Case No. UKUT-00515-(IAC)

, 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). ” Section 117B, embraced by the cross heading “Article 8: Public Interest Considerations Applicable i n A ll C ases”, provides: “ (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 p erson 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. ” The subject matter of section 117C is “ Article 8: Additional Considerations I n C ases I nvolving Foreign Criminals ”. Section 117C does not arise for consideration in these appeals. 4. The trigger for the application of the various provisions assembled in Part 5A of the 2002 Act is a decision “ made under the Immigration Acts ”. These latter words are defined in section 61 (2) of the UK Borders Act 2007: “A reference (in any enactment, including one passed or made before this Act) to “the Immigration Acts” is to– (a) the Immigration Act 1971, (b) the Immigration Act 1988, (c) the Asylum and Immigration Appeals Act 1993, (d) the Asylum and Immigration Act 1996, (e) the Immigration and Asylum Act 1999 [cf section 10: removal directions] , (f) the Nationality, Immigration and Asylum Act 2002, (g) the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19), (h) the Immigration, Asylum and Nationality Act 2006 (c. 13) , (i) this Act, and (j) t he Immigration Act 2014.” I w ould also mention two material provisions of the Human Rights Act 1998. First, by virtue of section 1 and Schedule 1 to the Act, one of the Convention r ights p rotected under domestic law is Article 8. Se cond, by section 6(1) : “ It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” This completes the statutory framework relevant to this appeal. T he First Issue 5. I s the application of sections 117A and 11 7B of the 2002 Act confined to an appeal under section 84(1)(c)? The argument of Mr Malik on behalf of the Appellant drew attention to the cluster of statutory provisions formed by sections 82, 84 and 86. He linked the words “ is required to determine ” in section 117A to the words “ must determine ” in section 86(2). He also sought to forge a nexus between section 117A(1)(b) and section 84(1)(c). He contended that the exercise of considering all of the provisions belonging to the statutory context in play impels to an affirmative answer to the question posted above. It was further submitted that the criteria enshrined in paragraph 276ADE and Appendix FM of the Immigration Rules are clear and objective, leaving no scope for applying the section 117B considerations. 6. It was further argued that i n cases of the present kind it is not the Secr etary of State’s decision to remove a person from the United Kingdom which is challenged on Article 8 grounds: rather, it is the consequence of the decision, or the further action taken via removal directions , which is objectionable. Mr Malik submitted that t he construction for which the Appellants contend is not undermined by either Dube (Sections 117A – 117D) [2015] UKUT 90 (IAC) or YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292. It was also argued that the language of the new section 84, deriving from section 15 of the 2014 Act, points to a consistent i ntention on the part of Parliament. Finally, Mr Malik prayed in aid the following passage in Forman (ss 117A-C – considerations) [2015] UKUT 00412 (IAC) , at [17](i): “ These provisions (sections 117A and 117B) apply in every case where a Court or Tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8 ECHR and, as a result, would be unlawful under section 6 of the Human Rights Act 1998. Where a c ourt or t ribunal is not required to make this determination, these provisions do not apply. ” As a result, Mr Malik argued, the FtT erred in law in applying sections 117A and 11 7B in determining these appeals. 7. The submissions of Mr Sheldon on behalf of the Secretary of State , primarily, drew attention to the differing ways in which the Appellants’ appeals were canvassed before the FtT. This was due to the differing circumstances of the two children and the distinctive circumstances of their parents. Thus while section 55 of the Borders, Citizenship and Immigration Act 2009 was invoked, this applied to the younger child only; paragraph 276 ADE of the Rules applied to the children, but not the parents; paragraph 276 ADE(1)(iv) applied to the older child, but not the younger one in whose case the relevant provision was paragraph 276 ADE(1)(vi); and paragraph EX.1 of Appendix FM applied to the parents and the older child, but not the younger one. Mr Sheldon observ ed that i t would appear that all of the Appellants asserted the existence of individual private lives in the United Kingdom. Moreover, the older child has a girlfriend in the United Kingdom (who testified) and the mother’s father is a British citizen. Mr Sheldon submitted that, notwithstanding these differences and variations, the main question for the FtT was whether it was reasonable to expect the family to return to Mauritius. This is reflected in the key conclusion in [61] of the determination: “ For the reasons stated above there is no reliable evidence to demonstrate that it would be unreasonable to expect the third or fourth Appellants to return to Mauritius. ” It is appropriate to observe that t he substance of this conclusion is unchallenged on behalf of the Appellants . 8. Next, Mr Sheldon drew attention to the consonance of language found in paragraph 276 ADE(1)(iv) of the Rules (“ and it would not be reasonable to expect the applicant to leave the UK ”) and section 117B(6)(b) of the 2002 Act (“ it would not be reasonable to expect the child to leave the United Kingdom ”) and paragraph EX.1(ii) (“ it would not be reasonable to expect the child to leave the UK ”). Mr Sheldon submitted that within [64] of the FtT’s determination there are two distinct and perfectly valid conclusions: (a) i t would not be unreasonable to expect the family and the older child in particular to return to Mauritius; and (b) t he Appellants’ lack of financial independence was a factor which operated to their detriment. Mr Sheldon argued that t he first of these conclusions disposed of the appeal under the Rules. In making this conclusion the FtT applied section 117B(6) and section 117D(1)(b). 1 It was further submitted that i n making the second of these conclusions, which weakened the Article 8 appeal, the FtT applied section 117B(3). Properly analysed, Mr Sheldon argued, the FtT applied sections 117A and 117B to the Article 8 grounds of appeal, but did not do so in conducting the separate exercise of deciding whether the Secretary of State’s decision was in accordance with the Rules. This notwithstanding that in this particular case both the Rules and the Act require the FtT to ask, and determine, the same question. 9. Pausing at this juncture, I find Mr Sheldon’s analysis of the determination of the FtT persuasive. It flows from an evaluation of the determination as a whole and does not rely on forensic microscopic dissection. Furthermore, it was not really countered in the arguments of Mr Malik. I further agree with Mr Sheldon’s alternative submission. This was to the effect that even if the Appellants’ construction of the relevant statutory provisions is correct and the FtT made the error asserted the net effect would have been the adoption of three (rather than two) separate routes to the same de s tination, namely paragraph 276 ADE of the Rules , paragraph EX.1 thereof and sections 117B(6) and 117D(1)(b) in tandem. As a result, the outcome of the appeals would have been no different. 10. It follows that this ground of appeal must fail. Notwithstanding, given the full argument on the issue and the special listing status of this appeal, I consider it appropriate to examine the issue of statutory construction which formed the centrepiece of this ground. The argument on behalf of the Secretary of State is that sections 117A – 117D of the 2002 Act apply to appeals brought under both section 84(1)(c) and (g). In my judgment, this submission is correct. Fundamentally, it is compatible with the ordinary and natural meaning of the statutory words. Furthermore, it yields an unremarkable and perfectly workable outcome, harmonious with the other elements of the statutory framework. In contrast, I consider the construction advanced on behalf of the Appellants to be strained and distorted. In my view there is no sensible distinction between an Article 8 assessment in an appeal pursued under section 84(1)(c) and an Article 8 assessment in an appeal pursued under section 84(1)(g). The principles governing the Article 8 assessment must, in each case, be the same. Article 8 does not possess the chameleon character which these arguments require. Logic and common sense dictate this construction. 11. Furthermore, while it is correct that i n a section 85(1)(c) appeal the focus is on the immigration decision under challenge and i n a section 84(1)(g) appeal the focus is on removal of the Appellant from the United Kingdom in consequence of the immigration decision under challenge , I consider this to be of no moment . If Parliament had intended to make the distinction advanced by the Appellants, one would expect to find explicit and unambiguous words to this effect. There are none. In addition, I offer the observation that while this discrete issue was not ventilated in argument, it is unclear whether this distinction could have been legitimately made in any event without, simultaneously, amending the Human Rights Act 1998 , which, per section 6, makes it unlawful for a public authority to act in a manner incompatible with a person’s protected Convention rights. 12. My conclusions on the issue of statutory contribution raised by the first ground of appeal are, therefore, twofold. First, assuming the underpinn ing of this ground to be sound , the FtT did not commit the error of which the Appellants complain. Second, this ground is based on a construction of the relevant statutory provision s which I consider misconceived and, accordingly, lacks the underpinning assumed to be correct for the purpose of the first of these conclusions. The Second Issue 13. Do section 117B(4) and (5) oblige Tribunals, without choice or discretion, to attribute “ little weight ” to the considerations specified therein? The argument developed by Mr Malik is that Article 8 ECHR forms part of domestic statutory law and it is the duty of c ourts and t ribunals to interpret it like any other statute and give effect to it according to what they consider to be its proper meaning: see the discussion in Re P [2008] UKHL 38, at [33]. This is a principle which reflects the rule of law , one of the axioms whereof is that statute law be mediated by an authoritative judicial source independent of the legislature, the e xecutive and the public authority which administers the statute: see R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin) at [36] – [38]. Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law: see R (Evans) v Attorney General [2015] UKSC 21, at [51] – [59]. 14. The next step in the Appellants’ argument involves the proposition that it is for the c ourt or t ribunal concerned to decide the issue of proportionality under Article 8(2) ECHR. In performing this function the c ourt or t ribunal decides how much weight is to be attributed to competing considerations in determining how the balance should be struck between the public interest and protected individual rights: see inter alia , Huang v Secretary of State for the Home Department [2007] UKHL 11 and EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41. The doctrine of judicial pre cedent requires lower c ourts and t ribunals to follow binding authorities of superior Courts. As a result, section 117B(4) and (5) does not require the c ourt or t ribunal concerned to ascribe “ little weight ” to the matters specified therein. Rather, it is argued that what appears to be a clear and strict instruction to the c ourt or t ribunal can effectively be ignored, with the result that the Judge is unconstrained in deciding how much weight to accord to each of the listed considerations. 15. The riposte of Mr Sheldon on behalf of the Secretary of State is that the meaning of section 117A(2) is unambiguous: in conducting the Article 8(2) proportionality assessment the c ourt or t ribunal concerned must have regard to the specified considerations. There will be no obligation to do so in cases where the considerations do not arise. The “ little weight ” provisions in section 117B(4) and (5) are the statutory incarnation of principles well established in both the domestic and Strasbourg jurisprudence. These are conveniently summarised in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin), at [38] – [41]. Section 117B(5) in effect operates as a reminder to c ourts and t ribunals of a principle which, irrespective of its recent incorporation in statute, they would be obliged to apply in any event. Finally, Mr Sheldon submitted that this issue of construction arises in a vacuum, given that in dismissing the appeals the FtT did not decide that little weight should be given to either of the matters specified in section 117B(4) and (5). 16. It is convenient to address this latter argument first. In short, I find it persuasive . The central issues for the FtT were whether it would be reasonable to expect the younger child to return to Mauritius and whether there were any insurmountable obstacles to the reintegration in Mauritius of the other three Appellants. I have rehearsed in [ 4 ] and [5] above the relevant provisions of both Part 5A of the 2002 Act and the Rules. I have concluded that the FtT did not engage in any impermissible elision. Furthermore, there is no adverse “precariousness” finding in its determination. The only provisions of Part 5A considered by the FtT were section 117B(3) and (6). It follows f ro m this analysis that, in my judgment, Mr Sheldon’s submission is to be accepted. The construction of sections 117A and 117B urged on behalf of the Appellants simply does not arise having regard to the provisions of Part 5A which the FtT considered and its ensuing findings and conclusions. 17. While the second ground of appeal must, therefore, fail, given the fullness of argument on the statutory construction issue I would add the following. First, I reiterate what this Tribunal said in Forman , at [17]: “ We consider the correct analysis of sections 117A and 117B to be as follows: (i) These provisions apply in every case where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8 ECHR and, as a result, would be unlawful under section 6 of the Human Rights Act 1998. Where a Court or Tribunal is not required to make this determination, these provisions do not apply. (ii) The so-called “public interest question” is “the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).”, which appears to embrace the entirety of the proportionality exercise. (iii) In considering the public interest question, the court or tribunal must have regard to the considerations listed in section 117B in all cases : per section 117A(1) and (2). (iv) In considering the public interest question in cases concerning the deportation of foreign criminals, the court or tribunal must have regard to the section 117B considerations and the considerations listed in section 117C. (v) The list of consid erations in sections 117B and 11 7C is not exhaustive: this is clear from the words in parenthesis “(in particular)”. (vi) The court or tribunal concerned has no choice: it must have regard to the listed considerations. ” The next passage in Forman foreshadows to some extent the issue raised under the banner of this ground of appeal: “ While the court or tribunal is clearly entitled to take into account considerations