PB (Bangladesh) v Secretary of State for the Home Department

In an Article 8 immigration case, a policy indicating that removal will normally be inappropriate after seven years’ residence by a child does not create an automatic presumption in the applicant’s favour. The decision-maker must consider whether the policy applies in the circumstances, including relevant immigration history and deception, and must not assume consistent favourable application without evidence or concession. An appellate tribunal may make its own decision after finding a material error where the factual material is sufficient. Its reasons need not mention every matter expressly if, read fairly, they show that the relevant circumstances were considered and explain why removal is proportionate.

The applicant, a Bangladeshi national, sought leave to remain in the United Kingdom after entering unlawfully. Her daughter, a British citizen, had lived in the United Kingdom for seven years. An immigration judge concluded that removal would breach Article 8, relying on Home Office policy DP5/96. The Asylum and Immigration Tribunal ordered reconsideration, found a material error of law in the treatment of the policy, and substituted a decision dismissing the applicant’s appeal. Permission to appeal was refused below. The applicant renewed her application, alleging inadequate consideration of the policy, family circumstances and the need to adjourn or remit. The central issue was whether the Tribunal had materially erred in law.

1. Application refused. The Court of Appeal held that the Asylum and Immigration Tribunal was entitled to find a material error in the immigration judge’s Article 8 proportionality assessment. The presenting officer had submitted that the seven-year policy did not apply, and there was no concession or evidence that the Secretary of State applied it consistently in cases with the applicant’s characteristics.
2. The policy’s apparent presumption against removal after seven years’ residence by a child was not automatically applicable. The applicant’s unlawful entry and deceptive omission of her daughter from her application were relevant circumstances capable of displacing any favourable presumption.
3. The Tribunal’s reference to the daughter as having entered unlawfully was arguably wrong because she was a British citizen, but the error was immaterial. The Tribunal was entitled to rely on the applicant’s own unlawful entry and the deceptive omission in assessing proportionality.
4. The Tribunal’s reasons were adequate. Although it did not expressly set out every matter relied on by the applicant, its decision referred to firm family links in the United Kingdom and showed that it had considered the child’s residence and the policy. A tribunal need not spell out every relevant matter where its reasons, read fairly, demonstrate that the matters were considered and support the conclusion reached.
5. The Tribunal was entitled to substitute its own decision. It was not required to adjourn or remit the matter merely because the original reasoning could have been fuller or because further consideration by the Secretary of State was proposed. Lord Justice Carnwath agreed, observing that there was no basis for interference with the decision of the experienced Tribunal.

• Court of Appeal (Civil Division): The renewed oral application for permission to appeal was refused because the proposed appeal had no real prospect of success.
• Asylum and Immigration Tribunal, AIT No. TH/01198/2006: The Tribunal ordered reconsideration, found a material error in the immigration judge’s Article 8 assessment, substituted its own decision and dismissed the applicant’s appeal.
• Immigration judge: The judge found that removal would interfere with family life and would be disproportionate, relying on Home Office policy DP5/96 and the child’s seven years’ residence in the United Kingdom.