Neutral Citation Number: [2012] EWCA Civ 1639
Case No: C5/2011/3041
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
FTTJ KHAN
IA/12425/2011
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13/12/2012
Before :

LORD JUSTICE RICHARDS
and
LORD JUSTICE DAVIS
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Between :

	ZS (JAMAICA) & Anr	Appellants	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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MR MIKHIL KARNIK (instructed by Messrs Fadiga & Co) for the Appellants.
MR SARABJIT SINGH (instructed by Treasury Solicitors) for the Respondent.

Hearing date: 28th November 2012
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Judgment

Lord Justice Davis : 
Introduction
1.	The principal question raised on this appeal is not an unfamiliar one.  It is whether the Upper Tribunal was justified in setting aside a previous determination of the First-tier Tribunal on the footing that there had been a material error of law.
2.	The determination of the First-tier Tribunal was promulgated by Immigration Judge Khan on 26th May 2011.  He allowed the appeal of the appellants against a decision of the respondent Secretary of State dated 1st February 2011 cancelling the leave of the first appellant to remain in the United Kingdom as a student (and in consequence the leave of the second appellant, who is the dependent infant son of the first appellant) and proposing the removal of both of them to Jamaica.  The Immigration Judge held that removal of the appellants would be a disproportionate and unjustified interference with their rights under Article 8 of the European Convention on Human Rights.  Against that determination of the Immigration Judge the Secretary of State appealed, with permission granted by Immigration Judge Kebede on 10 June 2011.
3.	The determination of the Upper Tribunal was promulgated by Senior Immigration Judge Hanson on 21 September 2011.  He decided that the Immigration Judge had made material errors of law in his evaluation of the Article 8 considerations.  He accordingly set aside the determination and, remaking the decision on a substantive consideration of the appeal, allowed the appeal of the Secretary of State.
4.	The appellants now appeal against that decision.  Their application for permission to appeal was refused on the papers by Sir Richard Buxton.  But permission was granted, after an oral hearing, by Maurice Kay LJ, who among other things indicated that the Upper Tribunal’s findings of errors of law in the determination of the First-tier Tribunal were “just about susceptible to legal challenge”.
5.	The appellants were represented before us by Mr Karnik of counsel.  The Secretary of State was represented by Mr Sarabjit Singh of counsel.  Neither counsel appeared in the proceedings below.
Background facts
6.	The first appellant is a Jamaican national born on 22 January 1982.  On 19 October 2002 she arrived in the United Kingdom as a visitor.  On 23 January 2003 her leave to remain was varied to that of a student and thereafter was extended.
7.	On 19 December 2005 she gave birth to the second appellant in the United Kingdom.  He also is a Jamaican national.  It was common ground that the father had disappeared from the scene by the time of the second appellant’s birth and has since played no part whatsoever with regard to his son.
8.	On 29 September 2009 the first appellant was granted further leave to remain as a student until 31 October 2011.  During July 2010 she went (with her son) to Jamaica to attend a family funeral.  On her return on 31 August 2010 she was interviewed by an immigration officer.  She was granted temporary readmission until 7 September 2010, when she was required to attend for further interview (with leave then extended to 11 September 2010).  On that re-interview, she was refused leave to re-enter as a student: and both appellants were removed to Jamaica that same day.
9.	The appellants commenced judicial review proceedings on 18 November 2010 in respect of that removal.  In the Acknowledgement of Service, the Secretary of State indicated agreement to reconsidering the appellants’ case and to return them to the United Kingdom for that purpose.  They returned on 22 January 2011 and the first appellant was re-interviewed.  During that interview, she admitted that she had been working in excess of the permitted number of hours for those granted leave to enter as a student.
10.	On 1 February 2011 the Secretary of State refused the first appellant leave to remain as a student and the second appellant’s continuing leave as a dependant was also refused.  Removal directions were proposed.  The detailed notices of refusal to enter (and Cancellation of Leave to Remain Report dated 3 February 2011) among other things explained that, whilst the first appellant had provided all her educational certificates from 2005 to date and while she had 86% attendance at Birmingham Management Training College, her admissions in interview and other evidence showed that she had regularly been working in excess of 20 hours per week in banquet and cleaning jobs (frequently in the order of 30 hours a week) and had done so for at least the previous 2 years, if not longer.
11.	An in-country right of appeal was conferred in respect of the decision dated 1 February 2011; and so it was that the appellants’ appeal from that decision came before Immigration Judge Khan sitting in the First-tier Tribunal in May 2011.  By this time, the second appellant was, of course, nearly 5½ years old.
12.	As for the judicial review proceedings, they are still extant.  Permission was granted on 23 March 2011 and the hearing (on what will now presumably be primarily a claim for damages) is listed for hearing on 19 December 2012.
The decision of the First-tier Tribunal
13.	The appellants were legally represented before Immigration Judge Khan and a Home Office Presenting Officer appeared for the Secretary of State.  Evidence was given in writing and orally by the first appellant and also by her cousin, Ms Hutchinson.
14.	The first appellant explained that she had initially lived with her aunt in the United Kingdom but, since 2006, had lived rent-free with Ms Hutchinson and her husband and child.  The second appellant had lived with the first appellant in the United Kingdom since his birth.  The first appellant also had a brother and uncle living in Birmingham.  Her parents were in the United States of America.  It was said that the second appellant’s behaviour had changed dramatically for the worse in the period between September 2010 and January 2011 when he had been removed to Jamaica, but he had now settled down again at school.  There were provided letters from the school indicating that the second appellant was struggling and might be put on the Special Education Needs Register; and also that regular attendance at school was important for him.
15.	The first appellant accepted that she had been working in excess of the permitted number of hours per week.  She said that she did so to maintain her son (whose father, having disappeared, gave no assistance).  She was pursuing her education at the same time.  The Immigration Judge found that she worked excess hours “out of financial necessity” to support her son.
16.	There was no dispute before the Immigration Judge that there had been a breach of the Immigration Rules.  As he recorded, the only consideration was the Article 8 family life claim.  The Immigration Judge indicated that removal would constitute an interference with family life.  He considered Razgar [2004] UKHL 27 and then said this:
“If I were considering the first appellant’s circumstances only and she did not have a child, then I would require a great deal of persuasion to find that her removal would not be proportionate, even taking into account on a private life claim only that the appellant had made significant progress in her educational career in the UK.”
17.	As to the second appellant, he found that the (in effect, forced and peremptory) removal on 11 September 2010 had had a “traumatic” effect on him, albeit the evidence was that the previous six week visit – to enable attendance at the family funeral in Jamaica – had had no adverse effect on him.  The Immigration Judge directed himself in paragraph 16 of his determination at some length by reference to ZH (Tanzania) v SSHD [2011] 2 AC 166, noting that the proper approach was, having taken the best interests of the child as a primary consideration and as a starting point, to assess whether the best interests of the child were outweighed by the strength of any other considerations.  Having also referred to the case of Beoku-Betts [2009] UKHL AC 1115, he stated: “The point is therefore whether in this case the second appellant as the child of the first appellant can reasonably be expected to follow the removed parent to the country of removal”.  He then said this:
“18.  The respondent argues that because the second appellant is still only very young, he can quite easily adapt to life in Jamaica and would not suffer if he were removed there, educationally or otherwise. I beg to differ. The second appellant has been born in the UK and has clearly, upon the evidence, suffered whilst he was removed without lawful authority to Jamaica from September 2010 until January 2011.  He has a large family in the UK and it is clear that he has established close family ties with them.  His grandparents do not live in Jamaica but live in the USA.  I do not therefore consider it reasonable to expect the second appellant to go and live in Jamaica.  The second appellant clearly has a settled life in the UK and the manner of his removal to Jamaica had a traumatic effect upon him.  Removal, once again, in my view would further traumatise him and clearly would not be in the best interest of the child and neither reasonable or a fair decision in all the circumstances of the case.
19.  Clearly, as was said in ZH, the interests of the child is ‘a primary consideration’ but conducting the balancing exercise, and taking into account the views of the respondent as to whether the second appellant could adapt to life in Jamaica, and taking into account the effect that his forced removal had upon him and that his ‘home’ is in the UK with his wider family circle, I have to conclude that it would neither be proportionate or reasonable to remove the second appellant to Jamaica with his mother.
20.  In coming to this conclusion, the first appellant does not have an adverse immigration history other than contravening the Rules in that she worked for more than twenty hours in term time as a student.  The documentary evidence shows that she has worked hard at college and achieved a number of worthwhile qualifications.  She has not received any support whatsoever from her son’s father and indeed there has been no contact with him since she became pregnant.  Her transgression amounts to finding it necessary to work more than the permitted hours during term time to support her child.  I take the first appellant’s breach of the Immigration Rules into account and add this into the balancing exercise as to whether removal would be proportionate.  I am not satisfied that the breach is so heinous that the public interest would require the first appellant to be removed in furtherance of immigration control…”
18.	The overall conclusion was that the factors prayed in aid by the Secretary of State did not outweigh the considerations against removal, it not being in the best interests of the second appellant to be removed from the United Kingdom to Jamaica.
The decision of the Upper Tribunal
19.	The Secretary of State appealed.  It has to be said that some aspects of the Grounds of Appeal were wholly misconceived.  For example, it was suggested that reliance by the Immigration Judge on the principles of ZH were mistaken – which was and is demonstrably wrong – and Mr Singh has wisely disclaimed any reliance on those aspects of the grounds.  But the thrust of the Secretary of State’s complaints, as maintained, were sufficiently set out, in the alternative, in the second part of ground 2 as drafted.
20.	At all events, permission to appeal having been granted the matter came on before Senior Immigration Judge Hanson.  He doubted the finding that the first appellant was required to work through necessity, given her rent free accommodation and other financial support from family members: although it can most certainly be said that that was a matter of fact for the Immigration Judge below.  But in addition the Senior Immigration Judge considered that the conclusion that the second appellant could not readily adapt to life in Jamaica was flawed and failed to address the evidence, in particular given that the second appellant would be with his mother; the removal would be planned; they would be in a country where both were nationals and had family connections; and when there was no evidence that insufficient educational facilities would be available.  It was also observed by the Senior Immigration Judge that the Immigration Judge had made no sufficient findings as to the nature and quality of the family ties in the United Kingdom and so as to what weight should properly be given to them in the proportionality assessment.  A further criticism was that the Immigration Judge had failed to give any proper weight to the seriousness of the sustained breach of the Immigration Rules involved in the first appellant, as a student, working in excess of the permitted number of hours.  Other criticisms were also made.
21.	It is not necessary to review in exhaustive detail the Senior Immigration Judge’s reasoning in deciding that there had been a material error of law and that the decision should be remade.  We were referred in this regard to the observations of Longmore LJ in AP (Trinidad and Tobago) v SSHD [2011] EWCA Civ 551 at paragraphs 25 and 26 of his judgment, to the effect that this court should decide for itself.  Nevertheless, Mr Karnik was justified in emphasising the general principle that a court should not be astute to categorise as an error of law what is no more than a disagreement with an assessment of the facts.  Indeed that is, in essentials, his criticism of the approach of the Senior Immigration Judge.
Discussion and conclusions
22.	I am in no real doubt that the determination of the First-tier Tribunal was in this case indeed vitiated by material errors of law and that the Upper Tribunal was justified in setting that determination aside and in remaking the decision.
23.	There can be no criticism of the Immigration Judge’s self-direction with regard to ZH and to the principles derived from that case summarised in his determination.  But in my view he went seriously wrong in his application of those principles to the facts as found by him.
24.	The first point is that, in considering where the best interests of the second appellant lay, nowhere does the Immigration Judge refer to the important factor of the best interests of the second appellant – only five at the time – being that he live with and be with his mother (his father, on the facts as found, had no relevance at all).  The potential importance of this factor in assessing the best interests of a young child in the context of a case of the present kind is rightly stressed in OE-A [2011] UKUT 00315 (AC) at paragraph 36 of the decision.  But that does not seem to have featured in the judge’s reasoning or approach.
25.	Secondly, the judge had found on the evidence that the peremptory removal on 11 September 2010, which the Immigration Judge had taken to be unlawful, had had a traumatic effect on the second appellant.  But he then jumped from that to a conclusion that a further (planned) removal on lawful authority would “further traumatise” him.  There was no evidence, whether from an expert psychiatrist or otherwise, to support that conclusion and I do not accept Mr Karnik’s submission that it could properly be inferred.  Of course it may be accepted that such removal would cause an amount of disruption and upset.  But that is not the same thing.  Moreover, the judge’s conclusion on this point further undermined his summary rejection of the argument that the second appellant could adapt to life in Jamaica: which rejection was heavily based on his simply assuming that further trauma would have been caused.
26.	Thirdly, the Immigration Judge nowhere really focuses on the strength or weakness of the engagement with Article 8 so far as family life was concerned with regard to either appellant.  It may be granted that the appellants had an established private life in the United Kingdom.  Further, of course, on any view there was established family life as between the appellants themselves: although, and importantly, that would not of itself be disrupted by removal to Jamaica since of course they would both be removed together.  The judge shortly said that the second appellant had “established close family ties” with his “large family” in the United Kingdom.  But, with regard to this five year old, who had barely started at primary school, no further elaboration or reasoning was given on this potentially important matter relating to family and private life.  Conversely, the judge made no further mention of the appellants both being Jamaican nationals, with (as the evidence showed) family members living in Jamaica and with whom they stayed on their earlier six week visit, and also made no finding as to their ability to retain contact with family members in the United Kingdom if removed.
27.	Overall, the judge seems to me, with all respect, to have approached the assessment of the best interests of the second appellant on an inadequate basis and also seems almost entirely to have downplayed the countervailing matters requiring assessment in the balancing exercise.  Thus the judge virtually explains away the serious breach of the Immigration Rules by the first appellant – who as a Jamaican national had come to the United Kingdom for temporary purposes with no legitimate expectation of being allowed to remain permanently and with, as she knew, no right to work for the hours she did – by saying that it was driven “by necessity” and by describing it almost dismissively as a “transgression” which was not “so heinous” as to require removal.  But this was on any view a serious matter and should have been accorded commensurate seriousness as a countervailing factor in the balancing exercise in the assessment of the proportionality of the proposed removal.
28.	Accordingly, it seems to me the judge’s approach was flawed.  He ultimately seems to me in substance to have regarded what he had perceived to be the best interests of the second appellant as being the, not simply a, primary consideration and, having done so, not to have given due regard to the countervailing factors.  In ZH, Lord Hope had expressed concern to the effect that the best interests of the child should not be permitted to melt away into the background.  In my view, the reverse has happened here – the important countervailing factors have, in effect, been so marginalised as to have been permitted to melt away into the background.
29.	It is not necessary to say more.  There was, in my judgment, a material error of law in the First-tier Tribunal’s approach and the Upper Tribunal was justified in setting the determination aside.  It is therefore also not necessary to express a conclusion on Mr Singh’s alternative submission that the decision of the Immigration Judge was in any event perverse.
30.	Mr Karnik, as an alternative ground, submitted that the Upper Tribunal’s own evaluation, in remaking the decision, was itself flawed.  I can see no basis for that.  The Senior Immigration Judge assessed the evidence adduced before him fully and properly.  It may be noted that, on the evidence before him, he found no sufficiently strong relationship that the first appellant herself had with her relatives in the United Kingdom sufficient to constitute family life.  He understandably attached importance to the seriousness of the breach of the Immigration Rules.  He found there was no evidence to show that the second appellant would suffer psychological harm if removed, with his mother, to Jamaica or that he would not be able to adapt to life there, with appropriate planning and with the availability of family support.  It is also a very striking feature that before the Upper Tribunal (although not before the First-tier Tribunal) the first appellant herself had said that she ultimately intended to return to Jamaica.
31.	Mr Karnik did complain that the Senior Immigration Judge had (as he had explicitly stated in his determination and as is reflected in its structure) considered the position of the first appellant first.  Mr Karnik submitted that the observations of Lady Hale at paragraph 33 of her judgment in ZH required that the best interests of the second appellant should have been considered first.  There is nothing in this: it is an argument based on form over substance.  ZH makes clear that the best interests of the child are the starting point, are the factor ranking higher than any other one factor and require countervailing factors of force to displace them.  It is demonstrable from the determination of Senior Immigration Judge Hanson, read as a whole, that he throughout had that well in mind and fully appreciated the principles of ZH.  His overall conclusions, in the closing paragraphs of his determination, are clearly to the effect that the countervailing factors, taken cumulatively, displaced any proposition that the best interests of the second appellant were that he remain in the United Kingdom.  In my view, given the evidence before him, any other conclusion would have been, to say the least, surprising.
32.	Mr Karnik wisely disclaimed any reliance on an argument – mooted in his written grounds of appeal but seemingly not raised either in the First-tier Tribunal or in the Upper Tribunal – based on the alleged need of the first appellant to remain in the United Kingdom to pursue the judicial review claim.
Outcome
33.	I thus would dismiss the appeal. 
Lord Justice Richards:
34.	I agree.