Hamidreza Azimi-Moayed & Ors v The Secretary of State for the Home Department

In immigration appeals affecting children, their best interests are a primary consideration, but they do not automatically require leave to remain. The tribunal must consider the issue where it arises on the evidence. It need not undertake further inquiry or give separate reasons where the evidence provides no indication that removal threatens the child’s welfare or undermines their best interests.

Short residence without leave or a reasonable expectation of leave will ordinarily create no private life requiring respect, absent exceptional factors. A material error of law is required before an Upper Tribunal decision should be remade. A late rule 25 reply cannot introduce fundamentally different grounds for which permission has not been granted.

The first appellant, an Iranian national, arrived irregularly in the United Kingdom in January 2012 with his wife and two children. Their asylum claims were dismissed by the First-tier Tribunal after only two months’ residence in the United Kingdom.

Permission to appeal was granted on the contention that the First-tier Tribunal had not expressly considered UK Borders and Citizenship Act 2009, s 55, when assessing the children’s welfare. Shortly before the Upper Tribunal hearing, the appellants also sought to add complaints about counsel’s conduct and medical evidence obtained after the hearing.

The central issues were whether the First-tier Tribunal had made a material error of law concerning the children’s best interests, and whether the appellants could amend the appeal to advance wholly new grounds at that late stage.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. Although a child’s best interests are a primary consideration in immigration decisions, and form a critical part of an Article 8 assessment, the evidence disclosed no welfare issue requiring further inquiry or separate reasoning.

2. The duty under s 55 of the UK Borders and Citizenship Act 2009 requires decision-makers and judges to be alert to children’s welfare. It does not mean that every child’s best interests favour remaining in the United Kingdom. The ordinary starting point is that dependent children remain with parents who are removed together. Stability, continuity, cultural ties and the length and quality of residence may be relevant. Seven years is a relevant, but not decisive, period; residence from about age four may carry greater weight than a child’s first seven years. Very short residence pending prompt determination of an immigration claim will ordinarily not establish private life deserving respect without exceptional circumstances.

3. The Upper Tribunal’s appellate task is to identify an error of law, decide whether to exercise its power to remake the decision, and, if it does, decide how it should be remade under the Tribunals, Courts and Enforcement Act 2007. A marginal error which could not affect the outcome will not realistically justify remaking the decision.

4. The application to amend was refused. The procedural scheme requires the notice of appeal and the grant of permission to define the appeal. A rule 25 reply cannot introduce fundamentally different, unpermitted grounds shortly before the hearing, particularly without service on the respondent. Alleged representative incompetence requires a high threshold and appropriate waiver of privilege and disclosure. Later medical evidence should ordinarily be advanced in fresh representations rather than used to impugn an otherwise fair hearing.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal’s decision.
• First-tier Tribunal: dismissed the appellants’ asylum and human-rights appeals in a written decision signed on 2 April 2012.