England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (Immigration and Asylum Chamber)
Upper Tribunal Judge Kekić
IA/04038/2012/IA/04041/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th June 2013

Lord Justice Patten :

1. This is an appeal (with the permission of Longmore LJ) against a decision of the Upper Tribunal (Immigration and Asylum Chamber) (Judge Kekić) dated 19^th September 2012 dismissing the appellants' appeal against the decision of Judge Phillips in the First-tier Tribunal who had himself dismissed their earlier appeal against the Secretary of State's decision that they were liable to be removed. That decision which is dated 31^st January 2012 was taken following the refusal of the appellants' applications for leave to remain outside the Immigration Rules and under Article 8 of the European Convention on Human Rights.
2. The appellants are mother and daughter. The mother was born in August 1985 in South Africa and is a South African citizen. She arrived in the United Kingdom on 16^th March 2005 and was granted leave to enter as a working holiday maker until 16^th March 2007. Her daughter was born on 22^nd August 2007 and had leave to remain as the dependant child of her father until 31^st October 2009. He is a national of the Ivory Coast and was removed there on 25^th March 2012 after a failed asylum application. The daughter has had no valid leave to remain since 12^th November 2009 but has continued to live with her mother. The mother made an application for an EEA residence card on 24^th February 2009 which was refused on 12^th November 2009. She has had no valid leave to remain since then but has remained in the United Kingdom unlawfully.
3. The application for leave to remain outside the Immigration Rules or under Article 8 were based on the family and private life which the appellants contend that they enjoy in the United Kingdom with the mother's parents who have settled status here. It was submitted that the mother provides care for her parents but also works to support herself and her daughter. The Secretary of State considered that the appellants had not established family life with the parents or other members of the family in the UK for the purposes of Article 8 and, as part of the s.82 appeal, Judge Phillips conducted an oral hearing at which the mother and grandmother gave evidence. The mother explained that the father was now living in Abidjan in his parents' house and that she was in telephone contact with him on a daily basis. Her intention, if her application succeeded, was to remain in the UK and apply for permission for her husband to join her.
4. She explained that she works in London three days a week (although not permitted to work) in order to support herself and her daughter who remains in Sheffield with the grandparents where she is at school when her mother is away at work. The mother gave evidence that her parents (in particular, her father, who is ill) could not cope without her help. If removed to South Africa she would have no close family to help her and would be unable to go to the Ivory Coast because it was unsafe and she cannot speak French.
5. In a detailed judgment, Judge Phillips set out the appellants' immigration history and the state of their family and private life, particularly in relation to the grandparents. She found that the mother was not supported financially by her parents nor did she provide financial support to them. At paragraph 34 she said:

"The appellant claims to have established family life in the United Kingdom with her parents and extended family. I find that the onus of proof has not been discharged. This is because I find that the dependence has been exaggerated and woven around recent events in an attempt to manipulate the situation so as to enable the appellants to settle in the United Kingdom with the appellant's husband. It is simply not credible that the appellant is the carer for her father and mother when she has not been recognised as such by the social work authorities, is working in London three days a week, both parents were working full time until about the beginning of February and the second appellant is left in the care of her grandparents while the appellant is in London."

6. She held that they had not discharged the onus of proving that they had an established family life with the grandparents and the mother's extended family in the UK sufficient to engage Article 8 or to make their removal in accordance with the Immigration Laws disproportionate. At paragraph 56, she said:

"I respectfully adopt and follow the reasoning in Imoh [2002] UKAIT 01967 where the principle is set out that it is not possible to use the Human Rights Act in order to establish a family life in the United Kingdom so that dependants who would not be able to enter the United Kingdom because the sponsor was not settled in the United Kingdom can do so."

7. She went on to say that the mother and daughter had established a private life in the UK which did engage Article 8. But their position here was precarious. She had to give specific consideration to the best interests of the daughter as a child but said that she would be entitled to both South African and Ivory Coast passports and would be able successfully to establish a family life with her parents and paternal grandparents in the Ivory Coast. Any disruption in her life or that of her mother would not go beyond the mere hardship or inconvenience involved in resettlement: see VW (Uganda) [2009] EWCA Civ 5. She therefore dismissed the appeals.
8. The mother and daughter then applied for permission to appeal on the ground that Judge Phillips had misdirected herself in relation to the claim under Article 8 including in respect of her reliance on the decision in Imoh. That was a case in which a young girl applied for entry clearance to the UK in order to join her aunt and uncle here, neither of whom were themselves yet settled in the UK. The decision, it was said, had no relevance to the present case where the grandparents were clearly settled here.
9. Immigration Judge French gave permission to appeal on 9^th May 2012 because it was arguable that Judge Phillips had misdirected herself in relying on Imoh and had not given due regard to the daughter's relationship with her grandparents and the difficulties she and her mother might face in the Ivory Coast when assessing her best interests. On 11^th May 2012 the Upper Tribunal (Principal Resident Judge Southern) gave directions about the conduct of the appeal. Paragraph 1 of the directions stated that:

"Not later than 21 days after the date on which these directions are sent out:

(a) unless the appellant is relying solely on the grounds for seeking permission to appeal, the appellant must file with the Upper Tribunal and serve on the respondent a skeleton argument or written submissions setting out (i) all lines of argument pursued, both as regards the reasons why the determination of the first-tier Tribunal should be set aside and as to the re-making of the decision in the appeal, if that determination is set aside; and (ii) whether the appellant wants the case to be dealt with at a hearing or decided on the papers without an oral hearing.

(b) where the appellant wishes the Upper Tribunal to consider evidence that was not before the First-tier Tribunal, that evidence (including any witness statement) must be filed with the Upper Tribunal and served on the respondent; together with the notice required by rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, indicating the nature of that evidence and explaining why it was not submitted to the First-tier Tribunal."

10. This was followed by directions about the filing of any response by the Secretary of State to the notice of appeal or the appellants' skeleton argument and submissions and the filing by the appellants of a reply. Paragraph 4 of the directions then stated:

"The parties are on notice that:

(a) the Upper Tribunal will consider everything received by it in response to these directions, including any submissions upon the need for an oral hearing, before deciding under rule 34 whether it is necessary to have an oral hearing of any aspect of the appeal; and

(b) a failure by a party to comply with any of these directions may lead the Upper Tribunal to proceed on the basis that nothing (or nothing further) is to be said or advanced in support of that party's case before the Upper Tribunal."

11. The appellants did not file any documents in response to these directions and on 6^th August 2012 Judge Kekić proceeded to determine the appeal in the Upper Tribunal without a hearing. In paragraph 4 of her determination she said:

"Following the grant of permission, directions were sent out to the appellant and the respondent indicating that the matter could be determined on the papers if there was no response submitted. There was no response and I now proceed to determine this matter on the papers. No further evidence has been adduced."

12. The judge then proceeded to set out the two permitted grounds of appeal and the findings of Judge Phillips that the mother was not financially dependent on her parents and that her father's claim to need 24 hour care was unsupported by any medical evidence. In relation to the two grounds of appeal, she said this:

"9. The judge gave her reasons for rejecting the claim of family life between the appellant and her parents in paragraph 54. She found that the parents had been in full time employment until very recently, that the appellant has been living and working in London, leaving her parents to care for the second appellant and that the local authorities had not recognised the first appellant as her parents' carer. Her reliance on Imoh was in respect of the family life the appellant was trying to establish in the UK with a view to bringing back her partner; the author of the grounds has either misunderstood the point made by the judge or has disingenuously attempted to misunderstand it.

10. The judge properly accepted, however, that the appellant had a private life in the UK and that her parents were part of that. Given that the proportionality exercise was carried out in that respect, even if there had been an error with regard to the findings on family life, it cannot impact upon the outcome of the appeal. There is no difference between how family and private life elements are assessed. The judge has also considered section 55 with care (paragraphs 58-63 and 67). She was entitled to find that the claim that the appellant's partner lived in the family house in Abidjan but without any family lacked credibility. She considered that it was open to the appellants to live in South Africa or the Côte d'Ivorie. She took account of the second appellant's very young age and concluded that her best interests would be to be with her parents whichever country that might be in. Whilst the grounds complain the judge did not take account of how living outside the UK would impact upon the second appellant, there was no evidence before the judge on any adverse effects this might have. The judge considered the impact of removal upon the appellant's parents but noted that they had another daughter here, another grandchild and other family members and could receive support from the social services if required. She balanced the factors pleaded for the appellants against the countervailing factors. Her approach was not a misdirection of the law as asserted by the grounds. The determination is, on the contrary, carefully considered and adequately reasoned. The judge has properly explained her findings and conclusions. No error of law has been identified in the determination."

13. He therefore concluded that the judge had not made any error of law when dismissing the appeals.
14. On 1^st October 2012 the appellants' solicitors submitted to the Upper Tribunal grounds of appeal to the Court of Appeal against the decision of Judge Kekić in which they also asked the Upper Tribunal to set aside the appeal determination and to permit the appeal to be re-argued at an oral hearing. Alternatively, the appeal document states that Judge Kekić had herself misinterpreted the reliance placed by Judge Phillips on Imoh and was wrong to uphold the decision of Judge Phillips that the appellants had failed to establish a family life for the purposes of Article 8. The grounds of appeal to this court were therefore near identical to those relied on in the Upper Tribunal.
15. On 21^st November 2012 Judge Kekić rejected the request for an oral re-hearing of the appeal holding that the directions given by Judge Southern were clear and that, in the absence of a response, she had been entitled to proceed to determine the appeal without an oral hearing. The other grounds of appeal raised, she said, no arguable point of law.
16. The appellants then appealed to this Court for permission to appeal on the grounds rejected by Judge Kekić. In relation to the procedural point about the absence of an oral hearing, they submit in the grounds of appeal that what they describe as the administrative error was no fault of theirs. This is elaborated upon in a witness statement from Mr Olayinka of Raj Law Solicitors in which he states that upon receipt of the directions for the appeal to the Upper Tribunal, he telephoned Ms Sara Anzani of counsel, who then acted for the appellants, and was told by her that he need take no further action until they received a hearing date. There is nothing from Ms Anzani which either supports or contradicts that account. Longmore LJ granted permission to appeal on the basis that the appellants or their solicitors might well have assumed from the terms of paragraph 1(a) of the directions that if they were content to rely on the grounds of appeal for which they had been given permission, they had no obligation to file a skeleton argument and would in due course be informed of a hearing date. Unfortunately, however, he was not supplied with the second page of the directions containing paragraph 4 which the Secretary of State submits corrects any ambiguity in paragraph 1 and should have left the solicitors in no doubt that if they wanted to be sure of an oral hearing then they needed to file submissions to ask for one.
17. As to the first ground of appeal, Mr Turner, who now appears for the appellants, was faced with what amounts (if correct) to a preliminary objection by the Secretary of State which goes to jurisdiction. In her skeleton argument, Ms Clement takes the point that no appeal lies to the Court of Appeal from a decision of the Upper Tribunal under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 ("the Rules 2008"). Rule 5(1) entitles the Upper Tribunal to regulate its own procedure and (rule 5(2)) to give directions in relation to the conduct or disposal of proceedings. Rule 5(3)(g) contains the power for the Upper Tribunal to "decide the form of any hearing" and rule 34 states that:

"(1) Subject to paragraph (2), the Upper Tribunal may make any decision without a hearing.

(2) The Upper Tribunal must have regard to any view expressed by a party when deciding whether to hold a hearing to consider any matter, and the form of any such hearing."

18. Directions and procedural decisions made under these rules are not immune from challenge by the parties. Under rule 6(4) the Upper Tribunal must send written notice of any directions to the persons affected who have the right on notice to apply to vary or set the directions aside. Rule 43 provides that the Upper Tribunal may set aside a decision which disposes of proceedings and re-make the decision if it is in the interests of justice to do so and there has been some procedural irregularity in the proceedings: see rule 43(2). But a right of appeal to the Court of Appeal is governed by s.13 of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act") which grants a right of appeal on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision: see s.13(1).
19. An excluded decision is defined by s.13(8) as any decision of a description specified in an order made by the Lord Chancellor. The Appeals (Excluded Decisions) Order 2009: SI 2009/175 specifies as excluded decisions in Article 3(m):

"any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981, section 82, 83 or 83A of the Nationality Immigration and Asylum Act 2002, or regulation 26 of the Immigration (European Economic Area) Regulations 2006."

20. Ms Clement now accepts, however, that because Judge Kekić included his decision to dispense with an oral hearing as part of a single determination of the substantive appeal, we should not treat his decision as excluded but as part of a composite appeal decision made under s.12 of the 2007 Act. I am content to proceed on that basis without deciding whether this concession was rightly made. I can therefore turn to the first ground of appeal which is that the decision not to hold an oral hearing amounted in itself to an error of law.
21. There is, of course, an air of unreality about this point in that the other grounds of appeal remain in this court essentially the same as they were in the Upper Tribunal and have as their focus the initial decision of the Secretary of State. Since we have heard full argument on those points as part of this appeal, one might well ask how it can be said that the lack of an oral hearing of the appeal below has resulted in any prejudice at all to the appellants. Mr Turner's response to this was that the appellants have missed out on a stage in the appeal process and that if an error of law by the Upper Tribunal has deprived them of a fair hearing then the matter should be remitted to the Tribunal for re-hearing rather than being decided here. That position has some procedural logic in its favour but not much else. I propose, however, to consider the first ground of appeal on its merits.
22. Permission was granted for what is a second appeal on the basis that the appellants, through their solicitors, could have been misled by the terms of paragraph 1 of the directions and Mr Turner submits that even with the benefit of paragraph 4 the directions made it clear that the Upper Tribunal retained a discretion as to whether or not to hold an oral hearing so that it was not unreasonable for the appellants' advisors to assume that they would in due course receive notice of that hearing and cannot be blamed for having made that assumption. So far as it goes, that submission is correct but it was, I think, clear from the totality of the directions given that, absent any skeleton argument or further material requesting an oral hearing, the Tribunal would make its decision as to whether to hold such a hearing on the basis that it was already in possession of everything which the appellants wished to rely upon in support of their appeal. It follows that there was no error of law merely because the directions may have misled the appellants as to what was required before a decision as to the form of hearing was made. The evidence in this Court also demonstrates that the solicitors relied on Counsel and there is nothing to show that Counsel was in any way misled by the form of the directions. To succeed on ground 1 the appellants must therefore demonstrate that the decision taken by Judge Kekić to determine the appeal without an oral hearing lay outside the legitimate bounds of her discretion.
23. I accept Mr Turner's submission that in exercising the power under rule 34, the judge had to have regard to the overriding objective (set out in rule 2) of dealing with the case fairly and justly. She is criticised for apparently basing her decision on the absence of any response by the appellants to the directions. The importance of an oral hearing should not be underestimated, Mr Turner submits. They often can and do significantly alter the prospects of success.
24. Mr Turner also criticises the directions themselves. They had the effect, he says, of importing a test based on necessity as to whether there should be an oral hearing when the discretion, properly understood, is a much more open one based on the overriding objective.
25. Ms Clement argues that rule 34 confers a broad discretion on the Tribunal but the judge was entitled to take into account the fact that the parties had received directions inviting them to file further submissions, if they wished, within certain time limits and notifying them specifically that in making a decision under rule 34 about the form of hearing the Tribunal would take those submissions into account. Direction 4(b) makes clear that the consequences of not filing any further submissions would be that the Tribunal might assume that the parties did not wish to say anything more than was contained in their existing documents: not that a failure to provide submissions would be treated as an assumption that there was no need for an oral hearing.
26. There is nothing in my view to suggest that the judge adopted a necessity test and the only issue is whether her decision to proceed without an oral hearing was clearly wrong. Given that no further evidence was to be relied on and that the appeal against the First-tier Tribunal decision was limited to Judge Phillips's conclusions as to whether the facts found established a family life here under Article 8, I think that the judge was therefore entitled to conclude that she could fairly dispose of the appeal without the need for oral argument. The ground of appeal based on Imoh turned simply on an interpretation of the judgment below which, again, was adequately dealt with in the written material. Ultimately, however, the practical consequences of being denied an oral hearing can be determined in this case by our conclusions on the remaining grounds of appeal.
27. Mr Turner says that the decision of the Upper Tribunal is unsafe because that of the First-tier Tribunal was fundamentally flawed. Judge Phillips was wrong, he says, to rely on Imoh in relation to whether there was established family life between the appellants and the grandparents in the UK and that in making that assessment she had not properly considered the best interests of the child or the potential rights of other settled family members.
28. The point based on Imoh has no substance for the reasons which Judge Kekić gave. The reference to Imoh in paragraph 56 is a reference back not to the issue of family life with the grandparents and extended family in the UK (which is dealt with in paragraphs 54-55) but to the findings of fact in paragraphs 52 and 53 in relation to the father and the mother's evidence that, if successful, she and the daughter wished to re-establish family life here with the father. There is no error of law in the First-tier Tribunal decision on this point.
29. In relation to Article 8 more generally, I am unconvinced that any of the points taken amount to anything more than a criticism of Judge Phillips' findings of fact. She has applied the law as set out in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31; taken account of the relationship between the appellants including the daughter and her grandparents and extended family; and given extensive consideration to the best interests of the daughter in relation to her private life and the impact which moving to South Africa or the Ivory Coast will have upon her. Although, as the decision in ZH (Tanzania) [2011] UKSC 4 reminds us, those interests have to be treated as paramount, judges are not required to elevate the disruption and inconvenience which inevitably flows from a move abroad to a breach of the child's Article 8 rights. In this case, as the Secretary of State recognised, mother and daughter obviously have an established family life together which will continue to subsist following removal. On the evidence, their future will consist of family life together with the father in a home already occupied by him on the Ivory Coast. I can see no basis on which the re-unification of this family abroad can be said to contravene their convention rights and there is nothing in the judgment of the First-tier Tribunal on this point which amounts to an arguable error of law.
30. I would therefore dismiss this appeal.

Lord Justice Briggs :

31. I agree.

Lord Justice Leveson :

32. I also agree