The 7year Rule and parental misconduct: Overstaying, failed asylum claim and use of false documents not fatal to claim decides the Upper Tribunal

Despite the formalisation and introduction of the 7year provisions into the Immigration Rules, in practice the Home Office seem to abhor the very Rule that Government has entrenched into the legal framework.  Where applications placing reliance upon the 7year Rule are refused, at appeal, Home Office Presenting Officers rarely take issue with establishment of fact of the child’s UK residence itself but fervently seek to sustain an attack focused upon the parent’s past conduct and behaviour, with the intended result that the public interest in removal becomes stronger.

The ancestry of Paragraph 276 ADE (1)(iv) is well set out between paragraphs 8 to 17 of PD and others v Secretary of State for the Home Department [2016] UKUT 108 (IAC).   In PD, the Upper Tribunal clarified at Para 12 of their judgement “…….in applications for leave to remain based on Article 8 private life, it has not been sufficient for a child applicant to have accumulated seven years continuous residence in the United Kingdom. Rather, the applicant has also had to demonstrate that he or she could not reasonably be expected to leave the United Kingdom”.

A previous blog post, Children’s residence in the UK: Facets of the 7Year Rule, clarifies as follows:

It is important to note however that the following considerations can be taken into account by the Home Office or a Tribunal Judge  as relevant  when having  regard to the 7year Rule, in particular when applying the  “reasonableness  test”:

  • Parental misconduct taking the form of illegal entry, unlawful overstaying or illegal working
  • Private life formed or developed during periods of unlawful or precarious residence in the UK
  • The child’s best interests may be to remain in the UK, but they could be refused leave to remain, in particular in circumstances where their parents are taken to have shown a disregard of immigration laws, by remaining illegally in the UK

A parent’s adverse behaviour in the UK can therefore at times defeat reliance upon the 7year Rule however hope might lie in a recent Upper Tribunal decision which, very much like the case of PD, seeks to adopt a common sense approach in cases where a parent’s behaviour can be viewed as “run of the mill immigration offending”: MT and ET (child’s best interests; ex tempore pilot) Nigeria [2018] UKUT 88(IAC) (1 February 2018)

 

Summary Background:

MT, the mother and a Nigerian citizen arrived in the United Kingdom with ET, the daughter in July 2007. MT made several applications for leave to remain on Article 8 grounds, which were refused. At some point an appeal was dismissed by the First Tier Tribunal in January 2011.

MT then applied for asylum in 2011, which was refused and certified. Following a successful judicial review by the Home Office made a new decision, carrying an in-country right of appeal. ET appealed to the First-tier Tribunal and her appeal was dismissed by First-tier Tribunal Judge Baird in November 2012.

MT at some stage, received a community order for using a false document to obtain employment.

Further applications ensued, leading to the Home Office decisions in August 2016 to refuse the appellants’ human rights claims.   The appellants appealed to the First-tier Tribunal.  On 6 July 2017, their appeals were heard by Upper Tribunal Judge Martin, sitting in the First-tier Tribunal. She dismissed the appellants’ appeals in an oral (ex tempore) decision delivered at the hearing and subsequently reduced to writing. Permission to appeal was granted by the Upper Tribunal on 26 September 2017.

 

Why Judge Martin erred in dismissing the Appellants’ appeals:

  • It was noted that the appellants’ appeals were dealt with as part of the “Proof of Concept for the Extempore Judgment Pilot 2017”, in relation to which the relevant procedure was described by the Upper Tribunal.
  • The Upper Tribunal however was satisfied that Judge Martin fell into legal error, both as regards the way in which she conducted the Proof of Concept pilot hearing and otherwise. Before the Upper Tribunal, the Home Office Presenting Officer accepted that such errors had occurred.
  • The Proof of Concept letter and the directions issued with it made it clear that the Home Office was expected to identify the factual issues which, if determined in favour of the appellants, would lead to their appeals being allowed. The Upper Tribunal found that it was quite apparent from the Statement of Issues and Response of 15 May 2017, read with the reasons for refusal letter of 16 August 2016, that the Home Office case on Article 8 depended upon Judge Martin finding, as a fact, that ET’s best interests lay in moving to Nigeria with her mother.
  • The Upper Tribunal noted that importantly, there was no indication in the letter that the Home Office was seeking to support the case that, even if ET’s best interests now lay in remaining in the United Kingdom, the particular immigration history of MT was such that the Article 8 proportionality balancing exercise nevertheless fell to be struck in favour of the Home Office, on public interest grounds.
  • It should, therefore, have been apparent to Judge Martin on 6 July 2017 that the decision of the Home Office Presenting Officer to put before the Judge and to seek to rely upon the determination of First-tier Tribunal Judge Baird from 2012 represented a material shift on the Home Office’s part, from her stance as indicated in the Statement of Issues and Response of some seven weeks earlier.
  • The Upper Tribunal considered that it was nothing to the point that the “starred” case of Devaseelan v Secretary of State for the Home Department [2002] IAT 702 requires a judicial fact-finder to take a previous judicial finding of fact in respect of an appellant as the starting point for consideration of that appellant’s current case. Nor was it anything to the point that appellant MT and her advisers could be expected to know about the 2012 determination.
  • The approach taken by the Proof of Concept exercise depended upon the Home Office being willing to state to the First-tier Tribunal that, if certain matters were found in favour of the appellants, then the Home Office accepted that the appeal fell to be allowed. On the facts of the present case, that manifestly did not enable the Judge to embark upon a proportionality balancing exercise that placed weight upon (a) findings from 2012 regarding the reliability of ET’s evidence to Judge Baird; (b) the fact that MT had made “an unfounded asylum claim and was found to be a dishonest witness” in 2012; (c) that she had committed “an offence of fraud”; and (d) that MT had “neither mentioned the previous determination of Judge Baird nor did she mention her education qualifications”.
  • The Upper Tribunal stated that at the very least, what the Judge should have done was to consider whether, in the interests of the overriding objective, the Home Office should have been permitted to change her stance. There was no indication that she considered this point. Were she to have done so and to have decided to allow the Home Office to do so, then the appeal should have been removed from the Proof of Concept programme, so as to enable the appellants to have a fair opportunity of responding.

 

Reference to MA(Pakistan):

The Upper Tribunal noted what the Court of Appeal in MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705  had to say regarding parental conduct at Paragraphs 43 of that Court’s decision:

“But for the decision of the court of Appeal in MM (Uganda),…………I would have focused on the position of the child alone, as the Upper Tribunal did in MAB”,

And Paragraph 45,

However, the approach I favour is inconsistent with the very recent decision of the Court of Appeal in MM (Uganda) where the court came down firmly in favour of the approach urged upon us by Ms Giovannetti, and I do not think that we ought to depart from it. In my judgment, if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the “unduly harsh” concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)………It seems to me that it must be equally so with respect to the reasonableness criterion in section 117B(6), It would not be appropriate to distinguish that decision simply because I have reservations whether it is correct. Accordingly, in line with the approach in that case, I will analyse the appeals on the basis that the Secretary of State’s submission on this point is correct and that 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.

The Upper Tribunal also observed what the Court of Appeal stated in MA(Pakistan) at Paragraph 46,

“Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise”. Elias LJ then referred to the guidance of August 2015 in the form of Immigration Directorate Instructions entitled “Family Life (as a partner or parent) and Private Life: 10 Year Routes”. There, it is “expressly stated that once the seven years’ residence requirement is satisfied, there need to be ‘strong reasons’ for refusing leave (para 11.2.4)”,

And at Paragraph 49,

“However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child’s best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary.”

 

The Upper Tribunal’s considerations and conclusion:

Having found that Judge Martin’s decision contained errors which were such as to require the Upper Tribunal to set her decision aside, it was decided to proceed to re-make a decision in the appeal, noting that they were not bound by the constraints of the Proof of Concept process.

    • The Upper Tribunal found the fact that ET’s best interests did so lie in the United Kingdom to be manifest. In this regard, the Upper Tribunal agreed with and endorsed the FTT Judge’s findings on this issue in her decision.
    • The Upper Tribunal noted that ET had been in the United Kingdom for over ten years. She arrived in the when she was only 4. She was well advanced in her education in this country. As a 14 year old, she could plainly be expected to have established significant social contacts involving friends in school and outside (such as at church). She had embarked on a course of studies leading to the taking of GCSEs.
    • It was observed that ET had no direct experience of Nigeria. Whether or not there is a functioning education system in that country, her best interests, in terms of section 55 of the 2009 Act, manifestly lay in remaining in the United Kingdom with her mother rather than, as the Home Office contended, returning to Nigeria with her mother.
    • The Upper Tribunal however made it clear that a much younger child, who had not started school or who had only recently done so would have difficulty in establishing that her Article 8 private and family life has a material element, which lies outside her need to live with her parent or parents, wherever that may be. This position, however, changes over time, with the result that an assessment of best interests must adopt a correspondingly wider focus, examining the child’s position in the wider world, of which school will usually be an important part.
    • The Upper Tribunal concluded that this was why both the age of the child and the amount of time spent by the child in the United Kingdom will be relevant in determining, for the purposes of section 55/Article 8, where the best interests of the child lie.
    • It was made clear by the Upper Tribunal that on the present state of the law, as set out in MA, they needed to look for “powerful reasons” why a child who has been in the United Kingdom for over ten years should be removed, notwithstanding that her best interests lie in remaining.
    • The Upper Tribunal found that on the present case, there were no such powerful reasons. The Tribunal acknowledged that the public interest lay in removing a person, such as MT, who had abused the immigration laws of the United Kingdom. Although the Home Office Presenting Officer did not seek to rely on it, the Upper Tribunal took account of the fact that, as recorded in Judge Baird’s decision, MT had, at some stage, received a community order for using a false document to obtain employment. But, given the strength of ET’s case, MT’s conduct in the Upper Tribunal view came nowhere close to requiring the Home Office to succeed and the Presenting Officer did not strongly urge the Upper Tribunal to so find.
    • It was noted by the Upper Tribunal, that on the appellants behalf it was submitted that, even on the findings of Judge Martin, MT was what might be described as a somewhat run of the mill immigration offender who came to the United Kingdom on a visit visa, overstayed, made a claim for asylum that was found to be false and who has pursued various legal means of remaining in the United Kingdom. In response the Upper Tribunal stated that none of this was to be taken in any way as excusing or downplaying MT’s unlawful behaviour. The point was that her immigration history was not so bad as to constitute the kind of “powerful” reason that would render reasonable the removal of ET to Nigeria.
    • The Upper Tribunal found that the decision of the First-tier Tribunal contained a material error of law, set it aside that and substituted a decision of their own, allowing the appeals on human rights grounds (Article 8).

 

 

Conclusion

The decision of the Upper Tribunal is very much welcome and is one to most certainly rely upon in cases where the child’s parents have overstayed in the UK, made several unsuccessful claims or worked illegally in the UK.

Not intending however to put a damper on matters, it is important to observe that the particular facts relevant to MT and ET’s case are such that a Home Office Presenting Officer,  at appeal might be in a position to raise such facts with a view to distinguishing them from a particular instant case so as to convince a Tribunal Judge to dismiss an appeal:

  • The initial Judge could have made a finding that it was not in ET’s best interests to remain in the UK. Although Judge Martin ultimately found that it was reasonable to expect ET to go to Nigeria with her mother, she had however made a finding that ET’s best interests are clearly to live with her primary carer who is her mother and to be in the UK. … [ET] has been in the UK from the age of 4 till the age of 14 and has no memory of Nigeria. She is well integrated in school and socially”.  This finding enabled the Upper Tribunal to readily carry forth that finding, agreeing with and endorsing Judge Martin’s findings on this issue in her decision.
  • What also counted in ET ‘s favour was not just that she had resided in the UK for at least 7years but had in fact lived here for much longer. The Upper Tribunal noted her lengthy residence and observed to her favour that she had resided in the United Kingdom for over ten years( of course if she had been born in the UK and resided here continuously for 10years , she would have been eligible as a child to apply for registration as a British citizen).
  • The Upper Tribunal also observed that there was no indication in the refusal letter that the Home Office was seeking to support the case that, even if ET’s best interests now lay in remaining in the United Kingdom, the particular immigration history of MT was such that the Article 8 proportionality balancing exercise nevertheless fell to be struck in favour of the Home Office, on public interest grounds.  Increasingly however, most refusal letters do now rely upon a parent’s adverse immigration history and it is unlikely that currently Home office decision makers would omit inclusion of such adverse factors in cases where the 7year rule is concerned. The fact that the Home Office did not initially rely upon such matters however enabled the Upper Tribunal in MT to state at paragraph 23 of their decision, The stance of the Presenting Officer on 6 July 2017 was, we consider, analogous with the situation where the respondent seeks to withdraw a concession, previously made in appellate proceedings. In MSM (journalists; political opinion; risk) Somalia [2015] UKUT 413, the Upper Tribunal explained that a judge needs to adopt a broad approach to the issue of whether the respondent should be allowed to withdraw a concession. Amongst other matters, fairness to the litigant will need to be considered (paragraph 24). At the very least, what the Judge should have done was to consider whether, in the interests of the overriding objective, the respondent should have been permitted to change her stance. There is no indication that she considered this point. Were she to have done so and to have decided to allow the respondent to do so, then the appeal should have been removed from the Proof of Concept programme, so as to enable the appellants to have a fair opportunity of responding”.
  • The case of MA(Pakistan) can also be relied upon by the Home Office Presenting Officer to negative effect in particular having regard to paragraph 45 of that decision as it relates to the acceptance that, “the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the “unduly harsh” concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)…”   This also includes paragraph 47 of MA(Pakistan) which states, “Even if we were applying the narrow reasonableness test where the focus is on the child alone, it would not in my view follow that leave must be granted whenever the child’s best interests are in favour of remaining. I reject Mr Gill’s submission that the best interests assessment automatically resolves the reasonableness question. If Parliament had wanted the child’s best interests to dictate the outcome of the leave application, it would have said so. The concept of “best interests” is after all a well established one. Even where the child’s best interests are to stay, it may still be not unreasonable to require the child to leave. That will depend upon a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed he should return. What could not be considered, however, would be the conduct and immigration history of the parents”.
  • Following on from the above, a Home Office Presenting Officer might also rely upon the case of AM (Pakistan) & Ors v Secretary of State for the Home Department [2017] EWCA Civ 180 to negative effect. It was accepted by the Court of Appeal in AM(Pakistan) that the two teenage children relevant to the case,  were qualifying children who satisfied the seven year rule, and that the parents had a genuine and subsisting parental relationship with them. Notwithstanding that the children’s best interests were to remain in the UK, the First Tier Judge held that they should be refused leave to remain.  The reason was that their parents had shown a blatant disregard to the immigration law, choosing to remain illegally on the expiry of their visas. They did not seek to regularize their status for many years, and even when they did, they remained illegally in the country after their applications had been refused. It was noted that in reaching her conclusion the  FTT judge followed guidance given by the Court of Appeal in EV (Phillipines) and others v Secretary of State for the Home Department [2014] EWCA Civ 874 as to how the balancing exercise should be carried out.  On appeal, the Upper Tribunal was however satisfied that when properly construed, section 117B(6) and paragraph 276ADE(1)(iv) required the court to ask whether it was reasonable or not only from the point of view of the qualifying child.  On that analysis,  the Upper Tribunal concluded that the appeals of the two teenage boys had to succeed in the light of the findings of the FTT judge. The Court in AM(Pakistan) however concluded that it was bound by the decision in MA (Pakistan) as to the proper construction of the provisions in issue, and decided that necessarily it followed that the decision of the Upper Tribunal could not stand.

Overall, it is important to note that as regards the 7year Rule, on appeal the Tribunal will reach different decisions in individual cases, based upon different factual considerations having applied the relevant legal framework and principles arising out of established caselaw.  No two cases are alike.

 

 

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