Is the Upper Tribunal seeking to break free from an overly statutory prescriptive approach in Article 8 Family Children Cases?

Posted on by Standard

The recent decision  of Kaur (children’s best interests / public interest interface) [2017] UKUT 14 (IAC) by Mr Justice McCloskey  makes very interesting reading.

Paragraph 31 of the Judgement refers: “ ……….Part 5A of the 2002 Act reflects the ever increasing prescription in Article 8 cases which has become one of the stand out features of modern immigration law, in both primary legislation and the Rules. It is evident that both Parliament and the executive have focused intensely on the Article 8 jurisprudence in their attempts to establish maximum codification. As the recent decision of the Supreme Court in Ali v Secretary of State for the Home Department [2016] UKSC 60 makes clear, the notion that a complete Article 8 code has been thus established is fallacious: per Lord Reed at [51] – [53] and Lord Wilson at [80]…”

Following the reader appreciating  and  grasping  the significance of the   several caselaw referred to within the judgement,  there seems  however an inescapable notion  that  Mr Justice Mccloskey  has spiced up his judgement  with  phrases hinting here and there    to a declarative intent   directing   First  Tier Immigration  Judges not to permit themselves to be unduly constrained  by an overly statutory prescriptive   approach in considering  Article 8  family children cases. Of note as employed within the Upper Tribunal  judgement:

 

  • blunt impact of section 117B(4) and (5) can be softened in an appropriate case;

  • “little weight” is not to be confused with “no weight”;

  • through the medium of permissible judicial statutory construction, there is some flexibility in the ” little weight” legislative instructions contained in section 117B (4) and (5) of the 2002 Act;

  • having regard to the words in parenthesis in section 117A (2) – ” (in particular)” – factors such as an affected child’s age, vulnerability and other personal circumstances may in principle be legitimately considered. Factors of this kind are clearly capable of counter balancing the ascription of little weight to private life developed during periods of precarious or unlawful immigration status;

  • The child’s best interests have a free standing character;

  • “sins of the parents” principle acknowledged by the Supreme Court in both ZH (Tanzania) and Zoumbas has survived the advent of Part 5A of the 2002 Act.

The following considerations and principles arise from the Judgment in Kaur:

Two stage test in Article 8 children cases:

First stage test: Is the child in question a qualifying child? The answer to that question is provided by applying the definition in section 117D (1) of the 2002 Act. The section makes provision for two possibilities. One is that the person, who must be under the age of 18, is a British citizen. The second is that the person has lived in the United Kingdom for a continuous period of seven years and is under the age of 18.  If neither of those possibilities applies there is no second stage.

Second stage test: If either does apply, the second stage involves giving effect to the test contained in Section 117B(6)(b) of the 2002 Act. This provision, expresses ” the public interest“,  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. “

The Upper Tribunal noted the absence of any accompanying list of factors to which regard must be had in determining what is ” reasonable“:- decision makers and Judges therefore in principle  have a wide margin of appreciation in this respect.

_________________________________________________________

Unlawfulness, precariousness, little weight and the   public interest:

It was put forward in Kuar, that the First Tier Tribunal erred in focusing on the precarious immigration status of the children.

The Upper Tribunal in Kaur considered  as follows:

  • In section 117B(4) and 117B(5) of the 2002 Act, Parliament distinguished between those who have formed a private life in the United Kingdom during an unlawful sojourn and during any period when their immigration status is precarious. Sections 117A and 117B, in tandem, mandate courts and tribunals which are determining proportionality issues under Article 8(2) ECHR to attribute little weight to a private life established by a person during any period of unlawful or precarious residence in the United Kingdom. This legal rule appears to have the effect, that while the child’s best interests have the status of a primary consideration, the private lives of parents and children developed during periods of precarious or unlawful residence in the United Kingdom are automatically and compulsorily given little weight. The statutory provisions embrace any person, irrespective of age, whose private life falls to be considered in any given case.

  • The Upper Tribunal queried what the relationship was between section 117B(4) and (5) and the policy statement in Section 117B(1): ” The maintenance of effective immigration controls is in the public interest.” The Upper Tribunal considered the correct analysis to be that in the new Part 5A regime, Parliament has clearly expressed the view that the efficacy of immigration controls would be undermined if a private life formed or developed during periods of unlawful or precarious residence in the United Kingdom were to attract anything other than little weight. Section 117B(4) and (5) are to be viewed in this light.

  • The Upper Tribunal considered that the phrase ” little weight” does not denote an absolute measurement or concept. While the intention underlying these statutory words is evident, ” little weight” is not to be confused with “no weight”. The measurement of ” little weight” is unlikely to be the same in every case. It will vary according to the particular context.

  • Part 5A of the 2002 Act ” … is framed in such a way as to provide a structured base for application of and compliance with Article 8, rather than to disapply it.” As per NA Pakistan v Secretary of State for the Home Department [2016] EWCA Civ 662, paragraph 26.   In considering the “Exception 1” and “Exception 2” provisions in section 117C(4) and (5), NA Pakistan drew attention to the importance of context at paragraph 31 : ” In terms of relevance and weight for a proportionality analysis under Article 8, the factors singled out for description in Exceptions 1 and 2 will apply with greater or lesser force depending on the specific facts of a particular case.“

  • The Upper Tribunal drew attention to Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, where the Court of Appeal examined the interaction of section 117A(2) and section 117C where the Court observed: “ It is possible to conceive of cases falling within section 117B(4) (unlawful presence in the UK) or section 117B(5) (precarious immigration status in the UK) in which private or family life (as appropriate) of an especially strong kind has been established in the host country such that it should be accorded great weight for the purpose of analysis under Article 8 : Jeunesse v Netherlands is a prime example.”, and ” But it should be noted that having regard to such considerations does not mandate any particular outcome in an Article 8 balancing exercise: a court or tribunal has to take these considerations into account and give them considerable weight, as is appropriate for a definitive statement by Parliament about a particular aspect of the public interest, but they are in principle capable of being outweighed by other relevant considerations which may make it disproportionate under Article 8 for an individual to be removed from the UK.”

  • The Court in Rhuppiah turned its attentions to the ” little weight” provisions in section 117B at paragraph 53: ” Although a Court or Tribunal should have regard to the consideration that little weight should be given to private life established in such circumstances, it is possible without violence to the language to say that such generalised normative guidance may be overridden in an exceptional case by particularly strong features of the private life in question, where it is not appropriate in Article 8 terms to attach only little weight to private life. That is to say for a case falling within section 117B(5) little weight should be given to private life established in the circumstances specified, but that approach may be overridden where the private life in question has a special and compelling character. Such an interpretation is also necessary to prevent section 117B(5) being applied in a manner which would produce results in some cases which would be incompatible with Article 8, ie is necessary to give proper effect to Parliament’s intention in Part 5A; and a similar interpretation of section 117B(4) is required, for the same reasons.” And paragraph 54, ” In my view, reading section 117A(2) and section 117B(5) together in this way, as is appropriate, means that considerable weight should be given to Parliament’s statement in section 117B(5) regarding the approach which should normally be adopted.” The paragraph continued;” In order to identify an exceptional case in which a departure from that approach would be justified, compelling reasons would have to be shown why it was not appropriate.”     The Court of Appeal distinguished the test of ” compelling circumstances” from that of ” very compelling circumstances“, applicable in relation to foreign criminals.

  • The effect of the above analysis considered in tandem with the decision in Rhuppiah, is that, through the medium of permissible judicial statutory construction, there is some flexibility in the ” little weight” legislative instructions contained in section 117B (4) and (5) of the 2002 Act. Tribunals must be alert to this in their conduct of proportionality balancing exercises, in particular in considering whether the factors on the public interest side of the scales outweigh those on the other side, especially where the tribunal’s assessment of a child’s best interests points to a course other than the removal or deportation of the person or persons concerned.

  • It was noted that in MA (Pakistan) [2016] EWCA Civ 705 Elias LJ, stated: ” Accordingly, when making that assessment, it would be inappropriate to treat the child as having a precarious status merely because that was true of the parents.” The best interests of any affected child constitute a free standing factor and should properly be assessed before the proportionality balancing exercise is carried out. This exercise will be vulnerable to challenge if the child’s best interests have not, first and foremost, been adequately and correctly assessed. Any issues of unlawful or precarious immigration status or parental misconduct have no role to play in this assessment. Such issues do, however, arise at the stage of completing the “balance sheet” advocated by Lord Thomas in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60. Issues of this kind are plainly relevant and they belong to the public interest side of the balancing equation.

  • In MA (Pakistan) [2016] EWCA Civ 705, the court made clear that in the particular case of a “qualifying” child [ sections 117B (6) (a) and 117C (5)] “strong” or “powerful” reasons are required to outweigh the child’s best interests, as assessed.

______________________________________________________________

Case of Zoumbas: parental misconduct and  “Sins of the Parents” principle:

It was argued on behalf the Appellants in Kaur that the First Tier Tribunal erred in law having regard to the statement of the Supreme Court in Zoumbas v SSHD [2013] UKSC 74 that a child should not be blamed for matters for which it is not responsible, such as the conduct of a parent.

The Upper Tribunal stated  that parental misconduct typically takes the form of illegal entry, unlawful overstaying or illegal working.

Reference was made to the decision of the Supreme Court in Zoumbas for the code of seven principles formulated by Lord Hodge. Relevantly, the seventh principle is expressed in the following terms: “A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent”.

The Upper Tribunal considered as  follows:

  • The assessment of a child’s best interests must focus on the child, while simultaneously evaluating the reality of the child’s life situation and circumstances. Factors such as parental immigration misconduct must not intrude at this stage. This requires care and discipline on the part of decision makers and Judges. The child’s best interests, once assessed, are an important component of the overall proportionality balancing exercise. However, they have a free standing character. Avoidance of error is likely to be promoted if the best interests assessment is carried out first. Factors of parental misconduct may legitimately enter the equation at a later stage of the overall proportionality balancing exercise as they are clearly embraced by the public interest in the maintenance of immigration control. This is the stage at which a child’s best interests, though a consideration of primary importance, can potentially be outweighed by the public interest.

  • In every case of this kind, there is an Article 8(2) proportionality balancing exercise to be performed. At the outset of the exercise, the scales are evenly balanced. The exercise is then performed by identifying all material facts and considerations and attributing appropriate and rational weight to each. The best interests of an affected child feature in the balancing exercise. It is incumbent upon the court or tribunal concerned to make an assessment of those interests. The balance must then be struck, treating the child’s best interests as a primary consideration. As these do not have the status of the primary consideration they are capable of being outweighed by other public interest factors, singly or cumulatively, in any given case. If the “sins of the parents” principle has the unwavering potency which the Appellant’s amended ground of challenge in substance advances, Zoumbas would have been decided differently.

  • The Upper Tribunal however observed at paragraph 40 of the judgement in Kaur, that an outcome for a family which has a prejudicial impact upon a child member is not incompatible with the seventh principle of the Zoumbas code. Where, in any given case, the evaluation of parental immigration misconduct in the balancing exercise contributes to a conclusion which will involve the entire family unit departing the United Kingdom, this does not amount to blaming the children. Critically – absent some other vitiating factor – the assessment of the best interests of the children, always most aptly carried out at the beginning of the overall exercise, will be unassailable in law provided that the factor of parental misconduct has not intruded at that stage.

__________________________________________________________

Sins of the parent Principle and Part 5 of the 2002 Act:

The following arose in Kaur:

  • The Upper Tribunal observed that ZH (Tanzania) and Zoumbas were both decided prior to the advent of the Immigration Act 2014 and the commencement of the new Part 5A of the 2002.

  • The Upper Tribunal considered that the question of whether the ” sins of the parents” principle acknowledged by the Supreme Court in both ZH (Tanzania) and Zoumbas had survived the advent of Part 5A of the 2002 Act. It was considered that the burial, or adjustment, of this principle, which would have been achievable by a simple drafting mechanism, is nowhere reflected in the legislative language. Further, as emphasised in the decisions of the Tribunal in Forman (ss 117A-C considerations) [2015] UKUT 412 (IAC) and Miah (section 117B NIAA 2002 – children) [2016] UKUT 131 (IAC) , the words in parenthesis in Section 117A(2) – ” (in particular)” – have the clear effect that courts and tribunals are at liberty to take into account, where material, considerations other than those enumerated in Sections 117B and 117C. It was also considered that in the Part 5A regime there is a clearly discernible legislative intention to confer on children special levels of protection.

  • The significance in the present context of Part 5A of the 2002 Act and section 117B (6) in particular was that Parliament, in enacting the new regime, focused special attention on children and, in doing so, had the opportunity to make explicit provision for the weight to be attached to the parental immigration misconduct issue embedded in the seventh of the principles compromising the Zoumbas code: it did not do so.

  • As the decision in Hesham Ali makes clear, the fundamental task for tribunals in appeals involving recourse to Article 8 of the Convention is, having made appropriate findings of fact, to identify the public interest engaged, to correctly measure its strength and, ultimately, to determine whether the private and family life factors advanced by the appellant outweigh the public interest to the extent that the impugned decision is disproportionate. While this is the general approach, in the particular context of deportation the public interest is especially potent and will be outweighed only by an Article 8 claim which is ” very strong indeed – very compelling“. Furthermore, in all cases the tribunal will give appropriate weight to the decision maker’s reasons for the proposed course of action

__________________________________________________________

Unduly harsh provisions in Section 117C(5) of the 2002 Act  and the 7year Rule:

The following was observed by the Upper Tribunal in Kaur:

  • In MM (Uganda) v SSHD [2016] EWCA Civ 450 the Court of Appeal decided that the application of the ” unduly harsh” provision in Section 117C(5) of the 2002 Act involves a balancing of the wider public interests, encompassing all the circumstances including in particular the immigration and criminal history of the parent concerned.

  • In MA (Pakistan) [2016] EWCA Civ 705, the Court of Appeal held, with significant reservations, that the effect of being bound by MM (Uganda was that the correct approach to Section 117B(6) should mirror the approved approach to Section 117C(5). Thus the Secretary of State’s argument that Section 117B(6) does not focus exclusively on the best interests of an affected child but embraces also the public interests prevailed. This argument, notably, acknowledged that the fact of seven years’ residence in the United Kingdom of an affected child qualifies for significant weight. Thus, the court held“… The only significance of Section 117B(6) is that where the seven year Rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted”.

__________________________________________________

Recurring challenges faced by First Tier Tribunal Judges: Quality Judgement writing and structure:

The Upper Tribunal emphasized as follows in Kaur:

  • Having regard to the recent decision in Hesham Ali and to the recurring challenges encountered by judges at the first tier of decision making in immigration appeals, it is appropriate to highlight the short concurring judgment of Lord Thomas LCJ. This emphasises the importance of making clear findings on material issues of fact. The next requirement on Judges is to ” set out in clear and succinct terms their reasoning“. Lord Thomas advocated the adoption of the “balance sheet” approach. It involves the identification of the material facts and factors belonging to the two basic sides of the equation. This serves as a timely reminder to First-tier Tribunal Judges to continue doing what one already finds in the strongest judgments. The final element of this exercise requires the Judge to:” … set out reasoned conclusions as to whether the countervailing factors outweigh the importance attached to the public interest in the deportation of foreign offenders.“

  • The proposition that adherence to these disciplines in judgment writing will enhance the end product is incontestable. The resulting benefits will include not only higher quality judgments. They should, in principle, extend to fewer grants of permission to appeal to the Upper Tribunal and fewer remittals to the First-tier Tribunal.

______________________________________________________

Conclusion:

On the one hand, it is  welcome that the Judgment in Kaur acknowledges the  challenges faced by First Tier Tribunal Judges in the consideration of   immigration  appeal  cases.  Better  quality structured judgements   clearly  also inspire more  confidence in  decisions of Judges at first tier level.  On the other hand, it is  however surprising  in both Hesham Ali and Kaur that  the desirability of the  importance  of quality  judgements should be so set  out almost by way of  public  supervisory reproof– surely judgment structure and quality is something that Judges are privately “trained” on at some initial stage or on a regular continuing  basis but away from the public eye. It is doubtful in any  case that  permission to appeal can be granted alone on the basis that  a Judge has produced an unstructured  judgement. The Secretary of State for the Home Department v JZ (Zambia) [2016] EWCA Civ 116 refers:

 

“37. I am bound to accept that the First-tier Tribunal’s decision is not a model of its kind. It is neither well structured nor easy to follow. Findings of fact are dotted around in no very logical order, interspersed among observations about the law. Furthermore the legal analysis is somewhat discursive. It would have been easier for the Tribunal, and it would certainly be easier for the reader, if all findings of fact were set out together in a coherent order. It would also be better if the Tribunal had set out the relevant legal principles in one place and then applied them to the facts as found.

38. Despite those shortcomings, I am satisfied that the tribunal did apply the correct legal principles”.

Despite the issues raised in Kaur and the liberal approach applied as regards to the relevant principles, it is noteworthy however that on the facts, the appeal in Kaur failed despite there appearing to be a qualified child. This was on the basis that properly and fairly analysed, the decision of the First Tier Tribunal  neither infringed the seventh principle of the Zoumbas code nor contravened the approach espoused in MA (Pakistan. The initial judge  was considered to have focused particularly on the issues of where the children had been born, their lack of British citizenship, the strength of their ties with the United Kingdom and whether it would be reasonable to expect them to accompany their parents upon departing the United Kingdom. There was no identifiable blemish in this approach. The Upper Tribunal in Kaur considered  that in the judicial exercise being conducted, the principal error of law to be avoided was that of permitting the issue of parental misconduct to intrude at the stage of assessing the children’s best interests. The First Tier Tribunal Judge  avoided this error. The remainder of the balancing exercise, reading the decision as a whole, was considered to be unimpeachable.

 

 

 

 

Leave a Reply