EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 35
Lady Clark of Calton	OPINION by LADY CLARK OF CALTON in the Application for Leave to Appeal by MR AA (AP) Applicant; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______________

Act: Caskie; Drummond Miller LLP (for Latta & Co, Glasgow)

Alt: Maciver; Office of the Advocate General

15 April 2014

Summary

[1] The applicant is a citizen of Pakistan who first entered the United Kingdom on 26 June 1998 as a visitor for medical treatment. Thereafter the applicant made various applications on various grounds to remain in the UK, and all were rejected. On about 22 April 2005, the applicant voluntarily left the United Kingdom. On 9 September 2005, he re-entered the United Kingdom using a false passport. Thereafter his wife entered the United Kingdom in June 2010 with a spouse visa which relied on the said false identity. The applicant's wife claimed she was unaware of the false identity. The applicant and his wife had a child who was born in the United Kingdom in April 2011. In October 2011 the applicant was convicted of fraud and a three months custodial sentence was imposed. On 13 January 2012 the applicant sought leave to remain in the UK. Article 8 of the European Convention of Human Rights was considered but his claim was refused for reasons given in the letter by the respondent dated 23 March 2012.

[2] The applicant's appeal to the First-tier Tribunal was considered and refused by decision dated 18 July 2012. Thereafter the applicant sought permission to appeal to the Upper Tribunal. The grounds of appeal, summarised in paragraph 3 of the Upper Tribunal decision dated 6 June 2013, were to the effect that the First-tier Tribunal judge in considering the article 7 claim had failed to consider properly the best interests of the applicant's child, in particular the health issues, and had not carried out a proper balancing exercise in considering proportionality. It was submitted that disproportionate weight had been given to the applicant's poor immigration history in considering proportionality and that the child was blameless in relation to the immigration history of the applicant. Leave to appeal was granted.

[3] Thereafter in considering the appeal, the Upper Tribunal in paragraphs 10 and 11 of the decision dated 6 June 2013 stated:

"10. While I am satisfied that the FtTJ has erred in law by failing to make specific reference to the best interests of the child as a primary consideration, I am not satisfied that this is an error that requires the decision to be set aside. In paragraph 33, she identifies that the child will be returned to Pakistan with two loving parents and at paragraph 36 that the Appellant himself has knowledge of using the medical system in Pakistan and that it was likely that financial support would be available from the latter's family. At paragraph 34, the FtTJ considers a report by Dr Roger Jeffery regarding the availability of medical facilities in Pakistan and she provides her observations in that report at paragraph 34 in some detail and concludes that Dr Jeffery had not excluded the availability of the child's medication; his report is based on data from 2000, which was therefore eleven years out of date; the child would not be prevented from seeking specialist assistance in Pakistan; Dr Jeffery had not excluded the availability of any paediatric cardiac surgeons in Pakistan; and the child would always be able to seek treatment abroad should a transplant be required, although it was not certain that this would be necessary. At paragraph 35, the FtTJ considers the report from a consultant paediatrician and a letter from the child's cardiologist, which respectively indicate that the child is not on any regular medication, there were no other concerns regarding his growth or development, and this child is currently well.

[11] Had the FtTJ adopted the recommended structured approach by considering the best interests of the child as a primary consideration, I find it impossible to see how the outcome would be any different, given that the best interests of the child are not necessarily determinative of the proportionality question. It is clear from the FtTJ's decision, read as a whole, that she has fully considered all relevant aspects of the child's circumstances and concluded that the proposed removal of the Appellant and his dependents would be proportionate. It is clear that the FtTJ has carried out the balancing exercise in a manner consistent with the Upper Tribunal decision in MK. I can find no reason on the basis of the submissions before me to set aside the First-tier Tribunal decision of 18 July 2012."

[4] The Upper Tribunal concluded that the decision of 18 July 2012 did not contain an error law such that its decision required to be set aside. The appeal by the applicant was dismissed.

[5] The applicant sought leave from the Upper Tribunal to appeal to this court but this was refused by decision dated 18 July 2013. The applicant now seeks leave to appeal from this court.

Submissions by counsel for the applicant

[6] Counsel started his submissions with the question "Did the First-tier Tribunal decide it was in the best interests of the child to remain in the UK and if so were the child's best interests outweighed by other considerations which fell to be considered in the balancing exercise. Counsel submitted that it was not clear from the First-tier Tribunal's decision what the judge concluded about the best interests of the child. My attention was drawn to the written submissions of the respondent which advanced the submission that the judge had concluded that the best interests of the child was to be returned to Pakistan.

[7] Counsel made reference to MK (Best Interests of Child; India) 2011 UKUT 00475 (IAC). The court in that case considered that the best interests of the child was a matter which has to be addressed first as a distinct inquiry independent of considerations relating to the public interest such as effective immigration control. The court also considered that the consideration of the best interests of the child has to be an overall assessment taking into account all relevant factors and the impact on a child's development in the broader sense. Counsel also made reference to ST (Child Asylum Seekers) Sri Lanka (2013) UKUT00292 (IAC) paragraph 77.

[8] Counsel for the appellant also criticised the approach of the First-tier Tribunal in relying on N v UK [2008] ECHR 453 and the failure to properly carry out the proportionality assessment. Counsel submitted that a major factor in the assessment of the child's best interests is the certainty of ongoing essential medical treatment in the UK. Counsel emphasised the very serious nature of the medical condition of the child and the uncertain prospects of necessary treatment being available in Pakistan. A conclusion required to be reached about this. There required to be a proper proportionality assessment leaving out of consideration the applicant's poor immigration history for which the child was not to blame.

[9] Counsel focused on the approach of the Upper Tier Tribunal in their decision dated 6 June 2013. He founded on the fact that the Upper Tribunal was satisfied that the First-tier Tribunal had erred in law by failing to make specific reference to the best interests of the child as the primary consideration. He criticised the Upper Tribunal for concluding that they were not satisfied that this was an error that required the decision to be set aside. Counsel submitted that the error was material as it went to the foundation of the decision-making. It was not enough for the First-tier Tribunal to list issues relevant to the child and relevant to proportionality. This was particularly so in circumstances where the First-tier Tribunal wrongly relied on N v UK and the approach to the medical issues in the case was strongly influenced by that. Counsel submitted that the Upper Tribunal's conclusions in paragraph 11 were ill‑founded because the Upper Tribunal, having recognised the error in law, ought to have remitted the case back to the First-tier Tribunal with directions for reconsideration or remade the decision. The Upper Tribunal was not entitled to rely on the approach of the First-tier Tribunal which was plainly wrong. There was no attempt by the Upper Tribunal to remake the decision by adopting the correct structured approach to article 8 to decide the best interests of the child and having reached a decision, then consider the proportionality of removal.

[10] Counsel adopted his written submissions to the extent which he founded on these in oral submission. He also sought to persuade me that this case might be a suitable test case to answer some of the unresolved issues in GS and EO (Article 3 - Health Cases) India 2012 UKUT 00397 (IAC).

Submissions by counsel for the respondent

[11] Counsel for the respondent adopted his written note of argument which it is unnecessary to summarise. Counsel conceded for the purposes of this hearing that the First-tier Tribunal had fallen into error in not adopting the structured approach identified in ZH (Tanzania) 2011 2AC 166. That was the conclusion of the Upper Tribunal. He referred also to S v Secretary of State for the Home Department (2013) CSOH 43 and Zoumbas v Secretary of State for the Home Department (2013) UKSC 74.

[12] Counsel submitted that albeit the structured approach was absent, the First-tier Tribunal judge had fully considered all relevant aspects of the child's circumstances in her proportionality decision-making. He submitted that the Upper Tribunal was correct to conclude that the error of law made by the First-tier Tribunal was not material because, in the view of the Upper Tribunal, the outcome would have been no different. He submitted that it is implicit in the approach of the First-tier Tribunal that the First-tier Tribunal did not consider it to be against the child's best interests to return to Pakistan. Having considered various factors specified in some detail, the First-tier Tribunal was entitled to conclude that the child's removal from the UK to Pakistan was proportionate. Counsel submitted that the First-tier Tribunal was correct to recognise that the child of the applicant had no right to insist upon continuing health care in the UK and the health care issue was part of the assessment of the many factors taken into account by the First-tier Tribunal. Counsel submitted that the First-tier Tribunal had not wrongly applied N v UK. He submitted that properly construed, the Tribunal was not applying the article 3 test in N v UK but considering the health issues as part of the proportionality assessment under article 8.

Discussion

[13] It was not in dispute in this case that the relevant test which I should apply is set out in Hoseini v Secretary of State for the Home Department 2005 SLT 550. The test is that:

"(a) the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard."

The applicant prayed-in-aid separately both branches of the test.

[14] In this case it appears that the medical condition of the child is very serious. The child has a combination of complex heart defects and corrective surgery is not possible. All surgical operations are aimed towards long term palliation only. According to the uncontested medical evidence before the First-tier Tribunal from the treating consultant cardiologist, Dr Walayet RHSC from NHS Lothian, the child requires another two heart operations and other continuous drug treatment and ongoing specialist care before the age of 5. There is a serious issue according to said expert as to the extent of relevant medical treatment which could be accessed on behalf of the child in Pakistan. I am of the opinion that this is a case in which it is strongly arguable that the necessity for medical treatment which is available in the UK and the seriousness of the complex cardiac condition of this very young child point to the best interests of the child to remain in the UK. However one interprets the evidence about available healthcare for the child in Pakistan, it seems plain that the healthcare available for the child in the UK is both certain and available as part of a healthcare package likely to maintain and prolong her life. I consider that it is very important in the context of this case to come to a view about the best interests of the child as a primary consideration in the structured way recommended in ZH (Tanzania) and to consider the impact removal will have on the child. It might be thought that the medical needs of the child in this case weigh very heavily in the balance, albeit there are other factors which require to be considered in the proportionality exercise which might outweigh the best interests of the child. But in my opinion one cannot properly come to a decision on proportionality in a case such as this without coming to a reasoned view about the best interests of the child and what weight is to be given to that.

[15] The Upper Tribunal accepted that the First-tier Tribunal had erred in law in the approach to the best interests of the child and article 8. But the Upper Tribunal appear to consider that as some factors and issues which might be relevant to the best interests of the child and proportionality were identified by the First-tier Tribunal, there was no material error and that therefore the decision of the First-tier Tribunal should not be set aside. The Upper Tribunal do not attempt themselves to remake the decision following the correct structured approach.

[16] In my opinion, it is not sufficient merely to list or catalogue circumstances affecting the child. The First-tier Tribunal and the Upper Tribunal rely on paragraphs 28 to 36 of the Upper Tribunal in which said Tribunal purports to consider "the child of the marriage". In my opinion, the judge makes no attempt in these paragraphs to come to a conclusion about the best interests of the child as a primary consideration in a structured way. I am particularly concerned by the approach in paragraph 32 in which the judge stated that N v UK is found "to be exactly in point". N v UK is dealing with article 3 issues affecting an adult. It is not in my opinion relevant to issues about the best interests of the child. As I have stated, I consider that there is a decision to be made about the best interests of the child in the circumstances where the treating doctor and Dr Jeffery both consider that this child with very serious and complicated heart defects who has planned treatment available in the UK will have a substantial threat to future health and survival if returned to Pakistan. One of the difficulties which I have with the approach adopted by the First-tier Tribunal is that there is a list of factors and a confusion in the reasoning but in my opinion the best interests of the child are never properly addressed. There is a decision to be made about the weight to be given to the various circumstances and whether the child's best interests lie in the UK or not. In this case the medical needs of the child are arguably very compelling. In my opinion the issues relating to the child require to be properly considered and decided in accordance with the relevant case law.

[17] I am not persuaded this case is a suitable vehicle as a test case, particularly bearing in mind that in my opinion there has been a failure to carry out a proper assessment of the article 8 rights of the child. Article 3 issues are not raised by the applicant in the grounds of appeal.

[18] I am satisfied however that the first branch of the Hoseini test is met and I grant leave to appeal.