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||Neutral Citation Number:  EWCA Civ 260
||Case No: C5/2015/0818
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (Immigration & Asylum Chamber)
Deputy Upper Tribunal Judge Hanbury
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE McFARLANE
- and -
LORD JUSTICE KITCHIN
|| TA (SRI LANKA)
By her litigation friend, AB
||- and -
||SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Mr Danny Bazini (instructed by JJ Law Chambers) for the Appellant
Mr Rob Harland (instructed by Government Legal Department) for the Respondent
Hearing date : 7 February 2018
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Kitchin: :
- On 25 March 2013 the appellant, a Sri Lankan national, who was born on 24 May 2002, applied to the respondent, the Secretary of State for the Home Department, for leave to remain in the United Kingdom outside the immigration rules, relying on her rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as applied by the Human Rights Act 1998. This application was refused on 17 September 2013. The appellant appealed to the First-tier Tribunal (Immigration and Asylum chamber) which allowed her appeal by a decision promulgated on 19 September 2014 (First–tier Tribunal Judge Dineen). The Secretary of State then appealed to the Upper Tribunal (Immigration and Asylum Chamber) which allowed her appeal by a decision promulgated on 19 December 2014 (Deputy Upper Tribunal Judge Hanbury). The appellant now appeals to this court with permission granted by Elias LJ at an oral hearing on 3 November 2016, permission having been refused on the papers by Laws LJ.
The factual background
- The factual background may be summarised as follows. The appellant first entered the UK on 27 August 2004. She was accompanied by her parents, who came here to study, and her brother. In August 2007 the appellant returned to Sri Lanka with her family. In November 2010 the appellant returned to the UK with her family, which now included a further brother. In January 2011 the appellant's parents and her two brothers returned to Sri Lanka, leaving her in the UK with her grandparents. As a result, at the time of her application, the appellant had been in the UK for an uninterrupted period of about 2 years and 10 months and by the time of the hearing before the First-tier tribunal, that uninterrupted period had grown to a little under 4 years, and for the last two of those years she had been cared for by her grandparents. Overall, she had been in the UK for about 7 years.
- The appellant's parents divorced in 2013 and her brothers live with their father in Sri Lanka. Their mother, who also lives in Sri Lanka, suffers from a depressive disorder.
- On 25 March 2013 the appellant made her application for leave to remain in the UK outside the immigration rules on the basis of her family and private life with her grandparents who are now, by order of the court, her special guardians.
The correct approach
- There was no real dispute between the parties as to the approach to be adopted by the Court of Appeal on an appeal such as this. The appeal is against the determination of the Upper Tribunal. It is only if that determination contains an error of law that the Court of Appeal can allow an appeal from it. If the Upper Tribunal has properly directed itself as to the approach to be adopted on an appeal from the First-tier Tribunal, and has arrived at a conclusion that was open to it, the determination of the Upper Tribunal contains no material error of law, even if this court might have been more generous in its approach to the determination of the First-tier Tribunal: see Adedoyin v SSHD  EWHC Civ 939 at .
- In R (Iran) v SSHD  EWCA Civ 982, Brooke LJ summarised at  the errors on points of law that will most frequently be encountered in practice:
i) making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
ii) failing to give reasons or any adequate reasons for findings on material matters;
iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;
iv) giving weight to immaterial matters;
v) making a material misdirection of law on any material matter;
vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
vii) making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made."
- Where the Upper Tribunal finds an error of law then it may (but need not) set aside the decision of the First-tier Tribunal. If it does set aside the decision of the First-tier Tribunal then it must either remit the case to the First-tier Tribunal with directions for its reconsideration or re-make the decision: see s.12 of the Tribunals, Courts and Enforcement Act 2007. When permission to appeal to the Upper Tribunal has been granted, the parties should assume that the Upper Tribunal will, if it identifies an error on a point of law and is satisfied that the original decision should be set aside, proceed to remake the decision. In that event, the Upper Tribunal will consider whether to remake the decision by reference to the First-tier Tribunal's findings of fact, and it will generally do so save and in so far as those findings have been infected by any identified error or errors of law.
The decision of the First-tier Tribunal
- The First-tier Tribunal identified the material parts of the appellant's case as these. First, it was her clear wish to remain in the UK. Secondly, in terms of her cultural identity, the appellant felt both Sri Lankan and British, but more British than Sri Lankan. Thirdly, the appellant's grandparents were eminently suitable as carers and they were devoted to the appellant, and she was devoted to them. Their relationship was one of mutual love and affection. Fourthly, the appellant was doing very well at school.
- Then, after finding that the removal of the appellant to Sri Lanka would involve an interference with the strong family life that she was enjoying with her grandparents in the UK and that this interference would be consistent with the lawful aims of the respondent, the First-tier Tribunal addressed the issue of proportionality and reasoned as follows:
"31. To begin with the appellant's interests must be regarded as the primary consideration. That means not that they are a paramount consideration but they must be considered first.
32. I take into account that the appellant is clearly very happy in the UK.
33. I am satisfied that she would be greatly distressed by having to return to Sri Lanka.
34. I take into account that she has been in the UK for seven years of her 12 years of life so far and that she has been here for nearly five years since she was aged 7.
35. I take into account that her education is progressing very well in the UK and that it would be subject to serious disruption if she were to be removed now at the age of 12 years.
36. I take into account that she now has the benefit of being in a very stable family environment, whereas if she were to return to Sri Lanka she would have to be living with a parent who is separated from a stable family environment. If with her mother she would also be living with a parent not only is suffering from depression but also has expressed a wish that the appellant herself should actually remain in the UK rather than joining her in Sri Lanka.
37. I am satisfied in the circumstances which would prevail for her in that country so far as family life is concerned would be very significantly inferior to the corresponding circumstances in the UK.
38. I take into account that the appellant has spent a good part of her formative years in the UK with her grandparents and I take into account that while she has some knowledge of the Sri Lankan languages, her culture is now very firmly British and it would be a culture shock for her to go to Sri Lanka into completely different circumstances.
39. Taking all these matters together I find that the proportionality factor comes down firmly in favour of the appellant remaining in the UK and I find that it would be a disproportionate interference with the family life for her to be removed."
- The First-tier Tribunal concluded that this was a case involving compelling circumstances which required consideration outside the immigration rules.
The decision of the Upper Tribunal
- In the Upper Tribunal, the respondent argued, inter alia, that the First-tier Tribunal had failed to have any or any adequate regard to the requirements of the immigration rules, had made plain errors in making its findings of fact and had failed properly to approach the question whether there were here compelling circumstances which justified a finding that removal would constitute a disproportionate interference with the appellant's family life. The appellant contended that the First-tier Tribunal had been right to find that there were compelling circumstances for considering her claim outside the immigration rules, and that no error could be found in the decision and no proper basis had been shown for interfering with it.
- The Upper Tribunal summarised the relevant evidence at  in these terms:
"15. The evidence here is that both the appellant's parents were living in Sri Lanka at the date of that hearing. They had apparently separated and a divorce petition had been presented in August 2013. Both the appellant's brothers resided with the father and there was nothing to suggest that they were not well cared for. Although the appellant's mother was said to suffer from ill-health, there was no adequate evidence before the First-tier Tribunal that her depression would materially interfere with her ability to bring up her daughter. In any event, the doctor's letter at page 49 in the appellant's bundle does not give any particulars of any treatment and "recurrent depressive disorder" may be no more than depression from which a large part of the population suffers at some point. While the appellant's own wishes may have been a relevant factor, she was only 12 at the date of the hearing and a letter written by her seems to indicate that she had an enjoyable life in England with her grandparents, who clearly love her. The appellant appeared to be doing well at school but I agree with Miss Everett that it is by no means clear to the Tribunal that had she not been doing well at school this would have been a reason for disrupting her education. I bear in mind that it is the view of her headmistress that it would be "detrimental" to her education to remove her. However, no evidence was placed before the First-tier Tribunal that the education system in Sri Lanka was inadequate. Although the appellant is described as feeling "more British than Sri Lankan" I note that the Immigration Judge also observed that her cultural identity was mixed and that it seemed to be accepted by both parties that the appellant would also speak her parents' native tongue, it seems Sinhalese."
- The Upper Tribunal then proceeded to make certain findings concerning the conclusions reached by the First-tier Tribunal. It found first of all that the First-tier Tribunal had no proper basis for concluding that the appellant would be "greatly distressed by having to return to Sri Lanka". This was not a case where the appellant had lost all contact with her parents. Further, the First-tier Tribunal's conclusion that the appellant was "now very firmly British" and that it would be "a significant culture shock for her to go to Sri Lanka into completely different circumstances" was inconsistent with its own earlier finding that the appellant's cultural identity was mixed and that, although she felt more British than Sri Lankan, she spoke the languages of both territories. Further, so far as "the very stable family environment" was concerned, there was no reason to suppose the appellant would not also have a stable family environment in Sri Lanka with one of her parents.
- The attention of the Upper Tribunal was also drawn to the special guardianship schedule. This recorded that the appellant had said to the senior social worker that she missed both her parents, particularly her father at birthdays and family celebrations. What was more, the Upper Tribunal continued, there was no reason why the appellant could not continue to maintain close links with her grandparents and even visit them, were she to return to Sri Lanka.
- The Upper Tribunal then set out its findings at :
"18. I find that the Immigration Judge failed to have any or any adequate regard to the requirements of the Immigration Rules, the appellant's relatively short period of continuous residence in the UK (four not five years), and the fact that the appellant may achieve a higher educational standard in the UK than in Sri Lanka. The Immigration Judge attached excessive weight to the short term distress caused by the appellant's removal to her home country and failed to consider the desirability of reunification of the family unit in Sri Lanka. The Immigration Judge does not appear clearly to have set out the requirements of the Rules and considered whether this was a case where it was appropriate to consider a "freestanding" claim under Article 8 of the ECHR. He states in paragraph 24 of his determination that "this is governed by Article 8…". It is not. It is governed by the Immigration Rules. He also states that the interference would be consistent with the lawful aims open to the respondent under Article 8.2 but that appears to contradict later findings of his. In truth there are no compelling circumstances here which would justify a departure from the requirements of the Immigration Rules. The case could not properly fall within the category of disproportionate interference with the appellant's human rights. The Immigration Judge appears to have decided the case more on the basis of desirability and I am satisfied that he did not place section 55 of the UK Borders Act 2007 in its proper context of a proportionality assessment. I find that there is not in fact any adequate evidence that the appellant's personal welfare would be adversely affected by her return to Sri Lanka."
- In conclusion, the Upper Tribunal found that the First-tier Tribunal had attached insufficient weight to the presence of the appellant's family in Sri Lanka and made a decision on Article 8 that was not properly open to it. In the circumstances, it was right to set the decision of the First-tier Tribunal aside and to remake it. The Upper Tribunal duly did so and proceeded to allow the respondent's appeal.
- The appellant has been represented on this appeal by Mr Danny Bazini. He submits that the First-tier Tribunal directed itself correctly as to the law, had appropriate regard to the immigration rules, identified the relevant question as being whether the factors of the case were sufficiently compelling to justify the grant of leave to remain, and properly took into account, in the proportionality context, section 55 of the Borders, Citizenship and Immigration Act of 2009.
- Further, continues Mr Bazini, the grounds of the respondent's appeal to the Upper Tribunal did not disclose any arguable error of law and amounted to an invitation to the Upper Tribunal to reconsider the merits of the application without any proper basis for doing so.
- Then, says Mr Bazini, the Upper Tribunal proceeded to interfere with the findings made by the First-tier Tribunal, even though those findings had not been challenged in the grounds of appeal and were not on any basis tainted by any alleged error of law.
- Overall, Mr Bazini concludes, there was no material error of law in the First-tier Tribunal decision and none was identified in the grounds of appeal. Although the decision may have been somewhat generous to the appellant, that did not entitle the Upper Tribunal to interfere with it.
- The respondent, represented by Mr Robert Harland, submits that the Upper Tribunal was entirely right to find that the First-tier tribunal had fallen into error as a matter of law and that its decision was unsustainable. In those circumstances, it was for the Upper Tribunal to remake the decision by reference to the First-tier Tribunal's findings of fact, or, in so far as the First-tier Tribunal had fallen into error in making those findings, by making such further findings as it considered appropriate. In all the circumstances of this case, Mr Harland continues, the decision of the Upper Tribunal is unimpeachable.
- In assessing these rival submissions, it is important to have in mind at the outset the general principles which need to be borne in mind when considering the interests of a child in the context of an Article 8 evaluation. In particular, the respondent has an overriding obligation to have regard to the welfare of a child in the exercise of her various statutory functions. The best interests of a child are therefore an integral part of the proportionality assessment under Article 8. In carrying out that assessment it is important to have a clear idea of a child's circumstances and of what is in a child's best interests before determining whether those interests are outweighed by the force of other considerations. In carrying out that evaluation, the best interests of the child must be a primary consideration although not necessarily the only primary consideration. It necessarily follows that the best interests of a child can be outweighed by the cumulative effect of other considerations; but no consideration can be treated as inherently more significant than the child's best interests. Ultimately the decision maker must carry out a careful examination and evaluation of all relevant factors with these principles in mind. The question is whether, having regard to the foregoing, there are compelling circumstances which justify the grant of leave to remain outside the immigration rules.
- That said, I turn to the grounds of appeal and can dispose of one point at the outset. I reject the contention that the respondent's grounds of appeal to the Upper Tribunal did not disclose any arguable error of law or amounted to an impermissible invitation to the Upper Tribunal to reconsider the merits of the case. In my judgment the grounds of appeal to the Upper Tribunal were cast in sufficiently general terms properly to encompass the matters which it proceeded to address. Nor have I detected any respect in which the approach taken before the Upper Tribunal resulted in any prejudice to the appellant.
- That brings me to the heart of this appeal, namely whether the Upper Tribunal had any proper basis for interfering with the decision of the First-tier Tribunal. In my judgment the Upper Tribunal was right to find that the First-tier Tribunal had made a number of material errors in carrying out the Article 8 assessment in this case.
- First, the First-tier Tribunal was plainly wrong to find that the appellant had lived in the UK for an uninterrupted period of nearly 5 years at the date of the hearing before it. In fact, the appellant had lived in the UK for an uninterrupted period of only 3 years and 10 months at that date, and for an uninterrupted period of 4 years and 1 month at the date of the Upper Tribunal decision. Mr Bazini invited us to characterise this error as being minor or insignificant but that is an invitation I cannot accept. It seems to me that it is a significant error having regard to paragraph 276 ADE (iv) of the rules which specifies, in material part, that, as at the date of the application, the applicant:
"(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting an period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK;"
Moreover, for the 3 years preceding the appellant's return to the UK, she had lived in Sri Lanka with her parents.
- Secondly, I am satisfied that the First-tier Tribunal fell into material error in finding that, were the appellant to return to Sri Lanka, she would be living with a parent who "is separated from a stable family environment". In my judgment the First-tier Tribunal took no or no proper account of the fact that the appellant's father was living in Sri Lanka with her brothers in what appeared to be an entirely stable and loving environment, and that there was no reason why the appellant could not join this family unit. What was more, there was no evidence before the First-tier Tribunal to the effect that the appellant's mother could not provide the appellant with a loving and stable environment. It was true that her mother was suffering from depression but there was nothing before the tribunal which could support a conclusion that this would prevent her from properly caring for her daughter in a loving and stable way.
- Thirdly, the First-tier Tribunal's findings at  and  that the appellant was very happy in the UK and would be very distressed by having to return to Sri Lanka presented a far from complete picture of this aspect of the appellant's circumstances. First of all, the finding as to the appellant's state of mind was based upon a letter which the appellant wrote when she was only 10 years old. Secondly, the First-tier Tribunal made no mention of the fact that the appellant missed her parents, particularly her father, and that this was especially so at the times of family birthdays and other family celebrations. Moreover, as Mr Harland submits and I accept, the First-tier Tribunal fell into error in failing to attach any weight to the powerful interest in reuniting a child with her parents when there remains a clear bond of love between them.
- Fourthly, I am satisfied that the Upper Tribunal was entitled to question the finding of the First-tier Tribunal that the appellant's education would be subject to serious disruption were she to be removed. As the Upper Tribunal pointed out at , there was no evidence to that effect; nor was there evidence that the appellant would suffer any other detriment in this regard further to that which is inevitable when a person of the appellant's age changes school. Further, there was no evidence to the effect that the education system in Sri Lanka was inadequate.
- Fifthly, the First-tier Tribunal failed to take any or any proper account of the fact that the appellant has a mixed Sri Lankan and British cultural identity. She speaks both English and her parents' native language. Furthermore, its finding that the appellant's culture was very firmly British and that it would be a significant culture shock for her to return to Sri Lanka was not supported by the evidence. Whilst it was no doubt true to say that the appellant would suffer some short-term distress as a result of the removal to Sri Lanka, there was nothing before the tribunal to justify a conclusion that this distress would be deep or long-lasting. Moreover, the First-tier Tribunal gave no proper consideration to the fact that the appellant could retain and maintain close links with her grandparents or even visit them following her return to Sri Lanka.
- For all of these reasons, I accept the submission of Mr Harland that the First-tier Tribunal made clear errors and failed to take into account material matters in reaching its decision. In these circumstances, the Upper Tribunal was bound to reassess the circumstances of the case and to reach its own conclusion as to whether or not there were compelling circumstances which would justify the grant of leave to remain outside the immigration rules.
- In my judgment, the decision of the Upper Tribunal is adequately reasoned and no basis has been shown upon which this court could interfere with it.
- I would dismiss this appeal.
Lord Justice McFarlane:
- I agree.
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