Juned Miah v Secretary of State for the Home Department

Nationality, Immigration and Asylum Act 2002, section 117B(1)–(5), applies to child migrants as well as adults. Parliament made no distinction by age. The statutory considerations are mandatory but not exhaustive, so age, immaturity, vulnerability, compulsion and the circumstances of a child’s residence may also be material to Article 8 proportionality.

Home Office Immigration Directorate Instructions are not law and cannot displace legislation or the Immigration Rules. They are, however, a mandatory relevant consideration and must be applied flexibly and holistically. In assessing very significant obstacles to integration, decision makers must assess the individual’s real circumstances in the round.

The appellant, a Bangladeshi national, entered the United Kingdom aged 13 and was granted discretionary leave as an unaccompanied minor after his asylum claim was refused. His later application for further leave to remain was refused on 29 October 2014.

The First-tier Tribunal dismissed his appeal. An earlier Upper Tribunal decision set that determination aside for legal error, including use of the former “no ties” formulation rather than the current integration test, and directed that the appeal be remade.

The remaking panel accepted that the appellant had lost family ties with Bangladesh and had spent his teenage years in the United Kingdom. The central issues were whether he met paragraph 276ADE(1)(vi) of the Immigration Rules and whether removal was proportionate under Article 8 ECHR in light of section 117B.

1. Appeal dismissed. The appellant did not meet paragraph 276ADE(1)(vi) of the Immigration Rules. Although reintegration in Bangladesh would be difficult and would cause hardship, it would be achieved and would not entail “very significant obstacles”. His linguistic, cultural and social attachments to Bangladesh remained material, notwithstanding the absence of family contact.

2. The relevant Immigration Directorate Instruction was a mandatory relevant consideration. It was a policy document, not law, and was subordinate to legislation and the Rules. Following Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12, it had to be treated flexibly rather than as a rigid or exhaustive code. Decision makers had to assess asserted evidential deficiencies realistically, including whether corroboration was reasonably obtainable, and weigh all material circumstances together.

3. Section 117B(1)–(5) of the Nationality, Immigration and Asylum Act 2002 draws no distinction between adults and children. In particular, the direction in section 117B(5) to give little weight to private life established while immigration status is precarious applies to both. Section 117B(6) supplies the statutory child-specific provision, confined to a qualifying child and a parental relationship.

4. However, the statutory considerations are not exhaustive. Applying Forman (Sections 117A–C considerations) [2015] UKUT 412 (IAC), the Tribunal had to weigh all other legitimately relevant proportionality factors. For a child, these can include trafficking or compulsion, parental influence, age, personal circumstances and the absence of culpable immigration breaches.

5. Here, little weight was given to the appellant’s private life because his status had always been precarious. The public interests in effective immigration control and financial independence were also engaged. His compelled arrival, integration and formative teenage residence in the United Kingdom were weighed in his favour, but as a young adult without special vulnerability or family ties in the United Kingdom, the public interest decisively prevailed. The appeal was dismissed under the Rules and under Article 8 ECHR outside them.

• Upper Tribunal (Immigration and Asylum Chamber): Having previously set aside the First-tier Tribunal’s decision for legal error, the Tribunal remade the decision and dismissed the appeal under the Immigration Rules and Article 8 ECHR.
• First-tier Tribunal: The appeal against refusal of further leave to remain was dismissed on 9 February 2015. That determination was set aside by the Upper Tribunal.
• Secretary of State: Further leave to remain was refused on 29 October 2014.