AM v Secretary of State for the Home Department

Section 117A(2) of the Nationality, Immigration and Asylum Act 2002 requires a tribunal to have regard to the relevant section 117B considerations. It does not require a formal recital of every provision regardless of the evidence.

Sections 117B(2) and (3) do not confer a positive entitlement to leave through English-language ability or financial independence. Lawful limited leave is nevertheless ordinarily a precarious immigration status for section 117B(5), because continued residence depends on a further grant of leave. Where the reasonableness issue under section 117B(6) is the same as that under paragraph 276ADE(1)(iv), it need only be answered once, in the context of whether the child can reasonably accompany the parents abroad.

The appellant, a Malawian national, had entered as a student and later overstayed. His wife and two children were also Malawian nationals. Following the refusal of an asylum claim founded on concerns for the elder child, removal decisions were made against the family.

The appellant alone appealed. First-tier Tribunal Judge Hands dismissed his asylum, humanitarian protection and human-rights appeal in a determination promulgated on 22 September 2014. The Upper Tribunal considered whether the judge had erred by not expressly addressing every relevant section 117B factor, by treating the family’s former limited leave as precarious, and by her treatment of the children’s welfare and prospective return to Malawi.

1. The appeal was dismissed. The First-tier Tribunal’s decision disclosed no material error of law and was confirmed.

2. Section 117A(2) required the First-tier Tribunal to have regard to each section 117B consideration raised by the evidence. The duty was one of substance, not form. A tribunal need not set out every statutory provision, nor address a consideration that has no possible application on the facts. Its reasons must, however, show that relevant provisions were considered and applied.

3. Sections 117B(2) and (3) reinforce the public interest in effective immigration control. They do not displace the Immigration Rules or give an appellant a right to leave merely because he speaks English or is financially independent. The appellant could gain no positive right to leave under either provision.

4. For section 117B(5), Parliament distinguished unlawful presence from a precarious lawful immigration status. A person whose continued residence depends on obtaining further leave has a precarious status; this includes a person holding limited or discretionary leave. The test is objective and does not turn on the duration of leave or a belief that it will be extended. Little weight was therefore required to be given to the family’s private life formed during their limited leave; their later unlawful presence could not assist them.

5. The elder child was a qualifying child. The section 117B(6) question was whether it was reasonable for her to leave the United Kingdom. It was the same practical question as under paragraph 276ADE(1)(iv), and did not require duplicate answers. The judge had separately assessed both children’s circumstances and was entitled to find that it was reasonable for them to return to Malawi with their parents.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and confirmed the decision of First-tier Tribunal Judge Hands.
• First-tier Tribunal: dismissed the appellant’s asylum, humanitarian protection and human-rights appeal in a determination promulgated on 22 September 2014.