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)

		Royal Courts of Justice Strand London, WC2A 2LL
		20 October 2015

1. LORD JUSTICE BURNETT: This is a renewed application for permission to appeal against the dismissal of the appeals of this Appellant family by the Upper Tribunal (Immigration and Asylum Chamber).
2. The Appellants are a family of four, all Bangladeshi nationals. FY came to the United Kingdom on a student visa on 1 June 2006. Her husband, MJ, joined her on 21 February 2007. In the meantime, the third Appellant, AJ, had been born on 18 August 2006. The fourth Appellant, FJ, was born on 16 February 2011. As is apparent, both children were born in the United Kingdom.
3. From time to time the first Appellant sought and was granted extensions of her leave to remain as a student. That leave eventually was to expire on 12 October 2013. The right to remain in the United Kingdom of the other three was at all times derivative of her leave, although as I understand it her husband had his own leave at least towards the end of the period.
4. On 9 October 2013, so in time, the First Appellant made an application for leave to remain in the United Kingdom on the basis of her family and private life. Her husband and son, A, did likewise. All the applications were founded upon the fact that A had been in the United Kingdom for 7 years. It was said that he should not be required to return to Bangladesh. If he was not to be returned, then the argument was that the rest of the family would have to remain in the United Kingdom in order to avoid violating collectively their Article 8 rights.
5. A's application and appeal before the Tribunals was pursued under paragraph 276ADE of the Immigration Rules with the parents relying upon various parts of Appendix FM, described as the "parent route". FJ's case needs no separate consideration.
6. Those applications were refused by the Home Office. In A's case, the Home Office accepted that he had been here for more than 7 years, but concluded that it was "reasonable" for him to return with the whole family to Bangladesh. Those two factors reflect the rules and in particular paragraph 276ADE(iv). The other applications failed in line behind his application.
7. The Home Office considered Article 8 of the European Convention on Human Rights outside the Rules, but concluded that there were no exceptional circumstances which would enable Article 8 to be used to keep the family in the United Kingdom.
8. All four appealed to the First-tier Tribunal. In a determination promulgated on 28 August 2014 First-tier Tribunal Judge Moore allowed the appeals on human rights grounds, but appears not to have done so under the Rules. The Home Office was granted permission to appeal essentially on the basis that the treatment by the First-tier Tribunal Judge of the Rules and the separate Article 8 consideration was confused.
9. In a decision promulgated on 7 October 2014 Deputy Upper Tribunal Judge Chana allowed the appeal. She concluded that the First-tier Tribunal Judge had failed to consider properly that the Rules ordinarily reflect the balance to be struck for Article 8 purposes and also that he had failed to approach the Article 8 question outside the Rules in the correct manner.
10. For that reason, the judge set aside the decision and then proceeded to remake the decision. She concluded that it would be reasonable to expect A to go to Bangladesh with the rest of his family. Additionally, she concluded that a separate consideration of Article 8 did not compel the outcome that the whole family should be allowed indefinitely to reside in the United Kingdom.
11. Permission to appeal to the Court of Appeal was first refused by Upper Tribunal Judge McGeachy on 16 December 2014:

"Reasons for decision: the grounds of appeal assert that the deputy UT Judge should not have found that there was an error of law in the determination of the Judge of the First-tier Tribunal and that she should have [sic] that it was not reasonable to expect the child of the family to leave the country as he had lived here for more than 7 years. They also assert that the deputy Judge was wrong to consider that the fact that the principal appellant and her husband has a precarious immigration situation here was a relevant fact that should be taken into account.

There is no merit in the grounds of appeal. The deputy Judge was correct to set aside the decision of the Judge of the First-tier Tribunal on the basis that he had not properly considered the relevant rule and the fact that the family would be returning to Bangladesh together. Moreover, she applied relevant case law and was correct to place weight on the fact that the appellants were never entitled to indefinite leave to remain or should have had any expectation of such given that they had come to Britain as a student and her dependents. In remaking the decision the Judge applied relevant legal principles and her conclusions were entirely open to her.

There is no error of law in the determination and there is no point of practice or principle which would make it appropriate to grant permission to appeal."

12. The application was then pursued to the Court of Appeal. In carefully crafted grounds, supported by a detailed skeleton argument, Mr Yeo advanced a number of grounds.
13. Ground 1 asserts that the First-tier Tribunal made no error of law and also that the Upper Tribunal was wrong to consider that the underlying application was made outside the Rules. I pause there to say that it is a consistent refrain in the submissions advanced that this was an application made squarely within the Rules and the Upper Tribunal was wrong to conclude that it was reasonable for A to go to Bangladesh.
14. As to ground 1, Underhill LJ in refusing permission on the papers said this:

"(1) The case that it was reasonable to expect A to leave the UK notwithstanding that he had lived here for 7 years was strong for all the reasons given by the UTJ - including his young age which meant that the ties he would have formed outside the family were likely to be weaker than if he were, say, a teenager. The absence of any substantial prejudice in his having to return to Bangladesh and the fact that he would be returning there with his parents who had no legitimate expectation of remaining here. The UTJ did not go so far as to say that the decision of the FTTJ was perverse, but in my view she was right to hold that, given the strength of the case, return would be reasonable for the reasoning that the FTTJ gave was required. It is also fair to say that the discussion by the FTTJ is confused and does not inspire confidence in his approach. Indeed, if paragraph 26 stood alone it would be a plain misdirection since it ignores the second limb under paragraph 276ADE(1)(iv). That error appears to be corrected by the third section under paragraph 30, though the intervening discussion of Article 8 is puzzling, as is his description of A's appeal being allowed on "human rights grounds".

(2) I do not understand paragraph 2. The UTJ was plainly correct to consider in the case of A first whether he was entitled to leave under the Rules and only if the answer was no to proceed to consider whether refusal would nevertheless constitute a breach of his rights under Article 8. Though in a case where his removal has been found to be reasonable, it is not in fact clear what room there would be for a finding of disproportionateness. The correct approach has been well-established for some time, but it is now clearly summarised in SS (Congo)."

15. In his arguments this morning, Mr Yeo focussed upon the Rules and recognised that if A was unable to satisfy the rule, the reality of this case is that there could be no independent or separate Article 8 right.
16. Ground 2 asserts that the judge was wrong to consider the case outside the Rules; in other words, an echo of one of the points already dealt with. The application was made under the Rules.
17. In particular, ground 2 presses the point that it is said that the Upper Tribunal Judge failed to appreciate that after the passage of 7 years in the United Kingdom the Home Office policy suggested that the "key test" had been met. Put more generally, the ground raises the argument that having satisfied the key test, the starting point should be that leave to remain should be granted.
18. As to that, Underhill LJ said:

"I do not agree that it is arguable that the Upper Tribunal Judge was obliged to exclude from her consideration of the reasonableness of A having to go back to Bangladesh the fact that his parents never had any legitimate expectation of being entitled to remain in the UK. To take that into account does not involve importing an exceptional circumstances test. The UTJ may arguably have overstated the position in paragraph 15 of her determination, but she did not do so in the dispositive reasoning at paragraphs 36 and 37. It is well recognised that 7 years' residence inherently carry less weight the younger the child: see Azimi-Moayed [2013] UKUT 197."

19. The learned Lord Justice then dealt with a separate point advanced on behalf of the Appellants, namely that the Deputy Upper Tribunal Judge had misunderstood what the word "precarious" means, but observed that she had explained that the limit of the point was that the First Appellant was here on a student visa and so had no expectation of being able to live permanently in the United Kingdom.
20. He concluded:

"For these reasons, I do not believe that the proposed appeal has a realistic prospect of success. It is unnecessary to consider whether if it did the second appeals test would be satisfied. I would only observe insofar as reliance is placed on the second limb of the test that I cannot see a compelling case against requiring a family from Bangladesh to return there when their right to be in the UK has only ever been dependent on a student visa which gave no legitimate expectation of leave to remain in the longer term and when returned would involve no substantial hardship for the children."

21. Mr Yeo has pressed these grounds this morning. He reiterates that the application was made within the Rules. He submits that the word "reasonable" in 276ADE(1)(iv) when considered in conjunction with the proposed return to Bangladesh at least sits very uneasily with the Home Office key test approach based upon 7 years. He recognises that all the documents which deal with the key test speak of countervailing factors, but he submits that those should be concerned with matters such as criminality on the part of the child himself or deception on the part of the wider family.
22. He also submits that the meaning of the word "reasonable" has not been subjected to analysis in this court for the purposes of that rule. He reiterates that the use of the word "precarious" in this context is also something which should be considered by the Court of Appeal. In particular, he submits that whatever precarious means, it could not properly be applied to the position of the immigration status of A's parents. I note that the word precarious derives from Strasbourg jurisprudence on Article 8 and now is found in primary legislation in this country.
23. Despite the careful arguments advanced by Mr Yeo, like both Underhill LJ and Upper Tribunal Judge McGeachy, I am unable to agree that there is a point that should be argued in this case.
24. The circumstances of the Appellants are relatively commonplace. As a result of the successive grants of leave to remain as a student, they have been lawfully in the United Kingdom since 2006. A was born here not long after the First Appellant's arrival and so unquestionably at the time of the application satisfied the 7-year test.
25. The reference to it being a key test seems to me to be no more than a statement that that is the starting point for consideration whether a child will be able to remain in the United Kingdom.
26. This is what might be regarded as a classic bootstraps application which depends entirely upon the position of A.
27. I do not accept that there is any mystery about the meaning of the word reasonable in this rule any more than in other rules and legislation. It is extremely difficult to see why it should be unreasonable for A to travel with his family to Bangladesh in circumstances where the parents had no expectation of remaining here. Mr Yeo was candid in recognising that the circumstances are not in any way unusual.
28. The use of the word precarious in this case, as Underhill LJ observed in the course of his reasons, was explained by the Deputy Upper Tribunal Judge as meaning no more than that the family was here on successive grants of limited leave which carried with it no expectation of permanent residence.
29. In those circumstances, I conclude that there is no arguable basis for demonstrating that the conclusion of Deputy Upper Tribunal Judge Chana under the Rules was wrong. As I have already indicated, it is accepted that there could be no separate Article 8 claim with any prospect of success. For these reasons, this renewed application is refused.