The Secretary of State for the Home Department v Treebhawon and Ors

25. For the reasons explained in [8] – [10] above, the first ground of appeal succeeds. Accordingly, we set aside the decision of the FtT. The decision will be remade in this forum. Direction

26. The Appellant’s bundle of evidence, indexed and paginated, will be lodged with the Upper Tribunal and served on the Secretary State by 08 January 2016 at latest. Part 2: Remaking the FtT’s Decision

27. We remind ourselves of the composition of the family unit and to reflect the passage of time, certain updated data. Mr Treebhawon (“ the father ”) is aged 45 years and has resided unlawfully in the United Kingdom during the past 13 years. The mother of their four children, from whom he is separated, has not formed part of the family unit since 2008, the separation having begun and progressed some years previously. There are four children of the family: (i) The oldest child of the family, a girl now aged 18 years, has resided continuously in the United Kingdom during the past 9 years, having the status of unlawful overstayer during the bulk of this period. (ii) The second and third children, twins now aged 16, have resided in the United Kingdom during the past six and a half years, unlawfully throughout. (iii) The youngest child, now aged 13, has resided in the United Kingdom during the past five years, unlawfully during most of this period.

28. All five members of the family were born and reared in Mauritius, an island nation in the Indian Ocean which gained its independence from Britain in 1968 and is a member of the Commonwealth. It is a constitutional democracy. Its official languages, in sequence, are English and French, while Mauritian Creole is popularly spoken. It has a population of around 1.5 million. Since independence, Mauritius has progressed to a middle-income diversified economy based on tourism, textiles, sugar and financial services.

29. Mr Treebhawon, the father, had an active working career, both employed and self-employed, having previously studied to GCSE level, prior to departing Mauritius. Apart from GCSEs he has no special academic or vocational qualifications. While he has suffered ill health in the United Kingdom, he has been classed fit for work since 2013. The family has survived on publicly funded services (education et al ) throughout their sojourn in the United Kingdom.

30. Mr Treebhawon has sole responsibility for his four children. The family previously resided in the two bedroom home owned by his mother (now aged 76) in Mauritius. She continues to live in the same accommodation, assisted by a nephew, one of four children of Mr Treebhawon’s sister, all of them grown up and married. We find that this accommodation would be less than adequate by many standards if the family were to return to Mauritius. However, we further find as a probability that it would be available to them and they would resume living with the grandmother. The probability is that Mr Treebhawon would substitute for his nephew, a married man, who is providing some unspecified care to Mr Treebhawon’s mother. There is nothing to suggest that Mr Treebhawon could not provide this service. Nor did any of the evidence hint that the current arrangement involving the nephew is designed to continue long term.

31. Inevitably, there is substantial evidential focus on the four children. This is encapsulated in the following passage in their father’s witness statement: “ … My children have continuously attended school with an immaculate attendance record and have really flourished as young children. They receive excellent feedback from school and take part in many activities outside of school. My children have integrated into the United Kingdom society and community, they very much love the ties they have established within the United Kingdom and are very ambitious in respect of their future. I am proud to state that my children are all very intelligent and bright individuals. This is evident from the school reports, letters and certificates …. If given the opportunity, my children will take full advantage of their stay in the United Kingdom and have a valuable input into the United Kingdom community … I fear that should I have to return with my children then my children and I will have no future … This will greatly harm my children mentally, psychologically and emotionally as we all consider the United Kingdom to be our home … [and] … they may lose interest in education, in their future and their social wellbeing. ” It is abundantly clear that the family has been surviving on very limited means in the United Kingdom. In one part of the evidence there is a reference to “ excruciating financial difficulties ”. The survival and progress of the family are, in essence, due to a combination of publicly funded services, the determination and devotion of the father and the resilience of the children. The claims made in the father’s witness statement about the integration, educational achievements and general progress of the four children are unremarkable, were largely unchallenged and are confirmed by the bundles of documentary evidence, which we have considered.

32. We have also considered a not insubstantial tranche of evidence relating to the quality of life which the family would be likely to experience upon return to Mauritius. Much of this evidence proved to be uncontentious and it is unnecessary to rehearse it in any detail. Our assessment of this is as follows. In short, Mauritius has a functioning welfare benefits system. The benefits available include housing aid, social aid and unemployment benefit. There is state funded free education. There is a state funded health care system. Furthermore, there is a social housing programme. Much of this is summarised in a report adduced in evidence by the Appellants, thus: “ Mauritius is a free and democratic country and it inherited its system of Welfare State from the British. Everybody is entitled to free health care, free education up to university level in some cases and social security benefits to all who are eligible under the relevant legislation …. Mr Treebhawon would be entitled to claim Disability Allowance if it is confirmed by the Medical Board that his physical ability to undertake employment is not possible and his degree of disability is over 60%. He is also likely to be entitled to claim Social Aid but he cannot claim disability benefit and Social Aid currently …. Social Aid … is payable only where the income of a head of a household is not enough to meet the basic requirements of the members of the household … [and] … is payable to the poorer section of the population where the persons concerned are unable to earn a living … [and] … to abandoned spouses especially with dependent children. ” The evidence also points to the likelihood that Mr Treebhawon would qualify for unemployment benefit.

33. In addition to the above, we make the following evaluative predictions about the probable future for the family in the event of returning to Mauritius at this stage of their lives. First, the children will be educated. While adaptation and integration will not be immediate or initially comfortable, there are no indications that these will not be achievable. Second, all family members will be returning as nationals to their country of birth in which they were previously integrated in all material respects. While reintegration will not be immediate or initially comfortable, there are no indications that it will not be attainable, particularly having regard to the children’s linguistic abilities, and evident capacity for any further necessary learning in this respect and their resilience noted above.

34. Should they return to Mauritius life will, in general, be less comfortable and, initially, less enjoyable for the entire family. Mauritius and England, while having much in common, unsurprising given the island’s history, are not directly comparable. The panel is under no illusions: the family’s likely accommodation will be unsatisfactory, there will be no adult support other than that provided by the father and the family will struggle financially. However, albeit in a different environment and context, this, with certain adjustments, has been the reality of their lives in the United Kingdom. The educational achievements of the children in England augur well for their academic progress in Mauritius, the children are clearly resilient young people and the benefits of their English education will not be lost to them. Furthermore, certain State benefits and services will, in principle, be available to them.

35. At this juncture we turn our attention to the legal rules to be applied. It is common case that none of the children’s cases falls within the Secretary of State’s policies expressed in the leave to remain provisions of the Immigration Rules (“ the Rules ”). Their cases cannot satisfy the Rules. The proposition that the impugned decisions of the Secretary of State interfere with, substantially so, the private lives of all of the Appellants is incontestable. The legal question, in a nutshell, is whether such interference ranks as a disproportionate means of furthering the overarching public interest in play, namely the maintenance of firm immigration control. This public interest has, since 2014, had the imprimatur and weight of parliamentary endorsement via section 117 B (1) of the Nationality, Immigration and Asylum Act 2002 (“ the 2002 Act ”). This is not, however, the only public interest engaged in this appeal. Section 117 B (3) provides: “ It is in the public interest, and in particular in the interests of the economic wellbeing 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. ” We shall return to these public interests infra.

36. Mr Treebhawon is the only member of the family whose case might conceivably satisfy one of the Secretary of State’s Article 8 ECHR private life policies as expressed in the Rules. This is so by virtue of paragraph 276ADE(1)(vi), which provides in material part: “The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of the application, the applicant … has lived continuously in the UK for less than twenty years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK”. The question is whether there would be “ very significant obstacles ” to his reintegration in Mauritius: see paragraph 276 ADE(1)(vi) of the Rules. Being housed in the Rules, it ranks as a statement of the Secretary of State’s policy, to be contrasted with a legal Rule. Tribunals are enjoined to give considerable weight to such policy statements: Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 at [46].

37. The two limbs of the test to be addressed are “integration” and “very significant obstacles” . In Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 , the Court of Appeal held that “ integration ” in this context is a broad concept. See [14]: “ It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a Court or Tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day to day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life ”. The other limb of the test, “ very significant obstacles ”, erects a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context. The philosophy and reasoning, with appropriate adjustments, of this Tribunal in its exposition of the sister test “unduly harsh” in MK (Sierra Leone) [2015] UKUT 223 at [46] apply.

38. The finding that Mr Treebhawon’s case does not satisfy the test enshrined in paragraph 276ADE(1)(vi) of the Rules is readily made. If required to leave the United Kingdom, his future will lie in the country of his birth where he has spent most of his life (33 of his 46 years). He is an educated, evidently intelligent man with a command of all of the languages commonly used in Mauritius. He is plainly familiar with the culture of the country. There is no apparent reason why he will be unable to renew certain relationships and friendships and develop others. He has overcome ill health and is now fit for work, albeit we accept that finding employment will not be easy. He has maintained some contact with his mother and sister and we refer to our finding above that, as a matter of probability, he and his children will return to the mother’s home where they lived previously. In sum, the “very significant obstacles” test is not satisfied by some measure. It follows that no error of law has been committed on behalf of the Secretary of State in failing to find that Mr Treebhawon’s case satisfies this (or any) provision of the Rules.

39. The second legal test in play is to be applied to all five Appellants. In undertaking our search for this test, it is no exaggeration to observe that there is a proliferation of decisions of the Court of Appeal addressing the Article 8 test to be applied in the specific context of the deportation of foreign national offenders. These decisions begin with MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 , at [42] where, in a deportation context, the court formulated the test that where removal from the United Kingdom is resisted under Article 8 ECHR, outwith the Rules regime - “ .. something very compelling … is required to outweigh the public interest in removal. ” Further citation of authority in this context is otiose.

40. Before continuing the search for the governing principle in non – deportation cases, we consider it important to highlight a particular imperative. The fundamental importance of identifying the characteristics and conduct of the person against whom removal or deportation action is proposed courses through the veins of Part 5A of the 2002 Act and the growing jurisprudence in this field. It is one of the themes of the decision in Hesham Ali ( supra ), where, in [46], one finds an important distinction between foreign national offenders who have been punished by a custodial sentence of four years or more and those whose sentences belong to the bracket of twelve months to four years: “A custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender’s deportation almost always outweighs countervailing considerations of private or family life …. Great weight should generally be given to the public interest in the deportation of a foreign offender who has received a custodial sentence of more than twelve months … “. We discern a nuanced difference between these two public interest propositions. This differential approach is unsurprising, given the unequivocal statement in Part 5A of the 2002 Act , in section 117 C (2), that the public interest is greater in the cases of those who have committed more serious offences. We further draw attention to the unambiguous statement of principle in Part 1 of this judgment: see [19] above. All of this is traceable to the distinct categories of foreign national offender recognised by Parliament in the UK Borders Act (ss 32 – 33).

41. With the benefit of the above preface we resume the task of identifying the correct legal test to be applied in a context such as the present, where there is no element of criminality or deportation. Since 28 July 2014, the operative date of category Part 5A of the 2002 Act , the substantial jurisprudence which has developed both in this chamber and the Court of Appeal, has focussed mainly on cases involving the deportation of foreign national offenders. Cases belonging to the present stable have been somewhat eclipsed. In this context, it is of no little significance that in Part 5A of the 2002 Act Parliament has singled out foreign national offenders for special attention and treatment. There are “additional” considerations in their cases: per section 117 A(2)(b). In very brief compass, the hurdles in the way of foreign criminals who seek to resist deportation by invoking Article 8 ECHR are greater: they find themselves within a heavily circumscribed statutory regime containing elevated tests. Furthermore, in their cases the additional, freestanding public interest underpinning the deportation of foreign criminals is engaged, per section 117 C (1).

42. Those who adjudicate, practise, teach and study in this field may struggle to find a clear formulation of the Article 8 test applicable in a case such as this. First, the test is nowhere to be found in Part 5A of the 2002 Act – although certain indicators and guides can be identified. Second, the domination of cases involving foreign national offenders in the jurisprudence of the Court of Appeal has rather eclipsed the illegal entrant or unlawful overstayer who has been convicted of no offence.

43. There is a brief passage in Haleemudeen v SSHD [2014] EWCA Civ 558 at [44] suggestive of a test of “compelling circumstances”, though not decisively so. This lacuna in the jurisprudence of the Court of Appeal has, very recently, been addressed in Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803 . In this decision one finds clear recognition of the imperative highlighted above, namely the importance of identifying clearly the characteristics and conduct of the person against whom removal or deportation action is proposed.

44. Rhuppiah is the most recent notable contribution to a series of decisions of this chamber and the Court of Appeal addressing the novel and challenging provisions of Part 5A of the 2002 Act . It is essential to reproduce two important passages in full, given the present context. First, in [53] Sales LJ states: “Reading section 117 A(2)(a) in conjunction with section 117 B(5) produces this: "In considering the public interest question, the court or tribunal must have regard to the consideration that little weight should be given to a private life established by a person at a time when the person's immigration status is precarious". That is a normative statement which is less definitive than those given by the other sub-sections in section 117 B and section 117 C. 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 117 B(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 117 B(5) being applied in a manner which would produce results in some cases which would be incompatible with Article 8, i.e. is necessary to give proper effect to Parliament's intention in Part 5A; and a similar interpretation of section 117 B(4) is required, for same reasons”. Sales LJ continues at [54]: “In my view, reading section 117 A(2) and section 117 B(5) together in this way, as is appropriate, means that considerable weight should be given to Parliament's statement in section 117 B(5) regarding the approach which should normally be adopted. 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. That is a significantly higher threshold than was urged upon us by Mr Southey by reference to the London Oratory School case. There is a considerable difference between a statement by Parliament itself as to what the usual approach should be and the Diocesan guidance at issue in that case. The threshold to displace the ordinary rule in section 117 B(5) in the present context cannot be less than that to justify a decision not to follow statutory guidance as in the Munjaz case. Identification of the test as one of compelling circumstances differentiates the position in an appropriate way from that applicable in relation to foreign criminals, in relation to which a test of "very compelling circumstances" applies”. Here one finds the clearest statement in the Court of Appeal jurisprudence that the test to be applied in Article 8 private life cases not involving foreign national offenders is that of compelling circumstances .

45. Certain observations are apposite. First (and importantly in the present context), Parliament has chosen to devise distinct regimes for foreign offenders (on the one hand) and illegal entrants and unlawful overstayers (on the other). Moreover, the public interest engaged in the deportation of foreign national offenders is a variable, depending upon the individual case. Second, the recently promulgated decision of this chamber in Kaur (children’s best interests/public interest interfaces) [2017] UKUT 00014 (IAC) contains, at [22] – [24], a thesis on the words “ little weight” and the notional sliding scale which they entail. Kaur reasons that this produces the result that in some cases a private life developed during a period of unlawful or precarious leave in the United Kingdom may qualify for virtually no weight, whereas in others the quantity of weight to be attributed may verge on the notionally moderate where the assessment is that the particular case, with its individual traits and circumstances, belongs to the upper end of the “ little weight ” spectrum. We consider this complementary to, and not in conflict with, the ‘little weight flexibility’ approach espoused in Rhuppiah.

46. Ultimately, having regard to orthodox doctrine, the regime introduced by Part 5A of the 2002 Act is to be construed and applied in a manner which makes it sensible, intelligible and workable. As this Tribunal has observed previously, its structure and contents are, in certain respects, not altogether clear: see for example Deelah and Others [2015] UKUT 515 (IAC) at [19] – [22]. However, broadly, and as the decided cases since July 2014 have demonstrated, this discrete statutory regime can be made to work in a manner that is faithful to the discernible parliamentary purpose

47. We return to the question posed above: what is the legal test to be applied in a case such as the present? The answer, which we deduce from a combination of the governing statutory provisions and, in particular, the decision in Rhuppiah , is that these Appellants must demonstrate a compelling (not very compelling) case in order to displace the public interests inclining towards their removal from the United Kingdom. In formulating this principle, we do not overlook the question of whether the adverb “very” in truth adds anything to the adjective “compelling”, given that the latter partakes of an absolute flavour. It seems to us that the judicially formulated test of “very compelling circumstances” has been driven by the aim of placing emphasis on the especially elevated threshold which must be overcome by foreign national offenders, particularly those convicted of the more serious crimes, who seek to displace the potent public interests favouring their deportation. In contrast, immigrants such as these Appellants confront a less daunting threshold. Conclusion

48. We apply the governing legal test, as formulated above, to the salient facts and considerations characterising these appeals. In doing so, we would observe that this is not a judicial fact finding exercise. It is, rather, an exercise of evaluative judgement and assessment, to be undertaken on the basis of and by reference to material facts found and material facts that are uncontentious. We undertake this exercise on the basis that these appeals have been presented as, fundamentally, Article 8 private life cases. We concur with this approach. The family life which all five Appellants have enjoyed together for so many years is capable of being maintained: above all, the effect of the impugned decisions of the Secretary of State is to leave the family unit intact. Accordingly, on this dimension of Article 8, the threshold of interference is not overcome.

49. We give effect to section 117 B of the 2002 Act in the following way: (a) The starting point is that the maintenance of effective immigration controls is in the public interest. (b) There is no dispute about the English language abilities of any of the Appellants. (c) The Appellants are plainly not financially independent and owe much of their survival and progress in the United Kingdom to reliance on publicly funded services. (d) Given the nature of their status in the United Kingdom throughout their combined sojourns, the private lives which they have developed qualify for the attribution of little weight only. The case has not been made that any of their private lives is of a special or compelling character: and there is no evidence which would warrant this conclusion in any event.

50. Next, we are mandated by section 55 of the Borders, Citizenship and Immigration Act 2009 to give primacy to the best interests of the third, fourth and fifth Appellants as all are children. We consider that the best interests of these children will primarily be served by the maintenance of the family unit: as already noted, this will predictably occur. The second dimension of these three Appellants’ best interests is that, on balance, they would be better off in certain respects, in particular economically, if the family were to remain in the United Kingdom. This we must take into account in the balancing exercise as a primary consideration.

51. Our balancing of the salient features of the Appellants’ cases with the public interests engaged, all as set forth above, yields the conclusion that the public interests must prevail. The Appellants’ cases, in combination, unquestionably possess a certain appeal and various attractions. No reasonable or humane court or tribunal could, in our judgement, consider otherwise. Furthermore, we must accord a primacy of importance to that aspect of the third to fifth Appellants’ best interests identified above. However, we consider that the effect of contemporary immigration law is that this superficially seductive case falls short, measurably so, of overcoming the threshold necessary to demonstrate a disproportionate interference with private life rights under Article 8 ECHR. The most sympathetic view of the Appellants’ combined cases – which we have adopted – does not warrant any different conclusion in law. While we are mindful that the Article 8 private life claim of each of these Appellants has its distinctive personal features, given their different ages and circumstances, we find nothing to warrant a different conclusion in respect of any of the Appellants individually. Decision

52. We remake the decision of the FtT by dismissing the Appellants’ appeals. While as human beings we reach this conclusion without enthusiasm, as judges we do so without any real hesitation.

53. While the Tribunal is not required to determine the discrete issue of whether it would be disproportionate to require the removal of the four children concerned from the United Kingdom in the middle of the school year, we consider it appropriate to add that any argument to this effect would be a powerful one. The doctrine of proportionality has much in common with what is humane, sensible, measured and reasonable. It would be, as a minimum, surprising if the Secretary of State were to insist on the removal of this family from the United Kingdom prior to the end of the current academic year. Furthermore, such action would, predictably, generate further legal challenge with resulting – and pre–eminently avoidable - delay, expense and uncertainly to all concerned. THE HON. MR JUSTICE MCCLOSKEY PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Dates: 07 November 2015 [Part 1] 22 December 2016 [Part 2]