PD & Ors v Secretary of State for the Home Department

Where Article 8 claims by members of one family arise together, each claimant's position under the Immigration Rules should be considered first. The claims should then ordinarily be evaluated and determined together. A decision-maker must not apply the child's reasonableness test in isolation from the parents' pending claims, since that would omit material considerations and frustrate a properly informed assessment of the child's best interests.

The reasonableness inquiry under paragraph 276 ADE(1)(iv) is a fact-sensitive balance. It is less demanding than tests of exceptional or compelling circumstances. Where a non-deportable parent has a genuine and subsisting relationship with a qualifying child and it would not be reasonable for that child to leave, Nationality, Immigration and Asylum Act 2002 section 117B(6) means that the public interest does not require the parent's removal.

A Sri Lankan mother, father and their 14-year-old son appealed against the refusal of their applications for further leave to remain. The family had entered the United Kingdom together in 2005. The child had lived and been educated there for about 11 years, while the parents had been unlawful overstayers since 2010.

The First-tier Tribunal dismissed all three appeals. The Upper Tribunal had previously set that decision aside for material errors of law and re-made it. The child alone could potentially qualify under paragraph 276 ADE(1)(iv) of the Immigration Rules. His parents relied on Article 8 outside the Rules.

The central issue was whether the child's claim had to be decided first and separately, or whether the connected family claims and the reasonableness of expecting the child to leave had to be assessed together.

1. Appeals allowed. The tribunal allowed the child's appeal under paragraph 276 ADE(1)(iv) of the Immigration Rules and allowed the parents' appeals outside the Rules under Article 8.

2. There was no statutory or Rules-based requirement to decide the child's claim first. However, where family members make coincident Article 8 claims, public law requires the decision-maker to take account of all material facts and considerations. It would be artificial, and contrary to the duty under Borders, Citizenship and Immigration Act 2009 section 55, to decide the child's claim in a vacuum without the parents' claims. Each claim should first be tested against the Rules; the connected claims should then normally be considered and determined jointly.

3. The child satisfied the seven-year residence requirement. Whether it was reasonable to expect him to leave required an assessment of the likely future of the whole family. Separation from his parents was not a viable outcome. The reasonableness test is a fact-sensitive balance and is less exacting than exceptional circumstances, insurmountable obstacles or very compelling factors.

4. It was not reasonable to expect this child to leave. Determinative considerations were his 11 years' residence, deep integration in the United Kingdom, critical educational and personal stage, minimal ties to Sri Lanka, and best interests as a primary consideration. His parents' unlawful status was weighty, but did not outweigh those matters.

5. The parents had genuine and subsisting parental relationships with a qualifying child, and they were not liable to deportation. Accordingly, Nationality, Immigration and Asylum Act 2002 section 117B(6) meant that the public interest did not require their removal. Their removal would also stultify the child's entitlement under the Rules. Those matters constituted compelling or exceptional circumstances for Article 8 purposes outside the Rules.

• Upper Tribunal (Immigration and Asylum Chamber): The tribunal had previously set aside the First-tier Tribunal's decision for material errors of law. It re-made the decision and allowed all three appeals.
• First-tier Tribunal: Dismissed the family's appeals by a determination promulgated on 15 January 2015.