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
		15/12/2017

Lord Justice Flaux:

Introduction

1. The appellants appeal with the permission of Vos LJ, granted at an oral renewal hearing on 10 March 2016, against the decision of the Upper Tribunal promulgated on 4 February 2015 dismissing their appeal against the decision of the Secretary of State to refuse the first appellant indefinite leave to remain.

Factual background and Tribunal decisions

2. The first appellant is a national of Mauritius, born on 13 July 1965. She left Mauritius in 1990. After living for some years in Italy, she came to the United Kingdom on 26 October 2005 as a visitor with the second appellant, her husband (also a Mauritian national and the same age as her) and with their son (born in Italy on 21 November 1995 and the third appellant before the First-tier Tribunal) as her dependants. The first appellant was granted a student visa which was extended twice until it was curtailed to expire on 2 September 2013, after the college where she was studying had its licence revoked. On 18 April 2013, the first appellant applied for indefinite leave to remain with her husband and son as dependants. By letter dated 8 November 2013, the Secretary of State refused her application.
3. The appellants appealed that refusal to the First-tier Tribunal ("FTT"), which allowed the appeal by a Determination promulgated on 13 May 2014. The basis upon which the appeal was allowed was paragraph EX.1 of Appendix FM of the Immigration Rules. The FTT judge found at [50] of her determination that all the members of the appellant's family had permanent status in Italy, that the first appellant and her husband were fluent in Italian and that, if required to leave the United Kingdom, they would go to Italy rather than return to Mauritius. She accepted at [63] the appellant's evidence that her son had attended a private school in Italy where he was taught in English, had attended private and secondary schools in the United Kingdom and was now studying for his A-levels. He had been made a conditional offer by Loughborough University to study aeronautical engineering. The FTT judge accepted at [64] that the son did not speak Italian. She placed particular weight at [65] on the fact that he had lived in the United Kingdom for eight years, benefited from education here and built up strong school links and friendships and an extended social life. He continued to live with his parents and was supported by them financially. Without continued financial support, he could not go to university.
4. The FTT judge considered at [66] that the Secretary of State had failed to safeguard and promote the son's welfare as a child. Indeed, it was accepted by counsel then representing the Secretary of State that she had not considered the best interests of the child under section 55 of the Borders, Citizenship and Immigration Act 2009 properly in refusing the appellant's application. At [68] of her Determination, the FTT judge concluded:

"In all the circumstances of this case I conclude that it would not be reasonable to expect the child to leave the United Kingdom and therefore that the appellant meets the requirements of paragraph EX.1 of Appendix FM of the Immigration Rules."

5. The Secretary of State sought leave to appeal to the Upper Tribunal on the grounds that the FTT judge had given inadequate reasons as to why the son could not continue his education in Italy and that also her findings in relation to paragraph EX.1 related exclusively to the son. Permission to appeal on those grounds was granted by another FTT judge.
6. The appeal was heard by Deputy Upper Tribunal Judge Baird on 9 September 2014. In a Decision promulgated on 19 September 2014, she found that there had been a material error of law by the FTT judge. Her reasons were given at [12] of the Decision:

"12. It seems to me that there is a material error of law in the determination of the First-tier Tribunal Judge firstly because she has applied EX.1 without giving adequate reasons for having done this. It is also the case that despite the fact that the removal directions were to Mauritius she did not consider return to Mauritius but only return to Italy. It seems to me too that if return to Italy was the issue, the appeal arguably should not have succeeded because it is difficult to see how it can be unreasonable for the Third Appellant to return to Italy, especially at this stage of his education where he has just completed secondary education and is about to embark on a degree at Loughborough University. As Mr Kandola [Senior Home Office Presenting Officer] said there is an avenue for him to apply to come here as a student. His parents would still be paying the fees which is what they would be doing if he were remaining here."

7. At [13] the UT judge recorded the discussion about how the hearing should proceed:

"13. There was some discussion about how this hearing should proceed. Mr Gokhool [solicitor for the appellants] said that he had no further evidence to submit other than that requested by me on the current state of the right or otherwise of the Appellants to be in Italy. It was agreed that written submissions would be provided by 30^th September 2014 at which point I would determine the appeal."

8. The UT judge then recorded her decision finding a material error of law in the determination of the FTT and setting aside that decision with no preserved findings of fact. Following a further hearing on 11 December 2014, the UT judge re-made the decision in a Decision and Reasons promulgated on 4 February 2015. She recorded that, since the previous hearing, the appellant's son had been granted Italian citizenship so his appeal had been withdrawn. The UT judge set out the facts, essentially reflecting the primary findings made by the FTT judge and recording that the first appellant had two brothers living in Italy and a married sister living in Mauritius. She also said that both the first and second appellants were working, had not been in receipt of public funds and did not have a criminal record.
9. The UT judge dealt first with whether the appellants could succeed under Paragraph 276ADE of the Immigration Rules. She held that they could not, except possibly under sub-paragraph (vi) which at the time that the decision of the Secretary of State had been made had provided:

"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:

 (vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural and family) with the country to which he would have to go if required to leave the UK."

10. At [12] of her Reasons, the UT judge referred to the decision of the Upper Tribunal (Blake J and UTJ O'Connor) in Ogundimu v SSHD [2013] UKUT 60 (IAC); [2014] Imm AR 422 where the meaning of the word "ties", as also used in Paragraph 399A of the Immigration Rules, was considered. The UT judge cited a passage from [123] and [124] of the Determination of the Upper Tribunal in that case:

"123.    The natural and ordinary meaning of the word 'ties' imports, we think, a concept involving something more than merely remote and abstract links to the country of proposed deportation or removal. It involves there being a continued connection to life in that country;

124… Consideration of whether a person has 'no ties' to such country must involve a rounded assessment of all the relevant circumstances and is not to be limited to 'social, cultural and family' circumstances."

11. At [13] the UT judge then applied that analysis and approach in considering whether or not the appellants had ties with Mauritius, concluding that they did not meet the criteria in sub-paragraph (vi):

"13. It is 25 years since the Appellants left Mauritius and I accept that there will have been many changes there in that time. I accept that they are now accustomed to European culture. Both Appellants have however worked in the UK and the First Appellant has studied here. They are only 50 years old. I see no reason to suppose that they would not be able to obtain work in Mauritius. The Appellants have each other and the First Appellant has a sister there. Having considered all the evidence in the round I must conclude that they do not meet the criteria set out in Paragraph 276ADE(vi)."

12. The UT judge went on to consider whether the appeal could succeed outside the Immigration Rules on the basis of a breach of Article 8 of the ECHR. She set out the five questions which the House of Lords had said should be asked in R (on the application of Razgar) v SSHD [2004] UKHL 27. She also said she had to take account of section 117B of the Nationality, Immigration and Asylum Act 2002 which she set out. She held at [17] that none of the factors in that section affected the appellants:

"None of the above factors prejudice the Appellant's case. They have not remained in the UK without leave. They have both worked and supported themselves and have not been reliant on public funds. Neither has committed a criminal offence. These factors are not however determinative but factors to be taken into account in assessing proportionality."

13. The UT judge then set out her Article 8 assessment in [18], dismissing the appeal:

"18. I accept that the Appellants have over nine years developed a meaningful private life in the UK and indeed a family life with their son who is now 19 years old and has recently embarked on a degree course at Loughborough University. I take into account that their son is financially dependant (sic) on them. They are meeting the costs of his education but as I have found above, there is no evidence before me to suggest that a couple who have worked throughout the last 25 years will not be able to obtain work in Mauritius. Clearly they left Mauritius to work and make a better life and left Italy for the same reason. Their leave to remain in the UK did however expire. Their son has started a new phase of his life and apart from the financial dependency, I am not satisfied that it has been established that the relationship between the Appellants and their son goes beyond the usual family ties between a young adult at university and his parents. I take into account that their son now has Italian citizenship. I have given weight to the fact that the Appellants have been in Europe for 25 years having lived for many years in Italy. I have found this a difficult decision but must conclude that the removal of the Appellants from the UK will in all the circumstances not be disproportionate to the need for effective immigration control in the UK."

Grounds of appeal and permission

14. The appellants originally sought permission to appeal on two grounds:

(1) That there was no proper basis and/or inadequate reasons were given for finding that the appellants' removal would not be a breach of Article 8. In particular the Upper Tribunal failed to have any proper regard to section 55 of the Borders, Citizenship and Immigration Act 2009 in determining the viability of the entire family relocating to Mauritius.

(2) The Upper Tribunal failed to take a properly measured approach to the critical question of whether the appellants' removal would be proportionate in all the circumstances.

15. Permission was refused initially by UTJ Goldstein essentially on the basis that these grounds were merely disagreement with the Upper Tribunal's findings of fact and there was no error of law.
16. In a skeleton argument filed by Ms Nabila Mallick, now counsel for the appellants, on 30 April 2015, three further grounds were advanced:

(3) That the UT judge had failed to give any reasons why she set aside the FTT judge's lengthy and well-reasoned decision for material error of law.

(4) That the UT judge had construed the word "tie" in paragraph 276ADE (vi) too narrowly.

(5) That the UT judge's decision was a disproportionate interference with the appellants' family life enjoyed with their son which the Upper Tribunal should have held to exist.

17. I should say at once that the third ground is factually incorrect, given that the UT judge had given full reasons for her decision that there was a material error of law in the Determination of the FTT, in her Decision promulgated on 19 September 2014, in particular in [12], which I have quoted above.
18. Permission to appeal was refused on paper by Gloster LJ on 28 July 2015 on the same basis as UTJ Goldstein had refused permission, that the appeal was an attempt to challenge the UT judge's findings and evaluation of the facts and the appellants could not satisfy the second appeals test.
19. The application was then renewed orally before Vos LJ at a hearing on 10 March 2016 when the appellants were represented by Ms Mallick. It is clear from his short judgment that Vos LJ was not satisfied that the appeal raised any important point of principle or practice for the purposes of the second appeals test. However, he concluded that there was a compelling reason why the appeal should be heard:

"12. I have to consider today whether the appellant has shown that the appeal raises either some important point of principle or practice, or there is some other compelling reason why the appeal should be heard. I am not satisfied that the appeal raises an important point of principle or practice. I do, however, have two serious concerns, namely that it does appear that the Upper Tribunal judge failed to give any reasons for having reached the conclusion that the First-tier Tribunal judge had made an error of law. Nor indeed did the Upper Tribunal judge give any reasons for abrogating in their entirety the findings of fact made by the First-tier Tribunal. That was obviously unorthodox and arguably wrong, but does not raise an important point of principle or practice, because it seems to me at least that it would be very hard to argue the contrary.

13 In the circumstances, however, those points do in my opinion give rise to a compelling reason why an appeal in this matter should be heard, particularly bearing in mind that in my judgment it is also at least arguable that the Upper Tribunal judge construed the word "tie" too narrowly, as submitted by Ms Mallick."

20. It is clear from this passage that Vos LJ was under the misapprehension that the UT judge had failed to give any reasons for deciding that there had been a material error of law by the FTT and was unaware of and was not shown the Decision dated 19 September 2014 which set out the reasons for that decision. We raised with Ms Mallick at the hearing before us how it had happened that she had failed to draw Vos LJ's attention to the fact that the UT judge had given reasons, contrary to what she asserted in her skeleton argument and submissions to him. It became clear from her reaction and her submissions that she had not been aware of the Decision dated 19 September 2014 at the time of the oral renewal hearing and, indeed, still did not have a copy of it in her bundle.
21. However, Mr Gokhool, the solicitor with SG Law who instructs Ms Mallick, represented the appellants at both the hearings before the Upper Tribunal. In the circumstances, at the end of the hearing we required Mr Gokhool to write a letter to the Court providing a full explanation of how it came about that Vos LJ was misinformed and was not given a copy of the Decision of the Upper Tribunal dated 19 September 2014.
22. On 7 December 2017, the day after the hearing, we received a lengthy letter from Mr Gokhool. Although that letter is somewhat unsatisfactory because it seeks in places to reargue the appeal, what emerges is that he says that he never received a copy of the Decision of the UT judge dated 19 September 2014 at the time and was unaware of it until recently when he received Mr Mitchell's Replacement Skeleton and the amended index to the bundle prepared by the Government Legal Department. Accordingly, at the time of the hearing before Vos LJ which he also attended, he thought the UT judge had given no reasons for her decision.
23. In the circumstances, although Vos LJ was obviously misled, I am satisfied that this was inadvertent on the part of Ms Mallick and Mr Gokhool. However, despite the submissions of Ms Mallick (and of Mr Gokhool in his letter) I consider that, had Vos LJ known that the UT judge had given a reasoned decision for his conclusion that there had been a material error of law by the FTT and had he seen the Decision dated 19 September 2014, he would not have granted permission to appeal.
24. Nonetheless, irrespective of what happened before Vos LJ we heard the appeal in full and made it clear to Ms Mallick that our concern that Vos LJ had been misled would not in any sense prejudice her clients' position on the appeal.

The parties' submissions

25. In her oral submissions before us, Ms Mallick focused on the argument that, even if the Upper Tribunal did give reasons for its Determination that there was an error of law by the FTT in its application of EX.1 of Appendix FM, it had been wrong to conclude that there was an error of law and had no jurisdiction to interfere with the Determination of the FTT judge and to rehear the appeal. She submitted that the UT judge had been wrong to say that the FTT judge had focused on the position in Italy. The FTT judge had correctly looked at the evidence regarding life for the appellants in Mauritius, since the decision of the Secretary of State under appeal involved removal to Mauritius, not Italy, even if the appellants would in fact go to Italy.
26. Next Ms Mallick submitted that, in her assessment of whether removal to Mauritius was proportionate, the UT judge had failed to consider the position as at the date of the application for indefinite leave to remain or of the decision of the Secretary of State refusing such leave, at which dates the appellant's son was a child under the age of 18. She submitted that the UT judge had ignored the fact that he was a child. This led on to a submission in reply that, in considering paragraph 276ADE (vi), the UT judge had erred in not looking at the position as at the date of the application. Ms Mallick submitted that both the FTT and the Upper Tribunal were required to look at the position as at the date of the application, in the same way as was required of Home Office officials in the Guidance in the Immigration Directorate Instructions. Ms Mallick recognised that where the Court or Tribunal is considering Article 8 claims outside the Immigration Rules, it will look at the factual position as at the date of the hearing, but submitted that in relation to claims under the Rules, the Court or Tribunal should look at the factual position as at the date of the application for leave to remain.
27. Ms Mallick submitted that the Upper Tribunal judge had given inadequate reasons for concluding that paragraph 276ADE (vi) did not apply and had taken an unduly restrictive approach to the meaning of "ties" in that sub-paragraph. In particular, she submitted that the UT judge had erred in failing to consider all the relevant circumstances in accordance with [124] of Ogundimu. When pressed by the Court to state what it was that the UT judge was alleged to have failed to take into account, Ms Mallick said the UT judge had failed to take account of the friends and social circle the appellants had here and the ties of their son, who was studying here, in other words she had failed to consider the family ties to the United Kingdom. In relation to the first appellant's sister in Mauritius, the UT judge had failed to consider whether the first appellant still had any relationship with her.
28. In relation to Article 8, Ms Mallick effectively ran her third and fifth grounds together. She accepted that the UT judge had directed herself correctly on the law in considering Razgar and in having regard to the relevant provision of Part 5A of the Nationality, Immigration and Asylum Act 2002, section 117B, which had come into force on 28 July 2014, since the date of the FTT determination. However, Ms Mallick submitted that, in considering proportionality in [18] of her determination, the UT judge had erred in conducting the balancing exercise and reached a decision which was irrational and perverse. Having concluded that none of the section 117B factors prejudiced the appellants' case the UT judge should have concluded that the removal of the appellants from the United Kingdom was disproportionate. She had failed to consider their social life in the United Kingdom and weigh against it the lack of any private or social life in Mauritius. She had also failed to consider that their son's financial dependency would be interrupted if they were required to leave and in that context had failed to take into account their evidence before the FTT (recorded in [34] and [39] of its Determination) that if required to leave, they would be unable to finance the son's university education.
29. Having expressed the concern of the Secretary of State that Vos LJ had been misled, Mr Mitchell submitted that the substance of the challenge before this Court to the decision of the UT judge that there had been an error of law by the FTT judge could not stand in the light of [12] of the Determination dated 19 September 2014. He submitted that the UT judge had been correct that there was a material error of law in the determination of the FTT judge, because the relevant part of that determination focused only on the position (and in particular the impact on the son) if the appellants went to Italy. The only reference to Mauritius was in [67] which simply recorded the decision of the Secretary of State on the basis of return by the appellants to Mauritius.
30. Mr Mitchell submitted that all the other grounds of appeal amounted to challenges to the findings of fact of the UT judge, as UTJ Goldstein and Gloster LJ had said in dismissing permission to appeal. There was no error of law. The UT judge had set out the law correctly both as regards which version of Paragraph 276ADE (vi) applied and in relation to Article 8. In relation to the remade decision, he submitted that the correct approach to the facts was the one adopted by the UT judge, to look at them at the time of the hearing before her. It would be very unusual for example to disregard the fact that the son had abandoned his appeal because he had obtained Italian citizenship.

Analysis and conclusions

31. In my judgment, the UT judge was clearly right to conclude that there had been a material error of law in the Determination of the FTT judge. All the reasoning in the Determination of the FTT judge relates to what the position would be if the family returned to Italy. For example at [63] to [66] dealing with the impact on the son of his parents leaving the United Kingdom, the focus is exclusively on Italy and the fact that although born there, the son does not speak Italian. There is no consideration of the impact of return to Mauritius, simply the recording in passing at [67] of the fact that the Secretary of State's decision was made on the basis of return to Mauritius. This may be because, as the FTT judge found at [50], she had no doubt that if required to leave the United Kingdom, the parents would go to Italy rather than return to Mauritius. However, whilst that may be the factual reality, the decision under appeal was one where, as Ms Mallick accepted in her submissions, the Secretary of State had to consider whether it was unreasonable to expect the appellants to return to Mauritius. In the context of paragraph EX.1 of Appendix FM, the FTT judge simply did not consider return to Mauritius at all and the UT judge was correct in [12] of her Determination dated 19 September 2014 that the FTT judge did not give adequate reasons for applying that paragraph and thereby committed a material error of law.
32. Having determined that there was that material error of law and set aside the decision of the FTT, under section 12(2) of the Tribunals, Courts and Enforcement Act 2007, the UT judge had a discretion either to remit the case to the FTT or to remake the decision herself. Having exercised that discretion in favour of remaking the decision, under section 12(4)(b) of the Act, the UT judge was entitled to make such findings of fact as she considered appropriate. In those circumstances, she was entitled to set aside the decision of the FTT with no preserved findings of fact and make her own findings which she proceeded to do in her Determination dated 4 February 2015 following the resumed hearing on 11 December 2014. Accordingly, there is nothing in the criticism levelled by Ms Mallick against the UT judge for not simply accepting the findings of the FTT judge, for example in relation to the evidence of the first and second appellant recorded in [34] and [39] of the Determination of the FT judge.
33. Since the decision which was being remade by the UT judge was an appeal against the decision of the Secretary of State refusing indefinite leave to remain (and not a judicial review), applying normal principles in relation to appeals, the UT judge had to consider the facts as they stood as at the date of the hearing before her. This is borne out by section 85(4) of the Nationality, Immigration and Asylum Act 2002 which provides:

"On an appeal under section 82(1), 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision."

The appeal in the present case was under section 82(1).

34. [13] of MA (Pakistan) v SSHD [2016] EWCA Civ 705; [2016] 1 WLR 5093, to which Ms Mallick referred the Court after the hearing effectively confirms that, because of section 85(4) of the 2002 Act, the Upper Tribunal was entitled to look at the evidential position as at the date of the hearing before it. In other words the UT judge in the present case was entitled to take into account that the son had obtained Italian citizenship, had withdrawn his appeal, was no longer a child and was studying at Loughborough University. Ms Mallick's submission to the effect that the Upper Tribunal should engage in an artificial exercise which ignored the up-to-date factual position, is simply wrong as a matter of law.
35. In any event, even if Ms Mallick had been right, in this case it makes no difference to the UT judge's approach to paragraph 276ADE (vi) of the Immigration Rules. What she was considering was whether the first and second appellants had "no ties" with Mauritius. There was no suggestion that that question had changed factually between the application in April 2013 and the hearing to remake the decision in December 2014.
36. In her submissions that the UT judge had construed "no ties" in paragraph 276ADE (vi) too narrowly, Ms Mallick seemed to be focusing, at one point in her submissions, on whether the son had such ties, but that is not the relevant question, which concerns the "ties" or otherwise of the first and second appellants, not anyone else in their family: see the reasoning in Ogundimu at [124] where the Upper Tribunal found that the ties which the appellant's father had with Nigeria were not relevant to whether the appellant had such ties, which the Upper Tribunal found he did not.
37. In my judgment, the UT judge did not construe paragraph 276ADE (vi) too narrowly. She correctly set out the analysis of paragraph 276ADE (vi) in [123] and [124] of Ogundimu (an analysis which, as Mr Mitchell pointed out, was approved by Aikens LJ in this Court in YM (Uganda) v SSHD [2014] EWCA Civ 1292 at [50]-[52]) and she then applied that analysis at [13] of her Decision. I do not consider that there was an error in this part of her Decision. In particular, it seems to me that Ms Mallick was wrong in her submission that the UT judge had failed to consider the appellants' social and family life in the United Kingdom. That is exactly what she was doing in the first half of [13]. However, the question for her was whether they had "no ties" with Mauritius. She correctly identified the ties they did have: they are both Mauritian nationals, albeit they have not lived there for 25 years, the first appellant has a married sister there and given their age and work record in the United Kingdom, the UT judge could see no reason why they would not be able to obtain work in Mauritius. If the appellants had wanted to contend that the first appellant had fallen out with her sister or that, for some reason, they would not be able to get work in Mauritius, it was incumbent on them to call evidence to that effect at the hearing before the UT judge. They did not do so.
38. Furthermore, in my judgment, the assessment made by the UT judge in relation to the ties the appellants had with Mauritius not only complied with the approach set out in Ogundimu but with the approach of the Strasbourg jurisprudence as reflected in [12] and [13] of the later Upper Tribunal decision in SSHD v Bossadi [2015] UKUT 42 (IAC); [2015] Imm AR 3, upon which Ms Mallick also relied.
39. Likewise, I do not consider that there was any error of law in the approach of the UT to the Article 8 proportionality exercise. As Ms Mallick accepts, the UT judge correctly set out the applicable legal principles, by reference to both Razgar and section 117B of the Nationality, Immigration and Asylum Act 2002. She found, in favour of the appellants, that none of the factors in that section prejudiced their case. In engaging in the relevant balancing exercise at [18] of her determination, she did consider the family life of the appellants in the United Kingdom with their son and the impact on him of his parents returning to Mauritius, particularly financially, but again found that there was no evidence to suggest they could not obtain work in Mauritius and therefore, continue to support him financially. Her conclusion that she was not satisfied their relationship with their son went beyond the usual family ties between a young adult at university and his parents cannot be faulted. She also gave due weight to the fact that they had lived in Europe for many years, including Italy. In my judgment, nothing was left out of her analysis. Her conclusion that removal of the appellants from the United Kingdom would in all the circumstances not be disproportionate to the need for effective immigration control properly reflected the public interest enunciated in section 117B(1) of the 2002 Act. Contrary to Ms Mallick's submissions, that conclusion was not irrational or perverse and, as with the UT judge's decision on paragraph 276ADE (vi), there was no error of law.
40. In all the circumstances, this appeal must be dismissed.

Lord Justice Moylan

41. I agree.