Secretary of State for the Home Department v Sooreeado Treebhawon & Ors

Where a non-deportable person has a genuine and subsisting parental relationship with a qualifying child, and it would not be reasonable to expect that child to leave the United Kingdom, Nationality, Immigration and Asylum Act 2002, section 117B(6), provides that the public interest does not require that person’s removal. That discrete public interest prevails over the public-interest considerations in section 117B(1)–(3).

Section 117B(4) and (5) are not statements of the public interest. They are mandatory directions to give little weight to the specified private life or relationship factors where they arise in the Article 8 proportionality balance.

A Mauritian father and his four children appealed against the refusal of their human-rights application. The First-tier Tribunal allowed the eldest child’s appeal under paragraph 276ADE of the Immigration Rules and allowed the remaining appeals outside the Rules under Article 8.

The Secretary of State appealed. She contended that the eldest child did not meet the seven-year residence requirement at the date of application, and that the First-tier Tribunal had wrongly treated section 117B(6) as decisive without considering the other section 117B provisions.

The Upper Tribunal considered both the effect of the error concerning the Immigration Rules and the common question whether satisfaction of section 117B(6) determines the Article 8 public-interest question.

1. The appeal was allowed on the first ground. The First-tier Tribunal erred in allowing the eldest child’s appeal under paragraph 276ADE. The relevant seven-year continuous-residence requirement had to be met at the date of application to the Secretary of State, not at the date of the tribunal’s decision. The child did not meet that requirement at the material date.

2. That error was material to all five appeals. The First-tier Tribunal’s decision to allow the other family members’ Article 8 appeals depended exclusively on its legally erroneous conclusion that the eldest child could remain under the Rules. The decisions were inextricably linked. All were therefore set aside.

3. The second ground failed. Part 5A of the Nationality, Immigration and Asylum Act 2002 applies when a court or tribunal determines whether an immigration decision breaches Article 8. Section 117B(1)–(3) state public interests. By contrast, section 117B(4) and (5) direct the decision-maker to give little weight to the specified private-life and relationship factors where applicable.

4. Section 117B(6) is an unqualified and distinct statutory statement. Where the person is not liable to deportation, has a genuine and subsisting parental relationship with a qualifying child, and it would not be reasonable to expect the child to leave the United Kingdom, the public interest does not require that person’s removal. In such a case, the section 117B(6) public interest prevails over those in section 117B(1)–(3).

5. The First-tier Tribunal therefore made no error by considering section 117B(6), without considering the other provisions of section 117B, when assessing the Article 8 claims outside the Rules. The Upper Tribunal declined to decide the unargued question whether section 117B(4) or (5) could qualify section 117B(6). The First-tier Tribunal’s decision was set aside and the appeals were to be remade in the Upper Tribunal.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed on the Immigration Rules ground. The First-tier Tribunal’s decision was set aside, although the challenge concerning section 117B(6) failed.
• First-tier Tribunal: By a decision promulgated on 17 July 2015, the tribunal allowed the eldest child’s appeal under paragraph 276ADE of the Immigration Rules and allowed the other family members’ appeals under Article 8.