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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> HU051882018 [2018] UKAITUR HU051882018 (27 November 2018)
URL: http://www.bailii.org/uk/cases/UKAITUR/2018/HU051882018.html
Cite as: [2018] UKAITUR HU51882018, [2018] UKAITUR HU051882018

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Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/05188/2018

 

THE IMMIGRATION ACTS

 

Heard at Field House

Decision & Reasons Promulgated

On 6 November 2018

On 27 November 2018

 

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

 

Between

 

Mr naeem ullah

(anonymity direction not made)

Appellant

 

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Representation :

 

For the Appellant: Miss B Hashmi, Solicitor, M & K Solicitors

For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

 

DECISION AND REASONS

Background

1.              The appellant is a citizen of Pakistan born on 5 April 1982 who appealed to the First-tier Tribunal against a decision of the respondent, dated 6 February 2018, to refuse his application for indefinite leave to remain. In a decision promulgated on 10 August 2018, Judge of the First-tier Tribunal Watson dismissed the appellant's appeal on human rights grounds.

2.              The appellant first entered the UK on 18 February 2007 with a valid student visa. He applied for subsequent visas both as a student and as a Tier 1 skilled migrant and obtained further leave to remain until 26 February 2016. On that date he applied as a Tier 1 skilled migrant but his application was refused on 9 August 2016. The appellant requested an administrative review of the decision which was maintained on 14 October 2016. On 1 November 2016 the appellant applied for indefinite leave to remain as a Tier 1 Migrant. That application was rejected on 17 February 2017. On 22 February 2017 the appellant submitted an application for indefinite leave to remain on the basis of long residency (ten years). Although the respondent's decision stated that the appellant had only accrued nine years and eight months of lawful stay, opening representations on behalf of the respondent before the First-tier Tribunal conceded that the decision letter had applied the new Immigration Rule paragraph 39E whereas the Rule in force at the relevant date allowed a 28 day grace period. Therefore the part of the refusal based on failure to submit within fourteen days was an error.

3.              It was agreed by the parties before the First-tier Tribunal that the appellant submitted an application for indefinite leave to remain as a Tier 1 Migrant within the 28 day period and his stay in the United Kingdom therefore remained lawful up until 17 February 2017 at which point the appellant had accrued nine years and 364 days' lawful stay. The Judge of the First-tier Tribunal found for the appellant on this basis and found that on the balance of probabilities the appellant had sent emails to the respondent as he had claimed and that it was disproportionate of the respondent to rely on the reason for refusal and the fact that the appellant had only nine years and 364 days as opposed to ten years. The judge found that he most likely would have had the requisite time if the correct responses and appointment for the biometric data appointment had been sent to him.

4.              However, the appellant's application was also refused on the basis that the appellant did not meet the suitability criteria contained in Rule 276B(ii)(c) with respect to his "personal history, including character, conduct, associations and employment record". The respondent further refused the appellant's application under the general grounds for refusal, paragraph 322(5). This was based on the respondent's conclusion that the appellant had gained a clear advantage by falsely declaring his income to the Home Office for the period 2012/2013 which enabled him to obtain his visa and/or falsely declaring his income to HMRC which enabled him to evade tax. The First-tier Tribunal concluded in relation to the tax history that the appellant had not shown that his submission of the 2012/2013 tax return was an innocent error and found that the appellant had acted dishonestly. The Judge of the First-tier Tribunal went on to consider the situation of the appellant's family but found that the decision to refuse leave was proportionate notwithstanding that the appellant had a qualifying child in terms as set in of Section 117B of the Nationality, Immigration and Asylum Act 2002.

Grounds of Appeal

5.              The appellant appeals with permission on the grounds that:-

(1)           The judge erred in failing to have proper regard to the fact that the appellant's eldest child is a qualifying child for the purposes of Section 117B;

(2)           in failing to make a proper assessment of the best interests of the appellant's three children;

(3)           in failing to consider material matters;/making a contradictory finding;

(4)           in failing to provide the correct standard of burden of proof in relation to paragraph 322(5) of the Immigration Rules.

Error of Law Hearing

6.              Miss Hashmi on the day submitted her skeleton argument. She submitted, relying on paragraph (g) of the grounds for permission, that the judge had misdirected herself in relation to the allegation of dishonesty against the appellant. Miss Hashmi relied on paragraphs 24 and 25 of the appellant's witness statement before the First-tier Tribunal where the appellant stated that he believed that he had made a mistake as follows:-

"24. I can confirm that the correct my earnings (sic) for the tax year ending April 2013 were £9,850 from my self-employment and my earnings from PAYE employment were £25,547.00. I believe the figure of £27,425.00 for PAYE employment earnings was a mistake. I am not sure why the HMRC have stated that I earned £21,123.00 from PAYE as my P60 end of year certificate confirms that I earned £25,574.00 from PAYE employment.

...

25. In respect of the initial income from self-employment of zero pounds this was an innocent error. I instructed an accountant, namely Heartlands Accountants - Business Consultants/tax advisers to prepare my accounts for the year ending April 2013. I paid the accountant to prepare my accounts and then I decided to do my own tax return as I thought it was simple and easy. I tried to do this on line but I was struggling to understand the right figures because of a lack of accounting knowledge, so I asked my accountant to complete it for me as a favour. My accountant agreed to do this favour for me. I presumed that he has filed my tax return in accordance with the repaired accounts. I did not follow up on this as he was previously reliable as my accountant and I took his word for it."

7.              Miss Hashmi submitted that the appellant was trying to say that the accountant had prepared his accounts, which he had paid for him to do, but not his tax return and that the judge had erred at [23] in finding it completely implausible that a professional accountant whom the appellant had paid to prepare the accounts would make such a basic error as putting in a figure of nil for self-employment tax return when he had compiled the self-employment accounts himself. Miss Hashmi submitted that the appellant never claimed that the accountant made this error whereas he said he did his own tax return. In addition, the appellant had volunteered the amendment to the respondent. Miss Hashmi submitted at length that the respondent had not discharged the burden and has not produced any documentary evidence, for example tax returns and therefore had not discharged the burden to show dishonesty. Miss Hashmi further submitted that paragraph 322(5) of the general grounds for refusal contains a discretion and that the judge's consideration did not fall within the policy guidance. She submitted that the appellant was not deceitful. Miss Hashmi relied on the case of Muhandiramge (Section S-LTR.1.7) [2015] UKUT 675 (IAC) in relation to the legal and evidential burden applying in a dishonesty case. Where dishonesty is alleged the evidential burden is on the Secretary of State to provide sufficient evidence and if this burden is discharged the burden then reverts to the appellant to provide an innocent explanation; if this is provided the burden reverts to the Secretary of State to establish why the innocent explanation is to be rejected.

8.              Miss Hashmi submitted that there were no cogent reasons provided by the respondent to say why the appellant had been deceitful and the respondent had failed to discharge the burden. Miss Hashmi reiterated that the judge had midisrected herself at paragraph 23. Miss Hashmi referred me to page 18 of the appellant's bundle, the respondent's refusal letter and relied also on page 67 of the appellant's bundle which shows the appellant's P60 which shows an income of £25,547.10 . The respondent had erred in this figure and the judge erred in finding that it was not an innocent mistake.

9.              Although Miss Hashmi reiterated that the appellant had done his own tax return and referred me to paragraph 25 of the appellant's witness statement, as I indicated, (and as quoted above) paragraph 25 also concludes that the appellant then asked his accountant to complete his tax return for him as a favour (and the judge records this at [22]) which contradicted Miss Hashmi's repeated assertions that the appellant did his own tax return. Miss Hashmi submitted again that the appellant also made a mistake in that he earned £25,547.10 - shown by his P60 (which the judge records at [21]) but he put in the figure of £21,000.00.

10.          In respect of the best interests argument, relying on paragraph ground 3(b) of the permission grounds, although the judge made mention of the children, Miss Hashmi submitted she erred and did not consider them properly and that the case law including MA (Pakistan) and Others (on the application of Upper Tribunal) Immigration and Asylum Chamber [2016] EWCA Civ 705 demanded a different approach and Miss Hashmi relied on paragraph 46 of MA (Pakistan) submitting that there were no strong reasons for refusing leave and this was not considered by the judge. Although the judge considered education this was not sufficient. She submitted there were no reasons given why it was reasonable for the family to return apart from education and it was submitted that she had failed to consider best interests. She further submitted there is nothing to show that the judge had considered how the family would relocate in Pakistan although she did not pursue this ground as it was not in the grounds for permission to appeal. In respect of paragraph (d) of the grounds for permission Miss Hashmi submitted that there were no cogent reasons for not considering paragraph 117B which she submitted that the judge had not done despite the fact that the judge mentioned Section 117B at [24].

11.          Mr Whitwell submitted that the judge's findings at [23] were clear and adequate findings that the appellant had been dishonest. It was his submission that at page 8 of the appellant's bundle, paragraph 25 of the appellant's witness statement, supported the Secretary of State's case as it clearly states that the appellant asked his accountant to complete his tax return for him. Therefore, there was no error in the judge's findings which were adequate that the judge found it completely implausible the professional accountant would make such a basic error.

12.          Mr Whitwell submitted that the judge set out the background of the case including the Tier 1 applications which is recited at page 18 of the Reasons for Refusal letter. The judge then comes back to this issue at [23] including where the judge made a number of clear, and Mr Whitwell submitted, adequate findings including that it was clear that the appellant was very alive to immigration issues. The judge weighed the evidence before him and reached adequate findings and in Mr Whitwell's submission the appellant was trying to reargue what was before the First-tier Tribunal. It was his further submission that the judge had adequately addressed the burden and standard of proof in relation to dishonesty in [23].

13.          Mr Whitwell submitted this case comes down to a question of reasonableness. At [24] the judge properly notes that there is a qualifying child and that this is the "strongest argument" the appellant has. He submitted that the determination had to be read as a whole. At [28] having looked at all the factors the judge found that whilst considering the best interests of the eldest child, it was in the public interest to refuse the appeal. It was his submission that the best interest findings were set out at paragraph [25].

14.          Mr Whitwell submitted that KO [2018] UKSC 53 confirms that an assessment of the child's best interests must be done in the real world and he submitted that the judge did exactly this and concluded that it was not unreasonable for the children to leave. At [25] the judge noted that the eldest child A was not old enough to have a strong private life of her own. The second factor was that the child and all the family are citizens of Pakistan and factor three was that there were no vulnerability issues and she had no learning difficulties. Factor four was the judge's findings that the appellant will be exposed to the main language of Pakistan at home and can be expected to learn it without undue harsh and delay. Factor five was that the qualifying child will have access to education in Pakistan and the judge took into account that she no longer had difficulties and has an excellent school report.

15.          The factors in Section 117B were taken into consideration at [27]. This contradicted the submission of Miss Hashmi that the judge had not considered Section 117B when the judge considered the factors and weighed them in favour of the appellant but noted that there were neutral factors including that the appellant owns a property, is self-sufficient and can speak English. In respect of KO Mr Whitwell submitted that decision-makers would have to take into account the relevant IDIs and that it is usually reasonable to leave when parents were leaving. The appellant's dishonesty had not been factored into the best interests' assessment. Mr Whitwell submitted that it was clear that the judge's findings were that it was in the best interests of the children to live with their parents in Pakistan and he did not need specifically to include this sentence as it was implicit from the findings. In respect of Miss Hashmi's submission that there was no specific findings about life in Pakistan, Mr Whitwell submitted that was not necessary to make findings in such detail and it was ultimately whether it was reasonable for the family to return and it was the judge's conclusions that it was. He submitted that there was nothing further needed in this case. Mr Whitwell noted that in KO the appellants NS who were Cambridge College of Learning appellants, where one of the children had been in the UK for more than ten years, had their appeal ultimately dismissed by the Supreme Court.

16.          Miss Hashmi in reply submitted that this was not a similar case to the Cambridge College of Learning case. She again reiterated that the respondent had not discharged the burden of proof in relation to the allegation of dishonesty and made a presumption on the respondent's side in relation to the amended tax returns where the HMRC had given the appellant the opportunity to amend the tax return the matter was finished and the HMRC did not proceed with the issue. This was a case where the appellant had discharged the burden of providing an innocent explanation including volunteering the information to the respondent.

Error of Law Discussion and Conclusions

17.          For the reasons set out below I am not satisfied that any error of law is disclosed in the decision of the First-tier Tribunal.

Grounds 3 and 4

18.          The thrust of Miss Hashmi's first argument was that the First-tier Tribunal misdirected itself in relation to the burden of proof and the general grounds of refusal in paragraph 322(5). I note that although permission was not specifically granted on this ground neither was it excluded. I therefore have considered it arguable however I am not satisfied it was made out.

19.          It is not fatal that the judge made no specific reference to paragraph 322(5) whereas the judge had considered paragraph 276B(ii)(c) in relation to character and conduct. The judge noted at [6] that this was similar to the general grounds of refusal. This was not specifically pursued at the error of law hearing and is not made out.

20.          I accept it was set out in the skeleton argument which was before the First-tier Tribunal and which the judge obviously had in mind that the burden is on the respondent if there is an allegation of fraud to prove it on the balance of probabilities, as recently highlighted by the Upper Tribunal ( see R(on the application of Khan) v Secretary of State for the Home Department (Dishonesty, tax return, paragraph 322(5) [2018] UKUT 384 (IAC)).

21.          The judge noted at [15] the appellant's tax returns and that the appellant had to correct his tax return for the year to 5 April 2013 as the figures were incorrect and that this was discovered when doing the 2014/15 accounts in 2016 and that this error was due to the previous accountant and discovered by Dinson & Co (and I note that there was no specific challenge in the grounds for permission or by Miss Hashmi to the judge's findings that the error was due to the previous accountant and not to the appellant as Miss Hashmi was attempting to suggest).

22.          At [16] the judge set out the details of the letter from HMRC responding to requests for information and the judge noted that the appellant's income for the years 2013/2014, 2014/2015, 2015/2016 and 2016/2017 was considerably less than that which had been claimed for the tax year 2012/2013 which was the year when an income from employed work of £27,000 was claimed together with self-employed income and this led to the award of a Tier 1 visa valid from 26 February 2013. Again, no error has been argued or is disclosed in respect of those findings.

23.          At [17] the judge notes a letter from Akhter's Accountants and that they had not prepared the previous erroneous accounts. The judge noted that the name of the accountant writing the letter was not Dinson & Co as claimed in the form requesting further information which the judge notes at [15]. The judge goes on to note the accounts for the year 31 December 2012 and at [19] notes the letter dated 25 May 2016 to HMRC stating that the appellant had submitted an amended tax return. It was the judge's findings, at [19] that this shows that the appellant was fully cognisant of HMRC matters and was again referring to a mistake which he claimed his present accountant pointed out to him. This clearly was relevant to the judge's ultimate finding of dishonesty. The judge went on to set out the appellant's tax paid and income summaries.

24.          At [22] the judge considered the appellant's oral evidence which is similar to what was said and was relied on heavily by Miss Hashmi, at paragraph 25 of the appellant's First-tier Tribunal witness statement, that he had started to fill in his 2012/2013 tax return and had some difficulties so asked his accountant to fill it in as a favour. The judge records that the accountant did it as a favour without payment as the accountant had already compiled the accounts for him. The accounts were made up to 21 December 2012 and are not based on tax year figures. This accountant had just filed the one return which was erroneous.

25.          Having considered all of these matters, the judge went on to make his key findings at [23]. Although I accept he did not specifically record the shifting burden of proof, it was clear that he had this in mind in setting out, prior to his findings at 23, all the evidence before him including of the offending tax return. It is evident, reading the decision as a whole, that this was sufficient to discharge the initial burden and that the judge was not satisfied that the appellant had provided an innocent explanation.

26.          The grounds of appeal and Miss Hashmi's expansion on those grounds are largely an attempt to re-argue the original appeal and amount to nothing more than a disagreement. The judge gave adequate reasons for not finding the appellant to be credible and I take into consideration that the judge had the benefit of hearing oral evidence from the appellant and reached findings that were available to the judge including that, despite subsequently correcting the error with HMRC, the appellant had gained a clear advantage for himself and that he obtained leave based on higher earnings as a Tier 1 Migrant for a period of three years; that the appellant's income in that year in which the grant of his visa was based was claimed as considerably higher than that recorded at the time by HMRC; and that the figures and the online records also differ greatly from that in the original HMRC recordings. The judge carried out a meticulous consideration of the evidence and reached findings which were open to her including that the judge was of the view that the appellant was very alive to immigration issues and had applied for new visas at the last possible moment on all occasions. There is nothing irrational in those findings. The fact that the judge did not specifically state that discretion should not be exercised in the appellant's favour is not fatal and was implicit in the judge's findings that the appellant had acted dishonestly and as such was not of the 'character and conduct required'.

27.          The respondent's own guidance states that a person does not need to have been convicted of a criminal offence and when deciding whether to refuse under paragraph 322(5) which the respondent did, the key thing to consider is if there is reliable evidence to support the decision that the person's behaviour calls into question their character and/or conduct and/or their association to the extent that it is undesirable to allow them to enter or remain in the UK. It is evident that the judge was satisfied that there was no error in the respondent not exercising the discretion inherent in paragraph 322(5) in the appellant's favour given the judge's findings that the appellant had gained a "clear advantage" for himself and had acted dishonestly and was not of the character or conduct required.

28.          In addition, the fact that the judge recorded the appellant's leave as expiring in 2016, whereas it had been agreed, at [4], that his stay in the UK remained lawful up until 17 February 2017, is not a material error and Miss Hashmi was right not to pursue this ground. Nothing turns on this and indeed it is on the face of it factually correct in that the appellant's grant of leave may have technically expired at that date but the judge had accepted that given the further submission the appellant had effectively had been lawfully in the UK until February 2017.

29.          There was no error of law identified in grounds 3 or 4.

Grounds 1 and 2

30.          In respect of the appellant's children and the judge's Article 8 findings, permission was granted largely on the basis that it was arguable that there was no assessment for best interests of the children in particular the qualifying child and arguably that the judge did not have regard to significant weight to attach to the fact a child has been present in the United Kingdom.

31.          A fair reading of the First-tier Tribunal's decision indicates that the judge had in mind the importance of the qualifying child, including that the judge set out the relevant provisions at [24] of Section 117B including that the public interest does not require the removal of a person who has a genuine parental relationship with a qualifying child that it would not be reasonable for that child to leave the UK.

32.          At [25] the judge carried out the best interests' assessment finding that her best interests were bound up by that of her parents and siblings. There is nothing irrational about that finding given that the qualifying child was only 7. It is not the case that the judge dismissing the child's life outside the home, but rather that her interests remain bound up with those of her parents and siblings and that she did not have a strong private life of her own. It was implicit in the judge's findings, including at [25], that the judge was satisfied that the children's best interests were in returning to Pakistan with their parents. I do not agree with Miss Hashmi's assessment that this consisted only of considering that the child could access education. In addition the judge considered that the family were all citizens of Pakistan, that the qualifying child had no learning difficulties, that she had an excellent school report and she was not vulnerable and in the judge's findings that she spoke the relevant languages or could achieve a degree of fluency without undue hardship and delay and that the family could all move without harm.

33.          I am satisfied that the judge did conduct a proper best interests' assessment. In addition, although it was argued at paragraph (c) of the grounds for permission that the judge had failed to consider the entire family including the appellant's wife and remaining children aged 5 and 1, it is evident that the judge made available findings in relation to the whole family including that the family could move back to Pakistan without harm and that they would move as a unit. The judge had in mind the best interests of all the children and there was nothing before me to suggest that there was anything that the judge missed in respect of the best interests of the younger children or that there was anything missed in the judge's balancing exercise in respect of the family as a whole including the wife who was necessarily included in the judge's consideration of the "family".

34.          The grounds relied on MT and ET (child's best interests) Nigeria [2018] UKUT 88 (IAC). The judge had addressed this issue in his findings that this was a child who was just 7 and although she had an excellent school report and the judge considered her education, her life was "bound up" with the parents and siblings. It was not suggested before me, and there was no evidence that might have supported such a finding, that the best interests of the child in this case are commensurate with those considered in MT and ET.

35.          I have considered the recent guidance from the Supreme Court in KO (above):

"10. The President also cited (paragraph 16) relevant guidance contained in the Immigration Directorate Instruction ("IDI") of the Home Office entitled "Family Life (as a partner or parent) and Private Life: Ten Year Routes", published in August 2015, extracts of which were appended to the judgment (Appendix 2). They included a section headed "Would it be unreasonable to expect a non-British citizen to leave the UK?", under which were set out a number of "relevant considerations" such as risk to the child's health, family ties in the UK and likelihood of integration into life in another country and:

"b. Whether the child would be leaving the UK with their parent(s).

It is generally the case that it is in a child's best interests to remain with their parent(s). Unless special factors apply, it will generally be reasonable to expect a child to leave the UK with their parent(s), particularly if the parent(s) have no right living in the UK."

There was no reference in the list to the criminality or immigration record of parents as a relevant factor.

11. The most recent version of the IDI (22 February 2018) no doubt taking account of Court of Appeal decisions which I shall refer below, includes an additional paragraph, which more closely reflects the Secretary of State's submissions in the present case:

"The consideration of the child's best interests must not be affected by the conduct or immigration history of the parent(s) or primary carer, but these will be relevant in the assessment of the public interest, including in maintaining effective immigration control; whether this outweighs the child's best interests; and whether in the round, it is reasonable to expect the child to leave the UK" (Family Migration: Appendix FM Section 1.0b. Family Life (as a Partner or Parent) and Private Life; Ten Year Routes, p 76)."

......

16. It is natural to begin with the first in time, that is paragraph 276ADE(1)(iv). This paragraph is directed solely to the position of the child. Unlike its predecessor DP5/96 it contains no requirement to consider the criminality or misconduct of a parent as a balancing factor. It is impossible in my view to read it as importing such a requirement by implication.

17. As has been seen, Section 117B(6) incorporated the substance of the Rule without material change, but this time in the context of the right of the parent to remain. I would infer that it was intended to have the same effect. The question again is what is "reasonable" for the child. As Elias LJ said in MA (Pakistan) Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705, [2016] 1 WLR 5093 , paragraph 36, there is nothing in the subsection to import a reference to the conduct of the parent. Section 117B sets out a number of factors relating to those seeking leave to enter or remain, but criminality is not one of those. Subsection 117B(6) is on its face free-standing, the only qualification being that the person relying on it is not liable to deportation. The list of relevant factors set out in the IDI guidance (paragraph 10 above) seems to me wholly appropriate and sound in law, in the context of Section 117B(6) as of paragraph 276ADE(1)(iv).

18. On the other hand, as the IDI guidance acknowledges, it seems to me inevitably relevant in both contexts to consider where the parents, apart from the relevant provision, are expected to be, since it will normally be reasonable for the child to be with them. To that extent the record of the parents may become indirectly material, if it leads to their ceasing to have a right to remain here and having to leave. It is only if, even on that hypothesis, it would not be reasonable for the child to leave that the provision may give the parents a right to remain. The point was well expressed by Lord Boyd in SA (Bangladesh v Secretary of State for the Home Department) [2017] SLT 1245:

"22. In my opinion before one embarks on an assessment of whether it is reasonable to expect the child to leave the UK one has to address the question, 'Why would the child be expected to leave the United Kingdom?' In a case such as this there can only be one answer: 'because the parents have no right to remain in the UK'. To approach the question any other way strips away the context in which the assessment of reasonableness is being made ..."

19. He noted [paragraph 21] that Lewison LJ had made a similar point in considering the "best interests" of children in the context of Section 55 of the Borders, Citizenship and Immigration Act 2009 in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874 , paragraph 58:

"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 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?"

To the extent Elias LJ may have suggested otherwise in MA (Pakistan) paragraph 40, I would respectfully disagree. There is nothing in the section to suggest that "reasonableness" is to be considered otherwise in than in the real world in which the children find themselves."

36.          Therefore, the relevant question is where the parents can be expected to be and the situation of the child must be considered on the basis of the facts "as they are in the real world". That in my view is precisely what the judge in this case has done. In considering, at [28], that the appellant had been dishonest the judge was considering the appellant's conduct relevant in so far as it meant that the parents had to leave the country (see paragraph 51 of KO). It is not the case, reading the determination as a whole, that the judge has imported an incorrect test. Rather this is a case where the appellant must leave because he has been dishonest and neither the appellant nor his wife have a right to remain. The judge considered the facts in this context. The judge made best interest findings and found it was reasonable for the children to follow their parents to Pakistan for the reasons the judge gave including at [25].

37.          No errors of law are disclosed in grounds 1 or 2. The decision of the First-tier Tribunal does not contain an error of law and shall stand.

 

No anonymity direction is made.

 

Signed Date: 20 November 2018

 

Deputy Upper Tribunal Judge Hutchinson

 

TO THE RESPONDENT

FEE AWARD

 

The appeal is dismissed. No fee award can therefore be made.

 

Signed Date: 20 November 2018

 

Deputy Upper Tribunal Judge Hutchinson


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