England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (Immigration & Asylum)
Upper Tribunal Judge Freeman
IA33604/2014

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 March 2017

Lord Justice Elias:

1. This is an appeal by the Secretary of State against the decision of the Upper Tribunal ("UT") in which UT Judge Freeman overturned a decision of the First Tier Tribunal ("FTT") and granted the five respondents, (whom I shall call the applicants although they are the respondents to this appeal), leave to remain in the UK. The judge gave permission to appeal.

Preliminary point

2. A preliminary issue which arises is whether the Secretary of State should be allowed to pursue the appeal at all. The basis for contending that she should not is that although the UT judge gave permission to appeal, the Secretary of State lodged her appeal five days out of time, having been misled by an out of date commentary in the White Book. She ought to have lodged it within 28 days of the permission decision being sent but erroneously thought that it was within 28 days of it being received, even though it was accepted at the hearing the two dates were the same. The result was that it was five days, and three working days, late. The Secretary of State requires an extension of time for the appeal to be valid. The applicants submit that time should not be extended.
3. We have considered the relevant authorities including Mitchell v News Group Newspapers Ltd. [2013] EWCA Civ 1537; [2014] 1 WLR 795; Denton v TH White Ltd. [2014] EWCA Civ 906; [2014]2 WLR 3926 R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 WLR 2472. These cases require the court to consider the following factors in three stages: first, the seriousness and significance of the failure to comply; second, the reasons for that failure; and third, to evaluate all the circumstances of the case in order to deal justly with the application. As the court pointed out in Hysaj, para.42, there is no special rule for public authorities and no special leniency is shown to public bodies.
4. I have no doubt that the court ought to extend time in the particular circumstances. The breach is relatively minor; I would not describe it as trivial, but it is not very significant. Second, although there is no excuse for failing to comply with the rule, and it was not suggested that reliance on an outdated text provided one, the explanation does at least show that this was not a cavalier disregard of the provisions. Third, when taken in the context of a relatively minor breach, the circumstances in my view make it just to allow the extension of time. There is no prejudice to the applicants in terms of their ability to respond to the appeal; and the case raised a point of real importance in public law. In so far as it is said that this consideration is undermined by the fact that MA (Pakistan) v Upper Tribunal [2016] EWCA Civ 705 has since been determined and has for the time being resolved the issues raised in the appeal, it has done so in a way which makes it plain that the merits of the first ground of appeal at least are very strong indeed, and that is a factor in favour of granting the extension.

The substantive appeal

5. The five applicants are all members of one family. The first two are husband and wife respectively. The other three are their children. The fifth and third are two teenage sons aged 16 (DOB 1 July 1999) and 13 (DOB 21 October 2001) respectively at the relevant time; and the fourth was a 4 year old (DOB 13 June 2011). They are all citizens of Pakistan. The father first came to the UK as a visitor with entry clearance valid from June 2004 to June 2009. The mother and two older children came as short-term visitors a year later in June 2005. The family remained illegally in the UK after the expiry of their visas.
6. During the course of 2010, the father made two applications for indefinite leave to remain on human rights grounds, listing his family members as dependents. The appellant rejected both. On 28 September 2012 the father applied again. This was refused on 27 September 2013 with no right of appeal. There was an application for judicial review which was settled on the basis that the Secretary of State would reconsider the matter and make a decision which carried an in-country right of appeal. The refusal was maintained on reconsideration on the grounds that the applicants did not qualify under the rules and there were no exceptional features which would justify the grant of leave under article 8. They appealed against that decision as they were entitled to do.

The legislation

7. The relevant statutory provisions are found in section 117B of the Nationality, Immigration and Asylum Act 2002. This is found in part 5A of the Act as inserted by the Immigration Act 2014. Section 117B sets out a number of public interest considerations applicable to article 8 cases. Subsection (1) states that "the maintenance of effective immigration control is in the public interest." Subsections (2) and (3) provide that it is in the public interest for applicants to be able to speak English and to be financially independent. Subsections (4) and (5) say that in any article 8 balancing exercise little weight should be given to a private life or to a relationship formed with a qualifying partner when the person is unlawfully in the UK or their status is otherwise precarious. Subsection (6) is critical to this appeal. It provides as follows:

"In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom."

8. A qualifying child is then defined in s 117D as a child under 18 who is either a British citizen or "has lived in the UK for a continuous period of seven years or more" ("the seven year rule").
9. Paragraph 276ADE(1) of the Immigration Rules sets out requirements to be met by applicants for leave to remain on the grounds of private life. Subsection (iv) reflects the effect of section 117B(6). It is as follows:

"The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(iv) is under the age of 18 years and has lived continuously in the UK for at least seven years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK."

10. It was accepted that the two teenage children were qualifying children who satisfied the seven year rule, and that the parents had a genuine and subsisting parental relationship with them.

The decision of the FTT

11. The family's appeal against that decision of the Secretary of State refusing leave came before FTT Judge Kelly who gave a judgment dismissing the appeal on 20 August 2015. The argument at the hearing centred on the two older children. FTJ Kelly accepted that focusing on the children was the only viable strategy since, as counsel for the applicants – (not Mr Chelvan or Ms Jagadesham), had conceded, "the appeals of the First and Second Appellants would be most unlikely to succeed in view of their poor immigration history" (para.24).
12. The question to be resolved was whether or not paragraph 276ADE(1)(iv) of the Immigration Rules applied to these two children and, in particular, whether it would not be reasonable to expect these children to leave the UK. As the judge recognised, she was required by section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the best interests of the children. She observed that she attached significant weight to the time they had lived in the UK and she recognised that this would carry increased weight the more advanced or critical the stage of their education.
13. The judge considered that it was indeed in the best interests of the children to remain in the UK "but not overwhelmingly so" and she gave detailed reasons for that conclusion. Essentially she accepted that they were settled in their schools, had developed sporting and other interests, were benefiting from an English education and had developed close friendships which they did not want to lose and whose loss would cause them some emotional distress. At the same time she was satisfied that they would settle in Pakistan and would be able to pursue their sporting interests and further education there, where English continues to be the official language. She did not think that the distress from losing friends would be long-lasting or irreversible, and they would be returning to an extended family in Pakistan. Returning to Pakistan would not adversely affect their health or frustrate their long-term ambitions.
14. Notwithstanding that the children's best interests were to remain in the UK, the judge held that they should be refused leave to remain which necessarily meant that the other three applicants' cases had to fail also. The reason was that their parents had shown a blatant disregard to the immigration law, choosing to remain illegally on the expiry of their visas. They did not seek to regularize their status for many years, and even when they did, they remained illegally in the country after their applications had been refused.
15. In reaching her conclusion the judge followed guidance given by the Court of Appeal in EV (Phillipines) and others v Secretary of State for the Home Department [2014] EWCA Civ 874 as to how the balancing exercise should be carried out. The judge summarized her conclusions as follows:

"41. Against this background, I attach very significant weight to the legitimate interest of the respondent in maintaining effective immigration control. I have regard to the public interest factors set out in Section 117B of the Nationality, Immigration and Asylum Act 2002 and to the fact that little weight should be attached to a private life that is developed in this country when a person is here illegally or when their immigration status is precarious.

42. When considering where the balance lies between the best interests of the children on the one hand, and the importance of maintaining immigration control on the other, I am mindful of the fact that the children should not be punished for the actions of their parents. But I am entitled to take into account the fact that they are not British Citizen children and are not entitled as of right to benefit from the education system and other public services of this country.

43. Having considered all of the evidence carefully and in the round I have come to the conclusion that it is reasonable for the purposes of paragraph 276ADE(iv) to require the Third and Fifth Appellants to leave the United Kingdom. Whilst it will inevitably cause them some distress and hardship, I am not persuaded that this will be sufficiently grave to outweigh the wider interests of maintaining immigration control. They will be returning as a family unit to a place where they have a large extended family to assist them as they seek to re-establish themselves there. The First Appellant said in his oral evidence that his mother lives in Karachi, as do two of his brothers and their families. He also said that the Second Appellant has two brothers and four sisters living in Karachi together with their spouses and children. They are therefore likely to have assistance in securing appropriate accommodation and making other arrangements for their return. The First and Second Appellants are both well-educated and undertook employed work in Pakistan before coming to this country. There is no reason why they should not obtain suitable employment on their return so as to be able to continue to support their family."

The decision of UT Judge Freeman

16. UT Judge Freeman observed that the only issue before the FTT judge was whether it would be reasonable to expect either of the two older children to leave the UK. In concluding that it would, FTT Judge Kelly had assumed that the court could have regard to the range of public interest considerations in section 117B. However, since the decision of the FTT, the UT had decided in Treebhawan and others [2015] UKUT 674 that where the conditions in section 117B(6) were satisfied, these prevailed over the public interests identified in section 117B (1) to (3). Accordingly, the judge concluded that section 117B(6) was a self-contained provision and so the FTT could only have had regard to the wider public interest in effective immigration control if this was part of the reasonableness test which section 117B(6) itself mandates. Did the application of that test permit the court to have regard to the wider public interest in immigration control or could the court only focus on the position of the children themselves?
17. UT Judge Freeman accepted that if wider public interest considerations were in play, FTT Judge Kelly was clearly entitled to decide against the applicants on the merits. It was, he said, "an exceptionally clear and well thought out decision." Conversely, if the focus had to be on the children alone, it was equally clear that the applications of the two older children would succeed and the other members of the family would effectively piggy back on their success, as the Secretary of State accepts.
18. UT Judge Freeman was satisfied that when properly construed, section 117B(6) and paragraph 276ADE(1)(iv) required the court to ask whether it was reasonable or not only from the point of view of the qualifying child. On that analysis, the appeals of the two teenage boys had to succeed in the light of the findings of the FTT judge.

The appeal to the Court of Appeal

19. There were two grounds of appeal. First, it was said that the UT erred in assessing the question of reasonableness by focusing solely on the position of the child. The FTT had adopted the correct approach in looking at wider public interest considerations. Second, the UT was wrong to treat section 117B(6) as a self-contained provision to be read independently of the other matters identified in that section. The considerations in section 117B(6) ought to have been treated as just one relevant factor when considering whether an interference with article 8 was justified. Properly construed, it did not take priority over the public interests considerations. In effect, this was challenging the Treebhawan ruling.
20. After the appeal was lodged, these two grounds were considered by this court in MA (Pakistan) where I gave the leading judgment with which King LJ and Sir Stephen Richards agreed. The court's analysis is consistent with the first ground of appeal succeeding, but the second failing. The court, admittedly reluctantly, concluded that it was inherent in the reasonableness test in section 117B(6) that the court should have regard to wider public interest considerations and in particular the need for effective immigration control. The Court would not have reached that conclusion absent authority, but felt obliged to follow another decision of the Court of Appeal in MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617; [2016] IMM A R 954. That was a case concerning foreign criminals which engaged section 117C rather than 117B, and in particular to the need in section 117C(5) to show that it would be "unduly harsh" rather than simply not unreasonable, to require the qualifying child to leave the UK. However the court in MA (Pakistan) considered that the structure of the relevant provisions was sufficiently similar to require a common approach. Accordingly, since the Court in MM (Uganda) had held that wider public interest considerations relating to effective immigration control could be taken into account when deciding whether or not it was unduly harsh to send an applicant back to the country of origin, so likewise should they be taken into account when considering under section 117B whether it is not unreasonable to do so. But the court also held that section 117B(6) was a self-contained provision in the sense that where the conditions specified in the subsection are satisfied, the public interest will not justify removal. The wider public interests considerations can only come into play via the concept of reasonableness in section 117B(6) itself. In the light of this decision, the Secretary of State no longer pursues the second ground of appeal.

Is the Court bound by MA (Pakistan)?

21. Mr Chelvan, counsel for the applicants, advanced an argument relatively late in the day to the effect that we are not bound by the decision in MA (Pakistan). As the argument developed, it became clear that the essence of it was that although that judgment was binding on the court so far as the proper construction of section 117B(6) is concerned, it was not a binding decision as to the construction and application of the reasonableness rule in paragraph 276ADE (1)(iv).
22. It is true that in MA (Pakistan) the court noted at paragraph 13 that it had simply been a common assumption that the construction of the rule should reflect the construction of the primary legislation. But in fact two of the appellants in that case were relying solely on paragraph 276ADE and so the decision as to its proper meaning is binding on us. In any event, the logic of the argument is that the criteria in the rule would be easier to satisfy than the criteria in the section passed by Parliament, notwithstanding the use of the same concept. I do not accept that the draftsman could possibly have intended such a result which would give the public interest a more limited influence than Parliament has required. In my judgment, on the assumption that the construction of section 117B(6) adopted in MA (Pakistan) is correct, it must apply likewise to rule 276ADE.
23. Since in my view we are bound by the decision in MA (Pakistan) as to the proper construction of the provisions in issue, it necessarily follows that the decision of the UT cannot stand.

Should the case be remitted?

24. The question is what follows from that? The Secretary of State submits that we ought to restore the decision of the FTT, not least because UT Judge Freeman himself observed that if the FTT had been entitled to take account of wider considerations, it was clearly entitled to conclude against the applicants on the merits.
25. The applicants dispute this. They have advanced a raft of reasons why the decision of the FTT was in any event wrong, even accepting that it was entitled to have regard to the immigration history of the parents. Some of these matters were not even advanced before the UT and it is too late to raise them now. I am not going to engage with them in any detail. In substance the applicants have simply identified features of the case which they submit should have weighed either more or less heavily with the FTT. As Mr Chelvan properly conceded, it is in essence a rationality challenge that no judge properly considering the matter could have concluded that it would not be unreasonable to require the children to go back to Pakistan. It is submitted that if the FTT had struck a fair balance between the interests of the children and the wider public interest in immigration control, it must inexorably have led to the conclusion that leave to remain should be granted.
26. I reject that submission. It is true, as the respondents emphasise, that in MA (Pakistan) the court observed that significant weight should be given to the fact that a child has been here for seven years, but the FTT in terms recognised that fact. The FTT judge also recognised that "greater significance is likely to be attached to time spent in this country by a child when they are of school age and therefore developing ties and attachments outside the immediate family unit".
27. In my judgment, there was no material error by the FTT judge and she reached a conclusion well open to her on the evidence. I recognise that the FTT judge had regard to the other public interest considerations specified in section 117B which, in view of MA (Pakistan), she was not entitled to do. But she could legitimately have regard to the matters she considered in the context of applying the reasonableness test. Mr Chelvan submitted that the original grounds of appeal to the UT had envisaged a challenge to the conclusions of the FTT judge, even assuming that the interests of effective immigration control could be taken into account, and that counsel before the UT had never had the opportunity to advance those grounds because the UT had found in his favour on his alternative ground that the focus should be on the children alone. But in substance the UT did engage with this issue and found nothing wrong with the decision of the FTT on the assumption that wider public interest considerations were engaged. In my judgment there is no realistic prospect of the UT on any reconsideration coming to a different conclusion
28. I would therefore uphold the appeal and restore the decision of the FTT.

Lord Justice Lewison:

29. I agree.

Lord Justice Floyd:

30. I also agree.