The president Peter Lane J has reconfirmed Elias LJ’s doctrine in MA (Pakistan) & Ors  EWCA Civ 705 (see here) that “powerful reasons” are necessary to remove a child with seven years residence in the UK. The mother (MT) and her daughter (ET) were from Nigeria and entered the UK in 2007 as visitors. ET was then aged four. They overstayed and repetitiously applied for leave to remain and made a series of applications relying on article 8 of the ECHR. After the last refusal, the First-tier Tribunal dismissed the appeal in early 2011. The mother then claimed asylum. Her claim was refused and certified. An in-country right of appeal was provided after a successful judicial review but the FTT dismissed the appeal in November 2012. New applications were raised and resulted in further decisions in August 2016 refusing MT and ET’s human rights claims. On further appeal, the FTT dismissed their claims. UTJ Martin gave an oral (ex tempore) decision delivered at the hearing in Manchester, reduced to writing afterwards. The cases were handled under the Proof of Concept for the Extempore Judgment Pilot 2017. The details were explained to the appellants by the tribunal and directions were given for paginated and indexed bundles to be filed and served and for the appellants’ skeleton argument to be included with their papers.
The directions were followed and the appellants’ skeleton argument alleged that their departure from the UK would inevitably result in breaches of the Immigration Rules, article 8 and section 55 of the Borders, Citizenship and Immigration Act 2009. MT said in her statement that the authorities had made no attempt to remove her and that her daughter was well attuned to life in the UK and knew nothing of Nigeria. ET stated in a handwritten note that in Nigeria she was beaten severely in school, owing to non-payment of school fees by her father. Her school in the UK described ET as a “generally a polite and thoughtful young lady who is making good progress in many areas” but concluded that she needed to concentrate more and stay focused to make progress in her studies. The Home Office opposed the appeal on the basis that both mother and daughter were unable to satisfy the terms of the Immigration Rules or freestanding article 8 outside the rules. It argued that they would be able to succeed only if the required standard of proof was met and that they would need to show that there would be very significant obstacles to her integration to Nigerian society.
Reliance was placed in the refusal letter and the real facts were to be settled by the FTT. The refusal stressed that at the date of her latest application ET had lived in the UK for eight years and nine months. She would be returning to Nigeria with her mother, “clearly the most important person in her life”. She would be able to re-adapt to life there by pursuing her studies in English, the official language in that country. Her best interests were to remain with her mother and this was best for her overall welfare. The Proof of Concept Pilot seeks to front load the appeals process with exchanges of evidence so as to identify issues at an early stage. The hearing was to be restricted to the identified issues. The reasons driving all this relate to saving time and money and identifying at an early stage appeals with prospects of success and to empower judges to give an extempore judgment on the day. The limited pilot intends to facilitate a full pilot in due course of time.
The First Tier Tribunal
Sitting in the FTT, UTJ Martin allowed the Home Office to rely on the FTT decision from 2012 in which Judge Baird made adverse credibility findings about the claim that ET’s father in Nigeria posed a risk of harm to her. Like the earlier tribunal, UTJ Martin thought that the mother was portraying an overly negative picture and that any claims about the father’s potential violence towards the daughter upon return fell to be disregarded.
UTJ Martin thought 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”. However, invoking MA (Pakistan), UTJ Martin interpreted section 117B(6) of the Nationality, Immigration and Asylum Act 2002 to mean that in determining what was reasonable, the issue is not solely to be looked at from the child’s perspective but requires a balancing exercise between what was in the public interest and what was in the interests of the child.
Overall, MT had a poor immigration history. She noted that MT had been a dishonest witness, she had been convicted of a criminal offence of fraud, and that she was a resourceful woman holding educational qualifications of substance. Her daughter ET’s residence of 10 years in the UK was a weighty factor but it was reasonable for her to return to Nigeria with her mother. Their appeals on the rules and article 8 were dismissed.
The Upper Tribunal
Peter Lane J and UTJ Lindsley were satisfied that the FTT had fallen into error in relation to conducting the Proof of Concept hearing and otherwise. The Proof of Concept letter and the directions were unambiguous that the Home Office was expected to identify the factual issues which, if determined in favour of MT and ET, would result in their appeals being allowed. The Home Office’s statement of issues and response, read in conjunction with the refusal, suggested that their case turned on the FTT finding, as a matter of fact, that the daughter’s best interests lay in moving to Nigeria with her mother.
Nothing was said about raising the argument that even if the daughter’s best interests lay in remaining in the UK, the mother’s immigration history warranted that the article 8 proportionality balancing exercise still fell to be struck in favour of the decision-maker, on public interest grounds. Therefore, for the FTT to have allowed the admission of the 2012 determination was dubious because it represented a material shift from the stance articulated in the statement of issues and response submitted seven weeks prior to the hearing.
The outcome in Devaseelan  UKIAT 00702 did not change this outcome notwithstanding that the “starred” decision 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. It did not matter that MT and her advisers could be expected to be aware of the 2012 determination.
The approach taken by the Proof of Concept exercise depended upon the Home Office being willing to state to the FTT that, if certain matters were found in favour of the mother and daughter, then the authorities accepted that the appeal fell to be allowed. With that in mind, the UT held that in the instant case that approach disempowered UTJ Martin to initiate a proportionality balancing exercise that accorded weight to (i) findings from 2012 regarding the reliability of ET’s evidence to Judge Baird, (ii) the fact that MT had made “an unfounded asylum claim and was found to be a dishonest witness” in 2012, (iii) that she had committed “an offence of fraud”, and (iv) that MT had “neither mentioned the previous determination of Judge Baird nor did she mention her education qualifications”.
The HOPO’s position during the FFT hearing was analogous with the situation where the Home Office seeks to withdraw a concession made previously in appellate proceedings. Applying MSM (Journalists: Political Opinion: Risk) Somalia  UKUT 413, judges need to adopt a broad approach to the issue of whether the respondent should be allowed to withdraw a concession. In that analysis, considering fairness to the litigant is important.
Minimally, UTJ Martin needed to consider whether in the interests of the overriding objective, the Home Office should have been permitted to change its earlier stance. Nothing pointed to the judge considering this issue. Had she done so and decided to permit the HOPO to rely on the 2012 FTT decision and withdraw the concession then the appeal should have been removed from the Proof of Concept programme so that the appellants could be allowed to have a fair opportunity of responding.
It was undisputed that the judge fell into error in the manner she handled ET’s evidence when she found that ET had been untruthful about her memory of her schoolteachers beating her because of her father’s refusal to pay her school fees. This untruthfulness was taken to reflect MT’s behaviour and strengthened the public interest in removing the mother. During the FTT hearing ET was present as a witness but she was not cross-examined by the Home Office and UTJ Martin also failed to question ET’s evidence about her fear of returning to the Nigerian school system. This failure constituted yet another error of law.
Peter Lane J and UTJ Lindsley set aside the FTT’s decision and remade the decision in line with MA (Pakistan) where Elias LJ acknowledged the strident decision of Laws LJ in MM (Uganda)  EWCA Civ 617 (see here) in relation to the “unduly harsh” test for foreign criminals but nevertheless preferred the more child centred approach articulated by the Upper Tribunal in MAB (USA)  UKUT 435 (IAT) where it was held that focus should be provided exclusively on the effect on the innocent child. In the instant proceedings, UTJ Martin too easily sacrificed the daughter’s best interests in the name of her mother’s faults. Equally, she flirted with the idea that the child would be able to rebuild relationships with family in Nigeria on the premise that children do after all change schools with their parents’ movements.
Elias LJ found that taken even at it lowest, a child’s seven years residence must be given significant weight when carrying out the proportionality exercise. Moreover, Immigration Directorate Instructions entitled Family Life (as a partner or parent) and Private Life: 10 Year Routes expressly state that once the seven years’ residence requirement is satisfied, “strong reasons” are needed to refuse leave. For Elias LJ, the fact of the child’s seven year presence in the UK needs to be given significant weight in the proportionality exercise because (i) of its relevance to determining the nature and strength of the child’s best interests, and (ii) it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary.
Peter Lane J and UTJ Lindsley were in different territory to the FTT as they were not bound by the limitations imposed by the Proof of Concept exercise. They found that it was “manifest” that ET’s best interests militated her remaining in the UK. She had been in the UK for 10 years, entering when she was only four. She was well advanced in her education here, having embarked upon her GCSEs. As a 14 year old she had established significant social contacts involving friends in school and outside in the community such as at church. Conversely, she had no links with Nigeria.
Irrespective of the fact that Nigeria has a functioning education system, section 55 exacted that ET’s best interests lay in remaining in the UK with MT rather than both of them returning to Nigeria. The case was distinguishable from a much younger child, yet to start school or who recently began school who will 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. The position develops with time. Resultantly, evaluating a child’s best interests must embrace a correspondingly wider focus, examining the child’s position in the wider world, of which school is usually an important part. Accordingly, both the child’s age and the amount of time spent by the child in the UK are relevant in determining, for the purposes of article 8 and section 55, where the best interests of the child lie. The presidential tribunal reminded us that:
33. On the present state of the law, as set out in MA, we need 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.
Repudiating the belief that the mother’s offending and poor history justified offsetting the strength of the child’s case, the UT acknowledged that there was no excuse for MT’s poor behaviour but nevertheless held that:
34. In the present case, there are no such powerful reasons. Of course, the public interest lies in removing a person, such as MT, who has abused the immigration laws of the United Kingdom. … The point is that her immigration history is not so bad as to constitute the kind of “powerful” reason that would render reasonable the removal of ET to Nigeria.
The UT applauded the drive to enhance efficiency under the Proof of Concept for the Extempore Judgment Pilot 2017. Giving extempore judgments increases efficiency but formally identifying and managing suitable cases in advance needs “careful handling”; especially where the appellant’s immigration history involves previous judicial decisions the parties must understand each other’s respective stances in respect of those decisions.
Human rights and protection claims involve FTT judges making a value judgment about removal causing a disproportionate interference with article 8 rights or a well-founded fear of persecution. The expansion of the Proof of Concept into a pilot project exercise would engender cases where the parties agree on the value judgment – but not on the facts – with the result that if the facts are found in the appellant’s favour, the Home Office will concede the appeal. Credible article 3 cases naturally fall into this cohort, as do matters where no dispute as to the facts exists but the parties disagree on the result of the application of the relevant value judgment – for example, whether removal would be a disproportionate interference with article 8.
As shown by the instant appeal, thought must be given to ensure that all the relevant facts are truly agreed. If immigration history is important in an appeal, this must be explained beforehand. Where neither the facts nor the result of applying the value judgment to the facts are agreed, the appeal will be unsuitable for a pilot project similar to the Proof of Concept.
Overall, the above principles were outlined by the UT in the following way:
(1) A very young child, who has not started school or who has only recently done so, will 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.
(2) The giving of ex tempore decisions furthers the aim of dealing with immigration and asylum appeals as efficiently as possible. But any formal attempt to identify and manage in advance those cases which may lend themselves to the giving of ex tempore decisions needs careful handling; not least to ensure procedural fairness.
The arrival of Peter Lane J at the helm as the president of the UT has marked a sea change in the style and language employed the former, arguably more flamboyant, president McCloskey J. Alas, no more shall we encounter curious terms such as “husbandry”, “sandwiched” and “rehearsed” in presidential determinations. Costs related judicial review determinations will not longer speak of “the plot” and quote from Hamlet. On the other hand, as the new president has shown in this determination, the Proof of Concept Pilot is an innovative development in tribunal proceedings and seeks to promote early evidential cooperation between the parties. Overall, given the lack of input in appeals by the Home Office – for example, non-attendance or weak preparation – it should prove advantageous for appellants who are in command of their cases and seek to win on a narrow issue.
Importantly, on 17-19 April 2018, the Supreme Court will hear the case of Pereira involving the correct approach to determining when it will be unreasonable to expect a non-British child who has been resident in the UK for seven or more years to leave the UK under 276ADE(1)(iv) of the Immigration Rules. Moreover, in IT (Jamaica), the court will also consider another important question regarding the weight to be given to the public interest when considering whether a refusal to revoke a deportation order against a foreign criminal would be “unduly harsh” on his British citizen child. Parental conduct also features on the list of issues. In NS (Sri Lanka) and Ors, parental conduct will be considered in relation to the reasonableness of expecting a child to leave the UK within the meaning of section 117B(6) of the 2002 Act. Finally, in KO (Nigeria), the court will also address the link between the public interest in deportation and parental misconduct when assessing whether the effect of deportation on a child (with whom the foreign criminal has a parental relationship) is “unduly harsh” under section 117C(5) of the 2002 Act and paragraph 399 of the Immigration Rules.