EV (Philippines) & Ors v Secretary of State for the Home Department

Factual and Procedural Background

This appeal arises from a decision of the Upper Tribunal (UT) dismissing an appeal from the First Tier Tribunal (FTT), which had itself rejected the Appellants' appeal against the Secretary of State's (SOS) refusal on 6 November 2012 to grant indefinite leave to remain based on their applications of 25 March 2011.

The Appellants, a family comprising a Philippine national (the primary applicant) and her husband and three children, initially entered the United Kingdom on work and dependent visas. The primary applicant entered in 2007 with leave to remain until February 2011, her husband joined as a dependent in 2008, and their children followed in 2009.

The family applied for indefinite leave to remain on 7 February 2011; however, these applications were rejected on 8 March 2011 on the basis that the forms used were allegedly invalid. The Appellants then submitted renewed applications on 25 March 2011, which the SOS refused on 15 July 2011, asserting there was no right of appeal. The Appellants filed an appeal, which faced procedural difficulties including multiple adjournments due to SOS non-attendance and lack of file availability.

The FTT initially held that the Appellants had no right of appeal as they had no leave to remain at the time of the 25 March 2011 applications. Following further proceedings and directions, the SOS withdrew the July 2011 decision, refused the March 2011 applications afresh, and issued removal notices. The FTT and UT dismissed subsequent appeals, leading to the present appeal before this court.

Legal Issues Presented

1. Whether, when the best interests of children require their education in the UK not to be disrupted, the need for immigration control can nevertheless constitute a sufficient countervailing consideration to justify the removal of the family.

Arguments of the Parties

Appellants' Arguments

• The Appellants contended that the earlier applications of 7 February 2011 had been wrongly rejected and remained pending, meaning none of them were overstayers and retained residual leave to remain.
• They argued that the lawfulness of the SOS's decision of 6 November 2012 was undermined because it failed to consider the valid earlier applications.
• They submitted that once the FTT found the children's best interests lay in continuing their education in the UK, only the most cogent countervailing reasons could justify removal, and such reasons were absent in this case.

Respondent's Arguments

The opinion does not contain a detailed account of the Respondent's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
VW Uganda v SSHD [2009] EWCA Civ 5	Clarification of the test for disproportionality in removal cases; hardship must be serious, beyond mere inconvenience.	The court endorsed the principle that removal is disproportionate only if the hardship goes beyond mere difficulty, requiring a seriousness test.
ZH Tanzania (FC) v SSHD [2011] UKSC 4	Best interests of the child as a primary consideration in removal decisions; balancing with immigration control.	The court applied the principle that children's best interests must be a primary consideration, but not necessarily overriding; the real-world immigration status is pivotal.
EB (Kosovo) v SSHD [2008] UKHL 41	Recognition of the importance of family bonds and proportionality in removal decisions.	Referenced for the principle that it is rarely proportionate to remove a spouse or sever a genuine parent-child relationship.
Naidike v Attorney-General of Trinidad and Tobago [2004] UKPC 49	Balancing reasons for deportation against impact on family left behind or forced to leave.	Used to illustrate that strong reasons for deportation may justify removal despite severe family impact.
NER v The Netherlands (2007) 45 EHRR 14	Consideration of children's best interests and the difficulties they would face upon removal.	Supported the approach that assessment starts from the real-world fact that the applicant has no right to remain.
Rodrigues da Silva, Hoogkamer v Netherlands (2007) 44 EHRR 34	Factors relevant to family life disruption and immigration control in removal cases.	Applied to highlight the importance of immigration history and obstacles to family life in the country of origin.
JW (China) v SSHD EWCA Civ 1526	Assessment of best interests of the child involving different weightings of factors depending on impact of removal.	Endorsed the approach that different factors must be weighed, particularly the parent-child relationship and the child's integration.
AE (Algeria) v SSHD [2014] EWCA Civ 653	Consideration of public cost in immigration control proportionality assessments.	Noted that public expenditure on education is a relevant factor in the proportionality exercise.

Court's Reasoning and Analysis

The court carefully reviewed the procedural history and the factual findings of the tribunals below. It acknowledged that the Appellants had established private and family lives in the UK and that the children's best interests lay in continuing their education there.

However, the court emphasized the necessity of balancing the best interests of the children with the legitimate public interest in maintaining immigration control for the economic well-being of the country. The court applied established legal principles, including the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to consider children's welfare, and international obligations under the UN Convention on the Rights of the Child.

Drawing on authoritative precedents, the court clarified that the best interests of the child must be a primary consideration but not necessarily the paramount one. The assessment must be grounded in the real-world immigration status of the parents and the family. Since none of the family members had a right to remain, it was reasonable to expect the children to follow their parents to the country of origin.

The court found no error of law in the FTT's proportionality assessment, which took into account the family's limited duration in the UK, the parents' employability and housing prospects in the country of origin, and the fact that the children would not be without education there. The judge had also considered the impact of the parents' immigration history and the economic interests of the UK.

Consequently, the court held that the interference with the family's private life caused by removal was proportionate and lawful.

Holding and Implications

The court DISMISSED the appeal.

The direct effect of this decision is that the Appellants' removal from the UK is lawful and justified on the grounds of maintaining immigration control, despite the best interests of the children in continuing their education in the UK. The court reaffirmed that the best interests of children, while a primary consideration, may be outweighed by strong countervailing public interest factors such as immigration control. No new precedent was established beyond the application of existing principles to the facts.