AN (Afghanistan) & Ors v Secretary of State for the Home Department

In an Article 8 proportionality assessment, the fact that removal would make a child’s life more difficult, or that the child’s best interests favour remaining in the United Kingdom, does not determine the outcome. Under section 55 of the Borders Citizenship and Immigration Act 2009, the child’s best interests are a primary consideration, but they may be outweighed by the need for firm and fair immigration control. The tribunal must assess all relevant circumstances, including the child’s circumstances, family life, connections with the receiving country and the strength of the immigration case. Detailed further inquiries are exceptional and depend on the facts. A tribunal’s evaluative conclusion will not be disturbed merely because another balance might have been struck.

The appellants, an Afghan husband and wife and their daughter, entered the United Kingdom from Iran as visitors and sought indefinite leave to remain as dependants of their adult son under paragraph 317 of the Immigration Rules. Their applications were refused, and the First-tier Tribunal dismissed appeals under the Rules and under article 8 of the European Convention on Human Rights. It accepted that the daughter’s best interests favoured remaining in the United Kingdom, but held that removal of the family unit to Afghanistan was proportionate.

The Upper Tribunal dismissed the further appeals, finding no error of law. The daughter had turned 18 by the time of the Court of Appeal hearing. The central issues were whether the proportionality assessment concerning the parents was flawed, whether a future application under paragraph 317 made removal futile, and whether insufficient weight or investigative attention had been given to the daughter’s best interests under section 55.

Appeal dismissed. The First-tier Tribunal had directed itself correctly on article 8 and had made an evaluative assessment which disclosed no error of law.

1. Parents’ article 8 claims. The difficulties of life in Afghanistan did not, without more, make removal disproportionate. This was not an asylum or article 3 case, and there was no evidence of particular hardship arising from conditions in Afghanistan. The appellants had family there, retained or could recover financial resources, and would return as a family unit. Their United Kingdom family life had principally consisted of visits and telephone contact. The tribunal was entitled to give substantial weight to maintaining firm and fair immigration control.
2. Possible future application. The argument that removal would be futile because the appellants might soon qualify under paragraph 317 was rejected. Any later application would have to be assessed when made, on the evidence then available. Its success could not be pre-judged.
3. Child’s best interests. Section 55 of the Borders Citizenship and Immigration Act 2009 required the daughter’s best interests to be treated as a primary consideration, but not as determinative. The tribunal expressly found that remaining in the United Kingdom with her parents would be best for her, and then balanced that consideration against immigration control. It was not wrong to take the parents’ deception into account as part of the immigration circumstances, provided no culpability was attributed to the daughter herself; her lack of entitlement under the Rules was independently relevant.
4. Further inquiries. The detailed inquiries contemplated in Tinizaray were not required. The daughter was 16, represented, able to express her own views, and had been in the United Kingdom for only about a year. Her circumstances were materially less compelling than those of a child who had lived in the United Kingdom all her life. The tribunal had sufficient evidence to conduct the necessary assessment.

The fact that the daughter’s prospects would probably be better in the United Kingdom did not establish that removal would be ruinous. Lords Justice Briggs and Laws agreed with Lord Justice Underhill.

• Court of Appeal (Civil Division): in [2013] EWCA Civ 1189, dismissed the appeal and upheld the conclusion that the First-tier Tribunal had made no material error of law.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Davey dismissed the appeals under paragraph 317 of the Immigration Rules and article 8, finding no error of law.
• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the appellants’ appeals against refusal of indefinite leave to remain and held that removal to Afghanistan was proportionate.