MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor, Court of Appeal - Civil Division, July 07, 2016, [2016] EWCA Civ 705

Resolution Date:July 07, 2016
Issuing Organization:Civil Division
Actores:MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor
 
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Case Nos: C4/2015/2958/QBACF, C5/2015/3155/AITRF,

C5/2015/1612/AITRF, C5/2015/1633/AITRF,

C5/2015/1668/AITRF AND C5/2015/2305/AITRF

Neutral Citation Number: [2016] EWCA Civ 705

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

THE HON MR JUSTICE NICOL & ORS

CO2620/2015

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 07/07/2016

Before :

LORD JUSTICE ELIAS

LADY JUSTICE KING

and

SIR STEPHEN RICHARDS

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Between :

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Paul Skinner (instructed by ATM Law Solicitors) for the First Appellant

Manjit Gill QC and Ripon Akther (instructed by Malik & Malik) for the Second Appellant

Stephen Knafler QC and Charlotte Bayati (instructed by Polpitiya & Co) for the Third, Fourth and Fifth Appellants

Frances Shaw (instructed by Adam Bernard Solicitors) for the Sixth Appellant

The First Respondent did not appear and was not represented

Lisa Giovannetti QC and Andrew Byass (instructed by Government Legal Department) for the Secretary of State for the Home Department

Hearing dates : 4, 5 May 2016

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JudgmentLord Justice Elias :

  1. These six cases were listed to be heard together. Three of the Sri Lankan cases, NS, AR and CW, were joined below. In all save Pereira anonymity directions were made although I will hereafter refer to Pereira as ``AP''. They all raise a common issue, albeit arising in two different legal contexts. The question is how the test of reasonableness should be applied when determining whether or not it is reasonable to remove a child from the UK once he or she has been resident here for seven years.

  2. The contexts in which the issues arise are rule 276ADE(1)(iv) of the Immigration Rules and section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (``the 2002 Act''). In the former case the application for leave is brought under the rule by the child; in the latter, it is a claim brought outside the Immigration Rules by a parent under article 8 ECHR. In each case persons exercising a parental role (and other siblings) may be entitled to stay with the child in the UK in circumstances where they would not qualify for leave in their own right, independently of their status as parents. In effect they may be able to piggy back on the rights of the child. In each case the child in question must have been living in the UK for more than seven years in order for the provisions to bite.

  3. The cases of MA and AP involve applications under rule 276ADE; the remaining cases involve only article 8 applications engaging section 117B(6). (A third, similarly drafted rule which involves the reasonableness test is found in Paragraph EX.1 of Appendix FM to the Immigration Rules which relates to certain claims for leave to remain brought by, inter alia, single parent carers. The provisions are complex. EX1 was in fact unsuccessfully relied upon in some of these cases but it is not in issue in any of the appeals.)

  4. Some of the appeals also involve other issues. MA raises the question whether the courts are constrained in the way they must approach the public interest balancing exercise where the best interests of the child have to be considered in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009. In AP an issue is whether a court may need to adjourn a hearing if it has insufficient information properly to assess where the best interests of the child lie.

    Legal framework

  5. Paragraph 276ADE(1) sets out certain requirements which, if satisfied, lead to the applicant being granted leave to remain. The provision 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:

    (i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and

    (ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

    (iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

    (iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

    (v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

    (vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK''.

  6. Paragraph (i) identifies various grounds under which an applicant may be refused even if he or she otherwise meets the criteria specified in the rule. These include cases where the applicant is subject to a deportation order or his presence is not conducive to the public good; or he has failed without reasonable excuse to supply certain information; or he has provided false information in relation to the application or has failed to disclose material facts.

  7. The relevant provision relied upon in the cases of MA and AP is paragraph (iv). In each of those cases the applicant was a child satisfying the seven year rule and the only issue was whether it would not be reasonable to expect the applicant to leave the UK.

  8. Sections 117A and 117B are found in part 5A of the 2002 Act which is headed ``Article 8 ECHR: Public Interest Considerations''. They apply in all cases where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's rights under Article 8.

  9. Section 117A is as follows:

    (1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts--

    (a) breaches a person's right to respect for private and family life under Article 8, and

    (b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

    (2) In considering the public interest question, the court or tribunal must (in particular) have regard--

    (a) in all cases, to the considerations listed in section 117B, and

    (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

    (3) In subsection (2), ``the public interest question'' means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).

  10. The considerations referred to in section 117A(2)(a), which are said by that provision to be applicable in all cases where the public interest question is under consideration, are as follows:

    (1) The maintenance of effective immigration controls is in the public interest.

    (2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English--

    (a) are less of a burden on taxpayers, and

    (b) are better able to integrate into society.

    (3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons--

    (a) are not a burden on taxpayers, and

    (b) are better able to integrate into society.

    (4) Little weight should be given to--

    (a) a private life, or

    (b) a relationship formed with a qualifying partner,

    that is established by a person at a time when the person is in the United Kingdom unlawfully.

    (5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.

    (6) 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.

  11. The definition of ``qualifying child'' is found in section 117D:

    ``qualifying child'' means a person who is under the age of 18 and who-

    (a) is a British citizen, or

    (b) has lived in the United Kingdom for a continuous period of seven years or more;

  12. Section 117B relates to those not liable to deportation. The main category of persons liable to deportation are foreign criminals. They are subject to an additional set of public interest considerations found in section 117C, supplementing those in section 117B. This provision does not directly arise in these appeals, but it is of some importance to the arguments in issue. The material parts of the section are as follows:

    ``117C Article 8: additional considerations in cases involving foreign criminals''

    (1) The deportation of foreign criminals is in the public interest.

    (2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

    (3) In the case of a foreign criminal (``C'') who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies....

    (5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

    (6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described...

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