| NIQB 18||Ref:||KEE10574|
|Judgment: approved by the Court for handing down||Delivered:||1/3/18|
|(subject to editorial corrections)*|
I have anonymised this judgment given that it involves two children and their identities should be protected. Nothing must be published which would identify the children or their family.
(a) The decision of the respondent to refuse to grant leave to remain is contrary to section 6 of the Human Rights Act 1998 read together with article 8 of the ECHR as it constitutes a disproportionate interference with the right to respect for family life and private life. In particular –(i) The decision of the respondent amounts to a disproportionate interference with the right to respect for family life of the applicants as it is unreasonable to expect the applicants to relocate to Ukraine in order to continue to enjoy a family life together.
(ii) The decision of the respondent amounts to a disproportionate interference with the right to respect for private life of each of the applicants in its relocation to Ukraine, and the consequent disruption of all existing social ties in Northern Ireland, is not necessary in a democratic society in order to achieve the legitimate state aims of protecting the rights of others and economic well-being.
(iii) In relation to the third and fourth applicants namely the children, the decisions of the respondent amount to a disproportionate interference with the right to respect for family life as it has failed to address whether the best interests of the children lie with the family remaining together in the United Kingdom or with relocation to Ukraine.
(b) The decision of the respondent to refuse to grant leave to remain is contrary to section 55 of the Borders, Citizenship and Immigration Act 2009 (“"section 55 of the 2009 Act”") as it cannot be said to be consistent with the duty to promote and safeguard the welfare of children. In particular,(i) The respondent has failed to expressly identify whether the best interests of the third and fourth applicants is a continuation of residence in Northern Ireland with their parents or relocation to Ukraine with their parents and to take such an outcome into consideration.
(ii) The respondent has assumed that the applicants must have connections and/or family support in Ukraine which would facilitate integration should they be deported. Such assumptions are inconsistent with the correct approach to section 55 as set out by Mr Justice Stephens in Re ALJ  NIQB 88 at paragraphs 91 to 109. The decision-maker must assess the position on the basis of evidence rather than assumptions.
(c) The decision of the respondent to certify each of the claims as clearly unfounded is unreasonable and contrary to section 94 of the Nationality, Immigration and Asylum Act 2002 in particular –(i) On the basis of the materials placed before the respondent it was not reasonably open to her to conclude that the appeals of each applicant was certain to be dismissed by the First Tier Tribunal (IAC).
(d) The decision of the respondent to refuse to grant an in-country right of appeal is contrary to section 6 of the Human Rights Act 1998 as it deprives the applicants of the procedural right to effective remedy as protected by article 8 of the ECHR. The decision of the respondent in respect of each applicant is contrary to the judgment of the UK Supreme Court in the case of R (Kiarie) v Secretary of State for the Home Department  UKSC 42. During the hearing Mr Bassett and Mr Kennedy helpfully agreed that if the court was minded to decide that the certification of the human rights claim as clearly unfounded succeeded the issue of an appeal in-country automatically follows and so that ground is not necessary.
a. whether the best interests of the children were properly assessed by the decision maker pursuant to the section 55 duty.
b. whether an out of country appeal represents a breach of the procedural right contained within article 8.
• 16 November 2016, the applicants send correspondence through Mr Natur Solicitor which raises a human rights claim with enclosures in relation to the family situation in Northern Ireland and the situation in Ukraine.
• 25 May 2017, the respondent replies inviting an asylum claim
• No asylum claim is pursued
• 20 July 2017, the respondent refuses the applicant’'s human rights claim and certifies it as clearly unfounded
• 7 August 2017, pre-proceedings correspondence is sent by Mr Natur
• 16 August 2017, the respondent replies to the pre-proceedings correspondence maintaining the decision reached on 20 July 2017
The evidence of the applicants
Submissions made by the parties
(i) In relation to the first ground of challenge Mr Bassett argued that article 8 is engaged both as regards family and private life and applying the law in this area he contended that the decision to refuse leave to remain is disproportionate. He relied on the case of Zoumbas v SSHD  UKSC 10 which sets out the approach to immigration decisions involving children and in particular that the best interests of the child are an integral part of the proportionality assessment under article 8 of the Convention.
(ii) Turning specifically to the best interests of the children, Mr Bassett argued that this decision offends section 55 of the Border Citizenship and Immigration Act 2009 given that the best interests of the children have not been carefully assessed, identified and given that the welfare of the children is a much wider inquiry than an inquiry as to whether there is a real risk of a breach of a fundamental right under the ECHR.
(iii) In relation to the certification of the claim as clearly unfounded under section 94(1) of the Nationality, Immigration and Asylum Act 2002, Mr Bassett pointed out that the test in relation to this is extremely high. He relied on R(NK) Pakistan v SSHD  EWCA Civ 1145 where the Court of Appeal quashed the decision to certify a claim as clearly unfounded where there was a need for specific inquiries as to whether in the individual circumstances of the appellant’'s case adequate protection would be available to her and whether she could internally relocate. Mr Bassett argued that it cannot be said that the applicants are completely and utterly without hope of succeeding in their appeals.
(iv) In relation to consideration of the best interests of the child and/or the article 8 claim in general, Mr Bassett argued that the decision-making letter conspicuously fails to take into account the effect upon the education of the eldest child if the family were to be returned together and also the difficulties set out in the evidence of a relocation to Ukraine.
(v) In relation to the right to an effective appeal again Mr Bassett pointed out the difficulties and hurdles in evidence if the family had to relocate for an appeal relying on R(Byndloss) v Secretary of State for the Home Department  UKSC 42.
(i) In relation to the argument about an in country versus out of country right of appeal, Mr Kennedy said that the Byndloss case dealt with a different situation and was not relevant in this case. As regards Kiarie and Byndloss, the Court of Appeal in Ashan & Ors v SSHD  EWCA Civ 2009 noted that Lord Wilson summarised the decisive issues in Kiarie and Byndloss as being that the appellants would need to give oral evidence and that the evidence showed that the financial and logistical barriers were almost insurmountable. The question of the need for an applicant to give evidence orally, in cases like Kiarie and Byndloss arose in no small part by virtue of the nature of the question to be answered before an appeal; in that case had the appellant truly changed their ways. He said that there had been evidence before the Supreme Court in Kiarie and Byndloss in respect of the obstacles in making effective arrangements for video-link facilities in Kenya and Jamaica. He argued that the Court of Appeal in Ashan accepted in principle that the question of whether it is realistically possible for evidence to be given by video-link needs to be assessed on a case by case basis. Whilst holding in Ashan and the other cases being considered that out of country rights of appeal would not satisfy the appellant’'s right to a fair and effective procedure, Lord Justice Underhill stated:“"I emphasise that that conclusion depends on the particular features of the appellant’'s cases, namely that the nature of the issues raised by their appeals was such that they could not be fairly decided without hearing their oral evidence and also the facilities for giving such evidence by video-link were not realistically available.”"
In the Ashan and related cases, at issue was the question of whether or not the individual appellants had engaged in cheating and as such their oral evidence was relevant to any consideration of their credibility. The judgment further noted that the question of whether or not there was a requirement for oral evidence will depend upon the nature of the issues.
(ii) Mr Kennedy contended that in the current cases the utility or requirement for oral evidence is not made out and would not be required.
(iii) Mr Kennedy also relied on guidance in relation to the certifying of protection in human rights claims under section 94 guided by the cases of Thangarasa and Yogathas  UKHL 36. The test being that a manifestly unfounded claim is a claim which is so clearly without substance that it is bound to fail; it is possible for a claim to be manifestly unfounded even if it takes more than a cursory look at the evidence to come to a view that there is nothing of substance in it.
(iv) Mr Kennedy argued that the right to family life was not engaged in this case because the family would never be separated. He said that this was effectively a private life case.
(v) In relation to the best interests of the children Mr Kennedy contended that this had been taken into account in the decision-making letter. He referred to the fact that this was a comprehensive letter and that the children would all be returning together to Ukraine and could be accommodated in Ukraine.
(vi) In relation to certification, Mr Kennedy argued that there is nothing in the applicants’' circumstances that would allow for a finding that the claim is not clearly unfounded. He said that there were no exceptional circumstances in this case.
(vii) In relation to an effective right of appeal, Mr Kennedy argued that there were not the obstacles contended for by the applicants.
(viii) Mr Kennedy accepted that if the decision in relation to the certification were quashed there would automatically be an in-country right of appeal and so that aspect of the case did not need further consideration.
“"(1) The Secretary of State must make arrangements for ensuring that –
(a) the functions mentioned in sub-section (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom ….
(2) The functions referred to in sub-section (1) are –
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an Immigration Officer …
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of sub-section (1).”"
`In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’'
“"In the field of immigration, therefore, the enactment of section 55 discharges an international law obligation of the UK Government. While section 55 and Article 3(1) of the UNCRC are couched in different terms, there may not be any major difference between them in substance, as the decided cases have shown. The final striking feature of section 55 is that it operates to protect all children who are in the United Kingdom: there is no qualification such as residence or nationality.”"
“"The welfare of the children is a much wider enquiry than an enquiry as to whether there is a real risk of a breach of a fundamental right under either the Charter or ECHR. The welfare of the children may be to remain in Northern Ireland even though the applicants are unable to establish a real risk of a breach of a fundamental right if they were returned to Ireland. “"
“"1. The best interests of a child are an integral part of the proportionality assessment under article 8 of the ECHR.
2. In making that assessment, the best interests of the child must be a primary consideration, although not always the only primary consideration; and the child''s best interests do not of themselves have the status of the paramount consideration.
3. Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant.
4. While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid risk that the best interests of a child might be undervalued when other important considerations were in play.
5. It is important to have a clear idea of a child''s circumstances and of what is in a child''s best interests before one asks oneself whether those interests are outweighed by the force of other considerations.
6. To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment.
7. A child must not be blamed for matters for which he or she is not responsible such as the conduct of a parent.”"
“"In my judgment all Lord Hodge JSC was saying is that it is vital for the court to have made a full and careful assessment of the best interests of the child before any balancing exercise can be undertaken. If that is not done there is a danger that those interests will be overridden simply because their full significance has not been appreciated. The court must not treat the other considerations as so powerful as to assume that they must inevitably outweigh the child''s best interests whatever that might be, with the result that no proper assessment takes place.”"
“"This decision also takes into account the Secretary of State’'s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of the children in carrying out her immigration functions.”"
This is repeated at another stage in the letter at page 6. However to comply with
section 55 of the 2009 Act it is not enough to simply refer to the duty.
(i) There is one line on page 6 of 10 which reads, “"It is considered that R1 and R2’'s best interests will be served if they remain with their parents.”" As Mr Kennedy accepted during the argument there is no further consideration of the specific interests of this children, in particular the issue of the eldest child’'s schooling which was referenced in the application of 16 November 2016.
(ii) There is no consideration of the fact that English is the first language of the children and the particular resonance of this for the eldest child who is at school.
(iii) Another omission from the letter is any meaningful engagement with the issue of social conditions in Ukraine and how that would impact upon the children.
(iv) At page 7 of 10 some assumptions are made that the applicant’'s parents could support the children in Ukraine and also that extended family would support them. There is no evidential basis for these statements and in fact the applicant’'s evidence in these proceedings provides significant contra indicators to this stated position.
(v) There is no reference to the tensions within Ukraine highlighted by the applicant notwithstanding the fact that these have a bearing on the children.