MT & Anor v The Secretary of State for the Home Department

Where a child has spent substantial time in the United Kingdom, an assessment of her best interests under section 55 of the 2009 Act and Article 8 must look beyond her need to remain with a parent. It must consider her developing private life in the wider world, including education, friendships and social connections.

Under section 117 B(6) of the Nationality, Immigration and Asylum Act 2002, a child’s lengthy residence carries significant weight. Where a child has lived in the United Kingdom for over ten years and her best interests lie in remaining, powerful reasons are required to make removal reasonable. Ordinary immigration offending by the parent may not supply such reasons.

An ex tempore appeal process must also preserve procedural fairness where a party changes its stated case.

The appellants were a Nigerian mother and her daughter. They entered the United Kingdom in 2007 as visitors and overstayed. The respondent refused their human-rights claims in August 2016.

The First-tier Tribunal dismissed their appeals in an ex tempore decision on 6 July 2017, delivered under the 2017 Proof of Concept for the Extempore Judgment Pilot. Although it found that the daughter’s best interests lay in remaining in the United Kingdom, it held that removal to Nigeria was reasonable after weighing the mother’s immigration history and other public-interest matters.

Permission to appeal was granted by the Upper Tribunal. The central issues were whether the First-tier Tribunal’s conduct of the pilot hearing was procedurally fair, whether it had fairly assessed the child’s evidence, and whether removal was proportionate under Article 8.

1. The appeals were allowed. The First-tier Tribunal decision contained material errors of law, was set aside, and the Upper Tribunal substituted a decision allowing both appeals on Article 8 human-rights grounds.

2. The respondent’s pre-hearing statement had presented the child’s best interests as the critical factual issue. The late reliance on the 2012 determination materially shifted the respondent’s case towards adverse public-interest matters. The judge should have considered whether fairness and the overriding objective permitted that change. If it did, the appeals should have been removed from the ex tempore pilot so that the appellants could respond fairly.

3. The judge also erred by rejecting aspects of the child’s account without questioning her about them, despite the Presenting Officer having chosen not to cross-examine her. The adverse view of that evidence had affected the assessment of the mother’s conduct and the public interest in removal.

4. In remaking the decision, the Tribunal found that the daughter’s best interests plainly lay in remaining in the United Kingdom with her mother. A child who is very young or only recently at school will often have little Article 8 private or family life separate from living with her parents. As the child grows older, however, the inquiry must widen to her position in the wider world. School, friendships and social connections will usually be important.

5. Applying MA (Pakistan) and Others v Secretary of State for the Home Department [2016] EWCA Civ 705, the Tribunal held that powerful reasons were needed to justify removal of this child, who had been in the United Kingdom for over ten years and whose best interests lay in remaining. The mother’s immigration history, including use of a false document to obtain employment, did not reach that level. Removal would therefore be disproportionate under Article 8.

The Tribunal added, obiter, that advance management of cases for ex tempore decisions may promote efficiency, but requires careful handling to secure procedural fairness.

• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal decision for material error of law and substituted a decision allowing the appeals on Article 8 grounds.

• First-tier Tribunal: On 6 July 2017, dismissed the appellants’ appeals in an ex tempore decision made under the 2017 Proof of Concept pilot.

• Earlier proceedings: The mother’s earlier Article 8 appeal was dismissed in January 2011. A later appeal following refusal of her asylum claim was dismissed in November 2012.