The Upper Tribunal in their recent decision of PD and Others (Article 8 – conjoined family claims) Sri Lanka  UKUT 108 (IAC) correctly refused to accede to the approach, that in considering the applicability of the 7Year Rule, the claim of a “qualifying child” concerning a family unit, should be severed from that of the parents who did not meet the requirements of the Immigration Rules. Not only did the Upper Tribunal refuse to do so but also in allowing the appeal, distinguished in relevant parts, the Court of Appeal decision of EV (Philippines) v Secretary of State for the Home Department  EWCA Civ 874.
Among other considerations and factors, the Upper Tribunal in PD and Others noted in relation to the relevant qualifying child that, “Critical milestones in both his personal and educational development have been passed and are now looming”; that he was “ an intellectually gifted young man who has made excellent academic progress” and also observed that the critical stage of his personal and educational development had been reached.
The minor children in EV( Philippines) had only been in the UK since 2009, however it was submitted that in relation to the best interests of the children, having been found by the Tribunal Judge that they should remain with their parents and continue their education here, that factor ranked above any other and should dictate the outcome that the Appellants stay in the UK since no consideration of substantial moment permitted a different result. It was noted by the Court of Appeal in EV( Philippines) that the Tribunal Judge had an excellent report before him on the three children from their school. It is important however to recall that the Court in EV (Philippines), disparagingly stated that “In the real world, the appellant is almost always the parent who has no right to remain in the UK. The parent thus relies on the best interests of his or her children in order to “piggy-back” on their rights”. It was also observed by the Court of Appeal that none of the family in EV( Philippines) was a British citizen. The Court of Appeal concluded that they could not see that the desirability of the children being educated at public expense in the UK could outweigh the benefit to the children of remaining with their parents. The Court also made it clear that just as the United Kingdom could not provide medical treatment for the world, so too the UK could not educate the world.
The Upper Tribunal in PD and others rightly distinguished EV (Philippines). In relation to the question of whether it would be reasonable to expect the qualifying child to leave the United Kingdom, the Upper Tribunal stated that neither Paragraph 276 ADE(1)(iv) of the Rules nor Section 117(B)(6) of the 2002 Act featured in EV (Philippines), where the child concerned fell far short of the qualifying period of seven years and the claims therefore lay entirely outwith the Rules.
Where the Upper Tribunal did not distinguish EV (Philippines) as at paragraph 24 of their judgement, in adopting what the Court of Appeal said in EV that “If the parents are removed, then it is entirely reasonable to expect the children to go with them”, the Upper Tribunal in PD and Others however managed to utilise that phrase to ultimately conclude in the Appellant’s favour justifying why the qualifying child should remain in the UK with his parents.
SUBSTANTIAL CONSIDERATIONS OF THE UPPER TRIBUNAL IN PD AND OTHERS
In reaching their decision, the Upper Tribunal had regard to the following:
- They noted what they considered to be the “ancestry” of paragraph 276ADE(1) (iv) of the Immigration Rules;
- The “lineage” of the 7year Rule relating to children;
- References were made to DP5/96, the 7 year Children concession, which was withdrawn on 9 December 2008;
- It was noted that Paragraph 276 ADE(1) (iv) of the Rules when first introduced, with effect from 9 July 2012, simply required that the claims of children under 18years of age for leave to remain in the UK would succeed under the private life requirements if they could demonstrate a minimum of 7 years continuous residence;
- Paragraph 276 ADE(1) (iv) was however amended, with effect from 13 December 2012 requiring that in addition to the residence of 7years, it was also required to be that it would not be reasonable to expect the applicant to leave the UK;
- The legal framework in relation to the provisions of Part 5A of the Nationality, Immigration and Asylum Act 2002 in particular section 117B were noted;
- It was noted that given that the child member of the family unit constituted by the three Appellants had lived in the United Kingdom for a continuous period of seven years or more, he had the status of “qualifying child” within the Part 5A regime;
- The interplay between Part 5A of the 2002 Act and the Rules was referred to;
- It was observed that the applicable framework also has a policy dimension and reference was made to the Immigration Directorate Instruction( IDI) of the Home Office entitled “Family Life (as a partner or parent) and Private Life: 10 Year Routes”, published in August 2015;
- The Upper Tribunal was also mindful of the “statutory genesis” of all IDIs by reference to paragraph 1(3) of Schedule 2 to the Immigration Act 1971 and their status in the legal system.
PD AND OTHERS( ARTICLE 8- CONJOINED FAMILY CLAIMS) SRI LANKA (2016) UKUT 108 (IAC)
The Facts in Summary:
The Appellants, were nationals of Sri Lanka, consisting of mother, father and their son aged 14 years at the time of the appeal. All three had entered the United Kingdom on 19 January 2005. The father had been granted clearance to enter the United Kingdom as a student and therefore the mother and son were his dependants. The son was aged three years when he arrived in the UK.
The Appellants remained lawfully in the United Kingdom until February 2010.
On 12 February 2013, an application for leave to remain invoking Article 8 of the ECHR was made.
This application was refused by the Secretary of State’s decision dated 30 April 2013. Following reconsideration, by decision dated 23 August 2014 the Secretary of State maintained the refusal decision. The family appealed to the Tribunal by way of challenge.
On 15 January 2015, the First-tier Tribunal dismissed their appeal. The Appellants applied for permission to appeal, which was subsequently granted.
By decision promulgated on 05 October 2015, the Upper Tribunal set aside the decision of the First-tier Tribunal.
It was noted that in granting permission to appeal, the Upper Tribunal raised the question of whether “…… the rights of the third Appellant [the son] should have been considered first”. The arguments of the parties’ representatives in the Upper Tribunal at the oral hearing focused mainly on this issue together with the test of reasonableness enshrined in paragraph 276 ADE (1)(iv) of the Immigration Rules.
The Upper Tribunal also noted at paragraph 18 of their judgement that given that the son had been residing continuously in the UK for some 11 years, he would secure the grant of leave to remain under paragraph 276 ADE(1)(iv) of the Rules if he could satisfy the requirement that “…. It would not be reasonable to expect [him] to leave the UK”.
As regards his parents, it was stated that neither could succeed in a claim under the Rules. Their claims were , therefore, based on Article 8 ECHR outwith the Rules.
The Upper Tribunal observed at paragraph 20 of their decision that there was no statutory requirement, whether embodied in primary or secondary legislation, whereby the Secretary of State was obliged to determine the claim of the child first. Nor was there any such rule requiring the tribunal to do so in the context of the determination of the conjoined appeals. Furthermore, there was no stipulation in the Immigration Rules to this effect.
- Treebhawon and others (section 117B(6))  UKUT 674 (IAC)
- In Bossade (Sections 117A – D: inter-relationship with Rules)  UKUT 415 (IAC)
- JO and Others (section 55 duty)  UKUT 552 (IAC)
- EV (Philippines) v Secretary of State for the Home Department  EWCA Civ 874
- MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192
- Alvi) v Secretary of State for the Home Department  UKSC 33
- ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4
- EM and Others (Returnees) Zimbabwe CG  UKUT 98
- NF (Ghana) v SSHD  EWCA Civ 906
- EM (Lebanon) v Secretary of State for the Home Department  UKHL 64
- EB (Kosovo) v Secretary of State for the Home Department  UKHL 41
- Ishtiaq v Secretary of State for the Home Department  EWCA Civ 386
Effect of Severance: Breach of Public Law Framework- Duty on The Secretary of State To Consider All Material Facts and Considerations:
The Upper Tribunal considered that the answer to the principal question of law upon which permission to appeal to the Tribunal was granted lay in the public law framework within which the Appellants’ applications to the Secretary of State were made and determined. One of the overarching principles of public law thereby engaged was the duty imposed on the Secretary of State to take into account all material facts and considerations. The Upper Tribunal considered that if the application of the third Appellant had been severed from the other two and determined in isolation from them, in some kind of vacuum, this would have given rise to a breach of this duty. It was considered that it was the very essence of Article 8 ECHR claims based on the family life dimension of this Convention provision that there are relationships, bonds and ties joining together the members of the family unit in question. In circumstances where the claims of several family members coincide, it would be artificial and unrealistic to determine them on their individual merits, in a rigid sequence and in insulated packages, without reference to the other claims.
Effect of Severance: Contravention of Both Public Law principles and Article 8 itself – Breach of the Section 55 Duty:
The Upper Tribunal furthered considered that if the third Appellant’s claim had been severed from his parents and determined in isolation in the manner suggested, this would have contravened both public law principles and Article 8 itself . It would also have been in breach of the duty imposed by section 55 of the Borders, Citizenship and Immigration Act 2009 which has been construed as requiring a properly informed evaluation of all material facts and considerations in assessing a child’s best interests. Reference was made to JO and Others (section 55 duty) in this regards.
Artificiality, Crystal Ball Gazing to be Avoided:
In the Upper Tribunal’s judgment, the duty imposed upon the Secretary of State in the circumstances presented by the simultaneous advent of the three family members’ claims jointly was, rather than engaging in a fiction of the kind mooted, to process and consider the claims together and then determine them. This would avoid the manifest artificiality of applying the reasonableness test enshrined in paragraph 276 ADE (1)(iv) and s117B (6) of the 2002 Act in the purely imaginary world that the child’s parents did not have claims, also based on Article 8, pending. Further, it would have been equally surreal to determine the parents’ claims without reference to either or both of the other two. This was so not least because decisions of the kind required in the present cases involved, unavoidably, predictive evaluative judgments concerning the short and medium term futures of all three Appellants. The processing, consideration and determination of the three claims together would equip the decision maker with the information necessary to acquit the public law duty of making the decisions on as fully informed a basis as possible, in tandem with the section 55 duty, as decided in JO and Others (section 55 duty)  UKUT 517 (IAC). The Upper Tribunal stated that crystal ball gazing, which not infrequently opens the door to Wednesbury irrationality and the kindred public law misdemeanour of failing to take into account all material information and considerations, would thereby be avoided.
Criterion of Reasonableness Requires Secretary of State to Evaluate All Three Claims Together:
The Upper Tribunal stated that the application of the approach which they had espoused would have led the decision maker to recognise that the only person who could conceivably succeed under the Rules was the son, the third Appellant, who satisfied the seven years resident requirement. However, they considered that the decision maker could not then proceed to determine the son’s application in isolation from the others, since the application of the criterion of reasonableness behoved the official to evaluate all three claims in the round and determine them together. The answer to the question of whether the son could reasonably be expected to leave the United Kingdom could not realistically or sensibly be answered without first examining what the future was likely to hold for all three family members.
Approach of Upper Tribunal Stated to Find Support in EV (Philippines):
At paragraph 24 of their judgement, the Upper Tribunal added that the approach they advocated did not detract from the general principle that in Article 8 ECHR cases it is appropriate for the decision maker and, on appeal, the tribunal to consider first whether the person’s claim satisfies the relevant requirements of the Rules. The Upper Tribunal also made it clear that they were further satisfied that the approach which they favoured found support in the decision in EV (Philippines) v Secretary of State for the Home Department  EWCA Civ 874. The Upper Tribunal referred in particular to the connection between children and parents which Christopher Clarke LJ made in at paragraph 33 in EV. It was noted that the Court of Appeal found that the overall conclusion of the tribunal judge which was, in substance, that it was reasonable to expect the three children concerned to continue to live with their parents and that all should return together to their country of origin, with the public interest in the maintenance of firm immigration control prevailing, was sustainable in law. In the language of Lewison LJ, to remain with their parents was “obviously” in their best interest as per paragraph 60 of in EV.
Qualifying Child and Educational Development :
As noted at paragraph 5 of PD, the father had confirmed at appeal that the main focus of their claim was his son’s education. The son had progressed successfully through the United Kingdom education system since the family’s arrival in 2005. He was scheduled to undertake his GCSEs in September 2016. Since commencement of his second level education he had attended the same school. The father asserted that his son had some familiarity with, but no fluency in, Sinhalese. At this stage of his education, the son’s ambition was to qualify as a lawyer.
At paragraph 29 of the judgement, the Upper Tribunal stated that the best interests of any child necessarily encompasses a potentially broad range of factors bearing on multiple aspects of their life. It was noted that the third Appellant, the son, had, beginning at the age of three years, spent three quarters of his life in the United Kingdom. Throughout this period his life had been shaped by United Kingdom culture, values, pastimes, living standards, language and the prevailing education system. The third Appellant had participated in the latter during the past ten years. Critical milestones in both his personal and educational development had been passed and are now looming. The Upper Tribunal found that , based on the evidence, he was an intellectually gifted young man who had made excellent academic progress; he had a wide circle of friends; he was a member of the Army Cadets; and he engaged in extra-curricular activities. His integration in United Kingdom society and culture was considered to be complete. The Upper Tribunal further found that his connections with his country of origin were minimal, extending barely beyond the facts that he was a person of Sri Lankan nationality who was born in that country and spent the first couple of years of his life there.
The Upper Tribunal stated that they concluded firmly that as regards those aspects of the third Appellant’s life highlighted, his best interests, viewed through the lens of Article 8 private life, would be served by remaining in the United Kingdom. The four dominant factors, summarised, were his length of residence in the United Kingdom, his full integration in United Kingdom society, his age and his minimal ties with his country of origin. The Upper Tribunal observed that this conclusion was expressly foreshadowed in the Secretary of State’s IDI, an instrument which, having the status of a material consideration, served to inform the Article 8 private life analysis.
Best Interests of the Qualifying Child:
The Upper Tribunal considered the third Appellant’s best interests through the prism of his family life. As an only child, he had, vis-à-vis his parents, the bonds of love, affection, respect and dependency which one would expect of any child of 14 in a stable, settled family. Viewed from the twin perspectives of the third Appellant’s private and family life, the conclusion that his best interests would be best served by continuing to live in the United Kingdom, with his parents, followed inexorably.
The Parents: EV (Philippines) Distinguished:
It was noted by the Upper Tribunal that the parent’s Article 8 claims could not succeed under the Rules. They did not come remotely close to doing so. They could only succeed out with the Rules, which involved them satisfying the test of compelling/exceptional circumstances prescribed in MF Nigeria .
The Upper Tribunal answered in the affirmative that the dismissal of the parents’ appeals would interfere with their rights to respect for their private lives. At paragraph 34 of their judgement, the Upper Tribunal stated that proportionality is the “public interest question” within the meaning of Part 5A of the 2002 Act and that by section 117A(2) thereof, the Upper Tribunal were obliged to have regard to the considerations listed in section 117B.
It was noted at paragraph 35 of their judgement, that the third Appellant was a “qualifying child” by virtue of his length of residence in the United Kingdom.
At paragraph 36 of their judgement, the Upper Tribunal stated that they considered that where a court or tribunal reaches the stage of conducting the balancing exercise required by a proportionality assessment, as here, the two tests enshrined in section 117B(6) are to be considered and applied together.
The application of the first test, namely whether the first and second Appellants have genuine and subsisting parental relationships with the third Appellant, yielded a swift affirmative answer which was not contested on behalf of the Secretary of State. The second test posed the question of whether it would be reasonable to expect the third Appellant to leave the United Kingdom. This was a mirror image of the test contained in paragraph 276 ADE(1)(iv) of the Rules. The Upper Tribunal observed that neither this provision of the Rules nor Section 117(B)(6) of the 2002 Act featured in EV (Philippines), where the child concerned fell far short of the qualifying period of seven years and the claims therefore lay entirely outwith the Rules.
Secretary of State’s IDI Relied Upon in Relation to Effect of 7 Years Residence:
The Upper Tribunal further considered that the general passages in the Secretary of State’s IDI, are in their essence, a faithful reflection of the extensive Article 8 ECHR jurisprudence. Thus there was a long standing recognition that, with the passage of time, children progressively establish roots and integrate in the host country. This was the rationale of the “seven year rule”. As the Secretary of State’s guidance states:
“The longer the child has resided in the UK, the more the balance will begin to swing in terms of it being unreasonable to expect the child to leave the UK and strong reasons will be required in order to refuse a case with continuous UK residence of more than seven years.”
Balancing of Factors:
In the Upper Tribunal’s consideration of the third Appellant’s private life in the United Kingdom, having already highlighted facts and factors, the Upper Tribunal balanced these with the outcome of the forecast which must necessarily be undertaken, based on the premise of the entire family returning to Sri Lanka. On the one hand, it was considered that this would be hugely disruptive for the third Appellant in particular and would decimate the friendships, relationships and activities that form the core of his private life. It would also obstruct his education, though not irredeemably so. It would involve his transfer to a society whose culture, values, norms and language are alien to him. Emotionally, it would undoubtedly be highly stressful. Furthermore, this fundamental transformation of his life and lifestyle would occur at an age which is recognised universally as of critical importance in every person’s development.
The Upper Tribunal stated that on the other hand, taking into account the third Appellant’s age from a different perspective, coupled with his educational achievements, intellectual ability and the support of a stable family unit, he would, foreseeably, adapt over time. Nor was it claimed that his career aims could not be achieved in his country of origin. It was noted that this was a stable, educated and healthy family unit.
The Reasonableness Test – Other Legal Tests Have No Application :
The Upper Tribunal emphasized that the test to be applied is that of reasonableness. It was stated that other legal tests which have gained much currency in this sphere during recent years – insurmountable obstacles, exceptional circumstances, very compelling factors – have no application in the exercise they were performing. It was noted that self-evidently, the test of reasonableness poses a less exacting and demanding threshold than that posed by the other tests mentioned.
The Upper Tribunal stated that they considered that the application of the reasonableness test involves a balance of all material facts and considerations. The application of this test will invariably be intensely fact sensitive. Ultimately, the factors to which the Upper Tribunal gave determinative weight was the length of the third Appellant’s residence in the United Kingdom (some 11 years), which had spanned three quarters of his life; his deep immersion in all aspects of life in this country; the critical stage of his personal and educational development which has been reached; his minimal connections with his country of origin; and the likelihood that he will make a useful contribution to United Kingdom society.
Furthermore, the Upper Tribunal stated that they weighed the third Appellant’s best interests, as they had assessed them, which have the status of a primary consideration. It was noted that the main countervailing factor was that the first and second Appellants had no legal right to remain in the United Kingdom. Their immigration status was that of unlawful over-stayers. This was a factor of undeniable weight. However, the Upper Tribunal stated that it has been frequently stated that a child’s best interests should not be compromised on account of the misdemeanours of its parents( as per Baroness Hale in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4, and EM (Lebanon) v Secretary of State for the Home Department  UKHL 64.
The Upper Tribunal considered that there was a preponderance of factors impelling to the conclusion that it would not be reasonable to expect the third Appellant to leave the United Kingdom. Accordingly, his appeal succeeded under the Rules.
The Upper Tribunal stated that the effect of section 117B(6) of the 2002 Act is that the public interest does not require the removal of either parent viz the first and second Appellants.
Parents : The Test is Exceptional or Compelling Circumstances:
The Upper Tribunal stated that given that the parents’ appeals could only succeed outwith the Rules, the test to be applied is that of exceptional, or compelling, circumstances) MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192 , at )
The Upper Tribunal referred to the unequivocal statement in section 117B(6) that the public interest does not require the removal of these parents given that they have a genuine and subsisting parental relationship with the third Appellant and the Upper Tribunal’s finding that it would not be reasonable to expect him to leave the United Kingdom.
Further given the Tribunal’s findings, the effect of dismissing the two parents’ appeals would be to stultify their decision that the third Appellant qualifies for leave to remain in the United Kingdom under the Rules. Insofar as section 117B(6) requires a balancing exercise to be performed, the Upper Tribunal highlighted their previous assessments and findings and, balancing everything, their overall conclusion was that the test of exceptional circumstances was satisfied. Thus the first and second Appellants’ appeals succeeded outwith the Rules.
The Upper Tribunal clearly gave detailed consideration to the relevant historical background of the 7year Rule, relevant caselaw and up to date statutory background in a way that the Court of Appeal in EV(Phillipines) did not do and on the facts of that case and as the law stood then, could not have done.
The common sense approach to distinguishing EV (Philippines )in the manner that the Upper Tribunal did is an approach most legal Practitioners have most likely been undertaking, however to have this clearly confirmed in a published judgement assists in making sense of consideration of claims under the 7year Rule.