Khalid & others (Ealing, West London and Hammersmith College) Pakistan [2011] UKUT 295 (IAC) (01 August 2011): This case concerned three appellants (Pakistani nationals) whose applications for Tier 1 (Post-Study Work) Leave to Remain in the UK had been refused by the Secretary of State for the Home Department (SSHD). One of the appellants had a wife and daughter whose applications for leave to remain in the UK were dependent on his obtaining leave to remain on a post-study work visa.
In support of their applications, the appellants submitted what seemed to be postgraduate diplomas from Ealing, Hammersmith and West London College (EHWLC). The SSHD had refused each application under paragraph 322(1A) of the Immigration Rules, on the basis that the qualifications claimed were false. This meant that the appellants had failed to show they were entitled to the requisite number of points under the Points Based System to entitle them to Tier 1 status.
The appellants provided witness statements and what seemed to be coursework to corroborate the certificates they produced in support of their applications for leave to remain in the UK. However, these were all found to be false documents. The certificates the appellants had produced were equally false, as witnesses from the college affirmed. Furthermore, the college had an extensive and reliable system which recorded every student at the college. The appellants were not on this system.
The Court cited AA (Nigeria) [2009] EWCA Civ 773, in which the Court of Appeal held that dishonesty or deception, even though not necessarily deception by the applicant herself/himself is needed to find a ‘false representation’ as a ground for mandatory refusal of leave to remain. The burden of proof was on the appellants to show they had attended the college (under paragraph 245ZX of the immigration rules). The standard of proof was a balance of probabilities.
In light of the evidence heard on the false certificates and assignments produced by the appellants, and the fact that the college had no trace of their attendance, the Court found that the SSHD’s refusal under paragraph 322(1A) of the Immigration Rules was ‘sound and manifestly in accordance with the law’.
There were no Article 8 (right to family life) European Convention of Human Rights concerns, except in the case of the appellant whose wife and daughter were with him in the UK. The Court found that there was no breach of Article 8 because the family could return to Pakistan without any interference to their family life. Applying ZH (Tanzania) [2011] UKSC 4, it would be in the child’s best interests to remain with her parents because of her young age. There was no evidence that the family would be unable to re-establish themselves in Pakistan. The decision to refuse leave to remain to the appellants was proportionate with regard to family life in each case.
New Human Rights (article 8) case
Mamaniat, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 157 (Admin) (24 January 2011)
This case concerns a judicial review application before the Administrative Court from the claimant, a Malawi national against the Secretary of State’s decision finding his claim that removal would breach his article 8 rights as clearly unfounded. The effect of certifying his claim meant that the claimant had no in country right of appeal. Therefore, he pursued a judicial review action.
The Court referred to the cases of ZT (Kosovo) and R (Princely) where the legal approaches to be taken was defined.
Where a case is certified as clearly unfounded, this is because it is deemed to lack in substance and does not have any realistic prospect of success. As the threshold is quite high, a decision maker must give it anxious scrutiny.
The claimant’s immigration history
In this case, the claimant resided with his family in Malawi. His mother passed away when he was only five years of age and his father passed away thereafter when he was aged 14, of a terminal illness. The claimant was cared for by his paternal grandmother. She is a British Citizen and came to reside in the UK in 2006. The claimant arrived in the UK in 2005, before his grandmother.
The claimant was invited to the UK by his aunt, a British citizen, to live with her. He was a minor when he arrived (at the age of 17) and his passport was endorsed with 6 months leave to remain (as a visitor). The claimant is now 22 years of age.
The claimant subsequently overstayed on his visa, remaining in the UK unlawfully. He lived with family members for a few years before moving in with a friend. He did not work or claim benefits and was supported by family members. The claimant, at the time of this hearing, had returned to his aunt’s home and was living with her. He did not have any formal education and was slow of leaning. The claimant was said to be suffering from depression and has suicidal thoughts when thinking of the memory of his father.
Courts conclusion
The case law stipulates that for the purposes of article 8, there must be ties beyond normal ties and financial and emotional dependency amongst other factors could be determinative of this. The Home Office representative argued that the fact that the claimant’s only living relatives were based in the UK was not sufficient under article 8 to grant him leave to remain here on that basis. They also argued that it was not sufficient that his sole carer when he was a child was also present in the UK and that he needed to show more than that to establish his case under article 8.
The court applied the article 8 tests in the case of R (Huang) when considering the claimants article 8 rights.
The court accepted that the claimant had an existing family life in the UK. The issue was whether his removal would amount to a disproportionate interference with his article 8 rights under the ECHR. The Immigration Judge commented that the evidence in respect of his depression was lacking (as there was no medical evidence to confirm his condition). However, there was no reason for his family members to lie about his condition. The court has some evidence of dependency before it which needed to be considered by a Tribunal.
Ultimately, the Judge was unable to reasonably conclude whether the claimant would have a reasonable chance of persuading a Tribunal as to whether there would be a disproportionate interference with his article 8 rights is removed from the UK. The case was said to be borderline.
However, the Judge quashed the order in order to allow the claimant the opportunity to bring his case before a Tribunal where his article 8 rights would be further explored.
17th February 2011