the only question was whether it would not be reasonable for the child to leave the UK. The judge answered that question by focusing on the conduct of the parents, which was an illegitimate approach. For reasons I have given above at some length, the judge was adopting the proper approach to the interpretation of the section when he had regard to the conduct of the parents. If that is the right test then given the dishonesty of these appellants, the decision to refuse leave to the children was manifestly proportionate even though it was in their best interests to remain in the UK. This was a very careful judgment in which all relevant factors were considered, and in my view the judge was well entitled to strike the proportionality balance as he did.
- The second ground was this: having established that it would be in the children's best interest to stay in the UK, the judge's findings are entirely contrary to the guidance in the Supreme Court case of Zoumbas at para.10.7 that a "child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent." I would accept that the judge did contradict that principle when he treated the children's status as precarious, but reading the judgment as a whole it is plain that this was not a significant element in his reasoning. He focused on the very powerful public interest in removing the fathers, and their precarious status certainly was material to the proportionality analysis. For reasons I have explained above (paras.41-42) the conduct of the parents is relevant to their own situation which bears upon the wider public interest and does not amount to blaming the children even if they may be prejudiced as a result.
- Accordingly, I would dismiss these appeals.
- AZ is a citizen of Pakistan and was born on 28 March 1977. She entered the UK on 6 February 2007 as a student. Her husband and eldest child, born on 31 August 2006, entered at the same time. She made an application for leave to remain as a student on 16 February 2009. This application was rejected on 2 March 2009. The application was resubmitted on 6 March 2009 and leave to remain was granted as a student valid until 28 February 2010. Her second son was born in the UK on 27 March 2009.
- On 27 February 2010 a further application was made for leave to remain as a student which was refused. An appeal was dismissed and the appellant's appeal rights were exhausted on 13 September 2011. She made a further application for leave to remain outside the Immigration Rules on 14 October 2011. This was refused on 19 October 2012 with no right of appeal.
- A reconsideration request was sent to the Home Office on 30 October 2012. In a letter dated 13 January 2014 the refusal was maintained. It was considered that she did not meet the eligibility requirements of either Appendix FM or paragraph 276ADE, nor was there basis for upholding an article 8 case outside the rules.
- This decision was appealed to the First Tier Tribunal which dismissed the appeal. Permission to appeal was granted to the UT on the sole ground that section 117B(6) of the 2002 Act was arguably not properly applied.
The judge's decision
- Upper Tribunal Judge Perkins in his determination promulgated on 11 May 2015 agreed that the need for reasonableness specified in section 117(B)(6) had not been considered by the FTT and he set aside the decision and remade it. He held that there was nothing of substance in the cases of the parents and the youngest child. The parents had remained illegally in the UK: and the younger child was still very small and his private and family life was inextricably tied to his parents. There was no reason why they should not all be able to return to Pakistan. The case turned on the position of the elder son with autism and the impact that his removal would have on the others or their removal would have on him.
- The judge considered extensive evidence relating to the child's autism, which had resulted in him being identified as a child with special educational needs. He has significant problems with language, social interaction and communication and displays stereotyped behaviour and mannerisms. Very active steps have been taken to deal with his problems through regular therapy and specialist teaching. The judge accepted that there would be very little prospect that the child would receive support at this level in Pakistan since the evidence was that there is simply not the degree of expertise available. The judge considered the best interests of this child and concluded that they would be to remain in the UK. He treated this as the "strongest element" in favour of the appeal.
- The judge recognized that the question was whether the Appellant had shown that "it would not be reasonable to expect the child to leave the United Kingdom" (para.38). He observed that the word "reasonable" is not explained anywhere in the legislation and he knew of no authority that helped to elucidate it.
- He came to the following conclusion (para.42):
"Mr Singer suggested that I contrast his position with that of the fourth appellant who might also want to remain in the United Kingdom but about who much less can be said because he is not an autistic child. Certainly the fact that the third appellant is getting and needs this extra treatment makes a difference but I do not accept it is a difference that makes it unreasonable to remove him. It is not suggested that a short stay would address the difficulties. This is not, for example, like a young person who might be about to complete a crucial stage in his education or even about the complete a step in medical treatment. It is about his being able to remain in the United Kingdom presumably until the end of his education and no doubt after that. It is to treat him as if he were a citizen of the United Kingdom solely because he has been here for some years and is a child with special needs. I cannot see where the reasonableness lies here. What is reasonable or not reasonable may well be something incapable of accurate definition that something will be much easier to recognise than to attempt to define."
- He concluded that it was reasonable to expect the child to leave the United Kingdom, notwithstanding that it was sad for the child and frustrating for the parents. He observed that "people who enter the United Kingdom on a temporary basis should expect to leave at the end of it and the fact that one of them has a particular social need does not change that".
- The appellant appealed this decision on the ground that the UT had failed properly to apply section 117B(6) of the 2002 Act. It is not disputed that the oldest child satisfied the seven year condition.
- There can surely be little doubt that if the reasonableness test required a focus on the position of the child alone, ignoring wider considerations of immigration control, the argument for him being granted leave would be overwhelming. It would not be reasonable to require him to leave the UK given that he has spent virtually all his life here, and that his autism can only effectively be treated in this country.
- But for reasons I have given, that is not the test. The court can have regard to the wider public interest, including the immigration history of the applicant and his parents. The question, therefore, is whether the judge was entitled to conclude, having regard to these considerations and all other aspects of the public interest, that it would not be unreasonable to require the child to return to Pakistan.
- With all due respect to the careful analysis of the judge, in my judgment this was not a conclusion open to him given the overwhelming and permanent harm which would be caused to this child's way of life if he were to return to Pakistan. I recognize that the child is relatively young and has not developed significant social and cultural ties in the UK, and but for this autism, there would be a strong case for saying that it would not be unreasonable to expect him to leave and live with his parents and younger brother in Pakistan. But the consequences for him would be little short of catastrophic. The judge observed that allowing him to remain would be treating him as a citizen of the UK. It is perhaps pertinent to note that qualifying children are UK citizens or those with seven years' residence. It is not so surprising, therefore, that they might be treated in a similar way.
- In my judgment, the observation of the judge to the effect that people who come on a temporary basis can be expected to leave cannot be true of the child. The purpose underlying the seven year rule is that this kind of reasoning ought not to be adopted in their case. They are not to be blamed for the fact that their parents overstayed illegally, and the starting point is that their status should be legitimized unless there is good reason not to do so. I accept that the position might have been otherwise without the seven years' residence, but that is a factor which must weigh heavily in this case. The fact that the parents are overstayers and have no right to remain in their own right can thereafter be weighed in the proportionality balance against allowing the child to remain, but that is after a recognition that the child's seven years of residence is a significant factor pointing the other way.
- I would therefore allow this appeal and since, in my view, the only conclusion open to the judge on the facts was that it would not be reasonable to require the child to leave the UK, I would substitute a finding that the appellants' appeal should be allowed.
AP (Sri Lanka)
- AP is a citizen of Sri Lanka and was born on 23 December 1998. He arrived in the UK with his parents on 6 August 2006, when he was 7 years and 7 months old. He was the dependant of his father, who had leave to remain for the purpose of study. His father had a valid student visa from 6 August 2006 to 30 April 2008. He was granted further leave as a dependant to 31 May 2009 and a further extension to 28 February 2010.
- On 24 March 2010 he was refused as a dependant on his father's application for further leave as a highly skilled migrant. An appeal was lodged but withdrawn. The family returned to Sri Lanka and the father applied for a Tier 1 post-study work visa. That application was successful and the family returned to the UK in August 2010. However, the father was not able to secure suitable post-graduate study before the visa expired in August 2012. The father then applied for a Tier 1 Entrepreneur visa but that application was refused in March 2013. He appealed and the appeal was dismissed on 1 August 2013.
- On 5 November 2013 the applicant applied in his own right for indefinite leave to remain in the UK under rule 276ADE(1)(iv) on the basis that he had been living in the UK for 7 years.
- In a decision letter dated 18 March 2014 the Secretary of State informed the appellant that his application had been refused both under the rule and under article 8 ECHR and he would be removed from the UK. Although he had lived in the UK for at least 7 years, his parents had both been refused further leave in the UK. It was not unreasonable to expect him to return to Sri Lanka with them as a family unit to continue his education there.
- AP appealed that decision and in a determination promulgated on 19 January 2015 FTT Judge Finch allowed the appeal under paragraph 276ADE(1)(iv). In a very short judgment she found that he was entitled to limited leave to remain under that paragraph. However, she did not have regard to the reasonableness test. The Secretary of State appealed on the ground that this constituted an error of law. The Upper Tribunal agreed, set the decision and reasons aside and reheard the appeal. The appellant's representative said that he was prepared to go ahead immediately and that is what the judge did. The appellant's case was that he wished to stay because he had completed his GSCEs, was intending to do "A" levels and wanted to go to University. He spoke only English and all his connections were in the UK save for his maternal grandparents.
- In his decision promulgated on 19 June 2015 Deputy Upper Tribunal Judge Manuell rejected the application. He approached the question of reasonableness by applying the criteria adopted by the Court of Appeal in EV (Philippines). The question to be asked was whether it was reasonable to expect the child to follow his parents to their country of origin given that there was no reason why they should not return there. The judge found that it was reasonable (para.20):
"The tribunal is unable to find that it is unreasonable to expect the Appellant to return to Sri Lanka. The Appellant was always in the United Kingdom on a temporary and thus precarious basis…... As Mr Avery pointed out, the Appellant has reached a natural break in his education, having completed his GCSEs. It is not the United Kingdom's responsibility to provide for the Appellant's education. Any difference in quality between Sri Lanka and the United Kingdom respective systems is a matter for the government and citizens of Sri Lanka. The Appellant has his parents available for guidance and support."
- He judged the decision to be proportionate in view of the legitimate objective of immigration control. The child had roots in Sri Lanka and even if he could only speak English, he must initially have been educated in Sri Lanka in English and therefore it must be assumed that he could obtain appropriate teaching. At para.26 he said this:
"In the Tribunal's view the proportionality balance is against the appellant. He is simply being required to comply with the Immigration Rules which apply to everyone. His removal to his home country cannot be regarded as unreasonable nor will it create consequences which can sensibly be considered as unduly harsh for him."
- The appellant appeals this decision on two grounds. First, he says that the judge failed in his statutory duty under section 55 properly to consider the best interests of the child because he lacked information which enabled him to make that determination. In the circumstances the judge ought to have adjourned the hearing to enable further information to be obtained. This was so notwithstanding that the appellant's counsel had wanted the hearing to go ahead. Second, it is said that the judge adopted the wrong approach to the application of the reasonableness test.
- As I have already indicated, I would accept that there are cases where it may be an error of law for the judge to refuse to adjourn a hearing in order to obtain fuller information about the child's circumstances. But these will be exceptional cases and I do not agree that the judge was obliged to make that decision here. As Ms Giovannetti pointed out, the appellant was represented before the UT, his counsel wished the hearing to continue, and no submission was made that further documentary evidence was either available or necessary in order properly to determine the appeal. In my judgment another important feature is that the child was already 16. He was available to inform the court not only of his own wishes and interests, but also of certain factual material which might have been relevant. He was able to give evidence and be cross examined and was well able to tell the court how he would be adversely affected if he were to return to Sri Lanka, and how much or little he understood about Sri Lankan culture. In my view it was well within the discretion of the court to continue with the hearing as the appellant wished. I would therefore reject this ground of appeal.
- As to the reasonableness question, the appellant's principal submission was that the judge did not focus, as he should have done, on the position of the child, but instead looked at wider public interest considerations, including the immigration history of the parents and the fact that, as a consequence, the child's status was precarious. For reasons I have given, the application of the reasonableness test requires the judge to have regard to the wider public interests, and they require consideration of the immigration history and status of the parents. The judge was not therefore in error in applying the reasonableness test with a broad brush in a manner akin to an article 8 proportionality test.
- However, a related complaint is that even if the judge was entitled to look at the issue in that broader way, he failed properly to carry out the proportionality assessment. Part of this submission was that the judge ought to have adopted the "compelling circumstances" test adumbrated by Mr Justice Blake giving the judgment of the UT in Azimi-Moayed and Others. For reasons I have given when considering the case of MA (para.73 above), that is not the test.
- Nevertheless, I do not consider that the judge did approach the proportionality test properly. Nowhere did he identify the best interests of the child, nor did he specifically recognize that this would need to be a primary consideration. Nor did he recognize that particular weight had to be given to the fact that the child had been resident for seven years. The judge applied the balancing exercise without allowing for the strength of these factors. In addition, for reasons I have given when dealing with the joined Sri Lankan cases (para.88 above) he was wrong to give weight to the fact that the children were here on a precarious basis. Finally, it was unfortunate that the judge referred in para.26 to the fact that it would not be "unduly harsh" for the child to return. It does suggest that he might have approached the reasonableness test too strictly.
- For these reasons therefore, I would quash the decision. I do not think that this is a case where only one answer is possible and I would remit the matter to the Upper Tribunal for the issue to be determined afresh.
- I would dismiss the appeals in the joined Sri Lankan cases and in MA. I uphold the appeals in the other two cases. In the case of AZ (Pakistan) I would substitute a finding that the appellants' appeal is allowed and in AP I would remit the cases for a fresh determination.
Lady Justice King:
- I agree.
Sir Stephen Richards:
- I also agree.
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