TA (Sri Lanka) v Secretary of State for the Home Department

In an Article 8 case concerning a child, the child’s best interests are a primary consideration, but not a paramount or automatically decisive one. They must be identified and evaluated before balancing the cumulative force of other relevant considerations. No other consideration has inherent priority. Leave outside the Immigration Rules requires compelling circumstances. On an appeal from the Upper Tribunal, the Court of Appeal may intervene only for an error of law. A material misstatement of residence, omission of family circumstances, or reliance on unsupported findings about education, culture or distress may justify setting aside and remaking the First-tier Tribunal’s decision.

The appellant, a Sri Lankan national born in 2002, applied for leave to remain outside the immigration rules on the basis of Article 8, relying on her family and private life with her grandparents in the United Kingdom. The Secretary of State refused the application.

The First-tier Tribunal allowed the appellant’s appeal. The Upper Tribunal allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision and remade it. The central issue before the Court of Appeal was whether the Upper Tribunal had identified material errors of law justifying that intervention in the child’s Article 8 assessment.

1. The appeal was dismissed. Lord Justice Kitchin gave the substantive judgment, with which Lord Justice McFarlane agreed. The Court of Appeal could interfere only if the Upper Tribunal’s determination contained an error of law. If the Upper Tribunal had directed itself properly and reached a conclusion open to it, the Court of Appeal could not intervene merely because it might have taken a more generous view. The approach was consistent with Adedoyin v SSHD [2012] EWHC Civ 939 and the recognised categories of error summarised in R (Iran) v SSHD [2005] EWCA Civ 982.

2. In an Article 8 evaluation involving a child, the decision-maker must identify the child’s circumstances and best interests before assessing proportionality. The best interests of the child are a primary consideration, although not necessarily the only primary consideration. They may be outweighed by the cumulative effect of other relevant considerations, but no other consideration is inherently more significant. The ultimate question is whether compelling circumstances justify granting leave outside the Immigration Rules.

3. Where the Upper Tribunal identifies an error of law and sets aside the First-tier Tribunal’s decision, it must either remit the case or remake the decision under section 12 of the Tribunals, Courts and Enforcement Act 2007. It will generally use the First-tier Tribunal’s findings of fact unless those findings have been infected by the identified error.

4. The First-tier Tribunal had made material errors. It had materially overstated the appellant’s uninterrupted residence in the United Kingdom, an error significant in light of paragraph 276 ADE (iv) of the Immigration Rules. It had failed properly to consider the stable family environment available with the appellant’s father and brothers, the interest in family reunification, and the absence of evidence that the mother’s depression prevented her from providing proper care.

5. The First-tier Tribunal had relied on an incomplete assessment of the appellant’s distress, failed to account for her continuing bond with her parents, and attached weight to educational disruption without evidence that removal would cause serious detriment or that education in Sri Lanka was inadequate. It also failed properly to consider the appellant’s mixed cultural identity, her ability to speak both English and her parents’ language, and her ability to maintain links with her grandparents.

6. The Upper Tribunal was therefore entitled, and required, to reassess the case and determine whether compelling circumstances existed. Its decision was adequately reasoned, and no basis existed for further interference.

• Court of Appeal (Civil Division): Appeal dismissed; [2018] EWCA Civ 260.
• Upper Tribunal (Immigration and Asylum Chamber): Appeal by the Secretary of State allowed; the First-tier Tribunal’s decision was set aside and remade on 19 December 2014.
• First-tier Tribunal (Immigration and Asylum Chamber): The appellant’s appeal was allowed on 19 September 2014.