Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00463/2016

THE IMMIGRATION ACTS

Heard in Birmingham
Decision & Reasons Promulgated
On 21 February 2017
On 27 March 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

G D
Respondent

Representation:
For the Appellant: Mrs Aboni, Senior Home Office Presenting Officer
For the Respondent: Ms S Alban, Legal Representative, Sultan Lloyd solicitors

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues and the Respondent was at that time a minor child. Although the Respondent is no longer a child, since the case involved protection issues, it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS

Background

1. This is an appeal by the Secretary of State. For ease of reference, I refer below to the parties as they were in the First-Tier Tribunal albeit that the Secretary of State is technically the Appellant in this particular appeal. The Secretary of State appeals against the decision of First-tier Tribunal Judge Juss promulgated on 11 November 2016 (“the Decision”) allowing the Appellant’s appeal against the Respondent’s decision dated 9 March 2016 refusing his protection and human rights claims.

2. The Appellant is a national of Albania. He was born on 13 January 1999. He arrived in the UK on 13 October 2014 and claimed asylum on 28 October 2014. He was interviewed in the normal manner (taking no account of his age) on 15 April 2015. The Respondent’s decision dated 9 March 2016 granted the Appellant discretionary leave until 13 July 2016 on the basis that he is an unaccompanied minor but otherwise refused his claims.

3. The Appellant’s protection claim is based on the violence he suffered at the hands of his father. He also claims to have experienced problems from people from whom his father borrowed money. I do not need to dwell on the protection claim beyond those brief details because the Appellant’s appeal against the protection claim was dismissed by the Decision and the Appellant has not challenged that outcome.

4. The Judge allowed the Appellant’s appeal on human rights grounds finding that removal would be disproportionate in terms of the Appellant’s private and family life established in the UK and the situation which would face him on return to Albania.

5. The Respondent challenges the Decision on the basis that the Judge failed to take into account section 117B Nationality, Immigration and Asylum Act 2002 (“section 117B”). Permission was granted by Designated First-tier Tribunal Judge Shaerf in the following terms:-

“…the Judge’s treatment of the relevant matters in Part VA is jejeune and fails to comply with the guidance given in Dube (ss117A-117D) [2015] UKUT 0090 (IAC). This is particularly important in light of the judgment in MM (Uganda) v SSHD [2015] EWCA Civ 450. This is an arguable error of law and permission to appeal is granted.”

6. The appeal comes before me to decide whether the Decision contains an error of law material to the outcome and if so to either re-make the decision or remit the appeal to the First-tier Tribunal for redetermination.

Submissions

7. Mrs Aboni relied on the Respondent’s grounds. She summarised those as the Judge having failed to have regard to section 117B and having given undue weight to the Appellant’s best interests. She pointed out in this case that section 117B is relevant not only in terms of immigration control but also because the Appellant is being maintained at public expense. She submitted that although the Appellant says that he is looked after by his foster mother, that care is funded by the local authority.

8. I asked Mrs Aboni about the relevance of the Appellant’s circumstances in Albania. She pointed out that the Judge’s finding at [28] of the Decision that the Appellant would be returning to a hostile environment is contradicted by [21] of the Decision where the Judge finds that the Appellant can return to his family. Mrs Aboni pointed out, in any event, that the Appellant is now an adult and not a dependent child. She also submitted that the Judge failed to take into account the Appellant’s precarious status and to accord appropriate weight to his private life against that background.

9. I also sought Mrs Aboni’s submissions in relation to [35] of the Decision which makes reference to section 117B. She submitted that the Judge has provided inadequate reasons for his finding that the public interest is outweighed by the Appellant’s right to respect for his private life.

10. In response, Ms Alban submitted that the Judge had properly assessed proportionality at [35], taking into account also section 117B. It was clear from what is said at [35] that the Judge found the public interest to be outweighed by what he found to be in the Appellant’s best interests namely to remain in the UK with his foster family. When I asked her to set out what factors led the Judge to find that the Appellant’s right to respect for his private life outweighs the public interest, she noted the Appellant’s age, vulnerability and immaturity.

11. I explored with Ms Alban the question of the relative weight to be given to the Appellant’s private life bearing in mind his precarious status. Ms Alban sought to persuade me that, because the Appellant had discretionary leave which he was entitled to apply to extend, that was not precarious status. I was unpersuaded by that submission. The Appellant was clearly granted discretionary leave because of his age. He could of course apply to extend that leave but that does not mean that his status was not uncertain. Indeed, his immigration status was certain in that he had been granted discretionary leave but that was expressly limited to the period until he became an adult. He could not have expected that it would be automatically extended, particularly having regard to the reason why it was granted and that he is no longer a child.

12. Ms Alban also relied on the case of Deelah and others (section 117B – ambit) [2015] UKUT 00515 (IAC) in support of the proposition that “little weight” does not mean that no weight should be attributed. Although she did not take me to the relevant part of the headnote which supports that proposition and that point does not appear there to be made, I have no difficulty in accepting the proposition as correct. However, the issue in this case is whether the Judge did in fact attribute only little weight. Ms Alban was constrained to accept that it was not clear whether and to what extent the Judge took that approach as the Judge’s findings at [35] were unreasoned.

13. In relation to the Appellant’s recourse to public funds, Ms Alban pointed out that the Appellant is not in receipt of public funds whether directly or indirectly. Now that the Appellant is an adult, his foster parents are paying for his upkeep from their own funds.

14. I asked Ms Alban to make submissions about what should happen if I found a material error of law. The Appellant seeks to adduce further evidence, particularly from Social Services, in support of his case. She began by suggesting that this would be a matter for the First-tier Tribunal. However, as I noted, this is not a case where credibility is at issue (at least not in relation to human rights). I therefore indicated that I was not minded to remit the appeal and intended, if possible, to re-make the decision based on oral submissions at the hearing before me. This was as anticipated by the directions sent to the parties. In particular, [4] of the directions provides that there is a presumption that the re-making of the decision will be made at the same hearing if the First-tier Tribunal’s decision is to be set aside and that this will normally be done based on the evidence before the First-tier Tribunal Judge and any further evidence admitted under rule 15(2A) as well as the parties’ arguments. I therefore sought Ms Alban’s submissions on the evidence before me including the new material.

15. Ms Alban indicated that she may wish to call further oral evidence. I did not have before me any further witness statement from the Appellant himself and his evidence in relation to his human rights claim was accepted. I summarised what I understood to be the Judge’s findings as to the Appellant’s private and family life. Those are that he is well-settled with his foster family who are currently financially and emotionally responsible for his care and needs, that he has no contact with his family in Albania, that he is developing well, particularly in educational terms and that he is contributing to his community in the UK, particularly through his attendance at a gym where he assists others. The Appellant is clearly integrating well into society. I indicated that I would of course hear further evidence if Ms Alban considered it necessary for me to hear it but would otherwise rely on the Judge’s findings and the written evidence before me (including the further evidence which the Appellant seeks to adduce which I indicated I would admit) if I found a material error of law.

16. Having considered the matter, Ms Alban called the Appellant’s foster mother, Mrs Emma Collingwood, to give evidence as to the funding position. Mrs Collingwood indicated that until the Appellant’s eighteenth birthday, she was employed by a private agency and received funding from the local authority to provide care for the Appellant. However, on the Appellant’s eighteenth birthday, she ceased to receive funding. She and her husband have, since then, been paying for the Appellant’s upkeep and his legal costs of this appeal. She admitted that they were struggling to fund the Appellant’s legal costs. It was clear from her evidence though that she and her family have formed a close attachment to the Appellant and are keen to continue to support him. She confirmed that the Appellant is not entitled to any other form of publicly funded benefits as he is an asylum seeker.

17. In relation to the additional material which the Appellant sought to adduce, Ms Alban referred to the letter from the Appellant’s reviewing officer which attests to the strong relationship between the Appellant and his foster family as well as to the statements from the members of that family. She referred also to the letter concerning the Appellant’s educational achievements and the other documents supporting those qualifications.

18. In relation to the other factors which need to be weighed in the balance in the Appellant’s case, Ms Alban asked me to note that, although the Appellant’s protection claim was dismissed, he was found to have been abused by his father in Albania. That is relevant to the reasonableness of return to that country.

19. As to the public interest, Ms Alban pointed out that the Appellant is not a financial burden and that he speaks English. He is developing well educationally and would be able to support himself in the future. He has built up his private life whilst here with a short period of leave. Ms Alban accepted that the period of leave was short but submitted that the fact he was a minor at the time meant that greater than little weight should be given to his private life during his period of residence. Ms Alban accepted that, if I find an error of law and re-make the decision, I have to do so based on the facts as they are at the date of the hearing before me. She accepted that section 55 is not then directly relevant as the Appellant is no longer a child. However, she pointed out that the move from childhood to adulthood does not involve the crossing of a bright line and the Appellant’s relatively young age and maturity as well as his vulnerability arising from his past experiences are factors which I must still take into account in any proportionality assessment.

20. In reply, Mrs Aboni pointed out that the Appellant’s connection with his foster family and the extent of his private life were not disputed. He could not though meet the Immigration Rules (“the Rules”) in relation to his family and private life which must be the starting point. There are no exceptional or compelling factors which render the decision to remove him disproportionate when assessing the case outside the Rules. His immigration status has always been precarious. That position is not altered by the fact that he was a minor at the date of the Decision (although is not now).

21. Although Mrs Aboni did not challenge Mrs Collingwood’s evidence, she submitted that the effect on the public interest in relation to financial independence goes beyond direct receipt of financial benefits and includes for example the indirect burden on the taxpayer of funding, for example, health and education from which the Appellant is clearly benefitting. In relation to the reasonableness of requiring the Appellant to return to Albania, she reiterated her submission that although it was accepted that he suffered from abuse at the hands of his father, the Judge nonetheless found that the Appellant could return to his family.

22. Mrs Aboni accepted that, although section 55 is not directly relevant, the Appellant’s age, maturity and vulnerability are relevant factors. She pointed out though that, even if the Appellant were still a child, his best interests are not the decisive factor and do not mean that he should be allowed to remain.

ERROR OF LAW DECISION

23. I deal first with the inconsistency which the Respondent asserts exists between [21] of the Decision (dealing with the protection claim) and the Judge’s findings in relation to best interests and Article 8 in relation to the situation with which the Appellant would be faced if he returned to Albania. At [21] of the Decision, the Judge says as follows:-

“[21] First, whilst I accept that the Appellant has been a victim of domestic violence given the high incidence of child abuse in a country like Albania which is well documented, and given that the Secretary of State has also accepted this, this does not in itself mean that the Appellant is unable to return back to his family. To be able to show that the Appellant cannot return back to his family, he must refer to a “Convention reason” for refugee asylum status, and domestic abuse in the family, abhorrent as it is, does not so qualify, particularly given that in this case the Appellant has a wider family to whom he can turn to in the form of uncles and aunts, not to mention his own mother and his grandmother who can assist him, now that he is older in finding a place of safety. In EH [2012] UKUT 00348, the Tribunal stated (at paragraph 69) that,

‘It may be practical for applicants in some categories who may have a well-founded fear of persecution in one area to relocate to other parts of Albania where they would not have a well-founded fear and, taking into account their personal circumstances, it would not be unduly harsh to expect them to do so.’
(see paragraph 2.4.5)”

24. I turn then to deal with the Judge’s consideration of the Appellant’s Article 8 claim. That begins at [28] of the Decision as follows:-

“[28] I find that the decision does engage Article 8 rights, because the Appellant came at a tender minor age, and has flourished at school in this country in a stable environment with his foster mother. Mundeba makes it clear that where there is a child under 18, “an action concerning children … undertaken by administrative authorities”, is one where Article 3 of the Convention applies so that, “the best interest of the child shall be a primary consideration”. It is true that Section 55 BCIA duty applies only to children within the UK, but established cases now make it clear that the broader duty doubtless explains why the Secretary of State’s IDI invites Entry Clearance Officers also to consider the statutory guidance issued under Section 55. The child’s welfare includes his emotional needs. The reference to “other considerations” means a reference to other aspects of a child’s life that are serious and compelling, and Mr Justice Blake made it clear in Mundeba that this could include a situation where, “an applicant is living in an unacceptable social and economic environment”, which would be the case were the Appellant to be returned to Albania to live in the same household as his father in a hostile environment there.
[29] Given that Section 55 bites here as a duty upon the Secretary of State, the evidence of neglect or abuse, and the evidence of unmet needs and the evidence of stable arrangements for the child’s physical care in this country are relevant considerations. In this case we have evidence of the foster parent providing the Appellant with support and care in this country, to a child who has been badly domestically abused by his father, in a way that is clearly accepted by the Secretary of State in the refusal letter, and this evidence is not contested. The Appellant only has to prove his case on a balance of probabilities that his “best interest”, which is no more than a primary consideration, is best served by remaining in this country. He does not have to prove this beyond all reasonable doubt.
[30] In the circumstances, I conclude that the Appellant’s welfare would be jeopardised were he to return from the stable environment of support in this country to an uncertain environment in Albania of insecurity and possible continued abuse. The established case law also makes it clear that, “it is difficult to contemplate a scenario where a Section 55 duty was material to an immigration decision and indicated a certain outcome but Article 8 did not” (see paragraph 29 of T (Section 55 BCIA 2009 – entry clearance) Jamaica [2011] UKUT 00483). This is a case where there is, on the facts before me, a moral and physical danger to the Appellant in his home country as against his having developed remarkably well during his formative years in this country, being looked after by a foster parent who has attended court to provide him with support. His foster parent can provide maintenance and accommodation and has a clear desire to care for the Appellant. In these circumstances, the requirements of Article 8 are plainly met. This is for the following reasons.
[31] If one applies Lord Bingham’s tabulations in Razgar (at paragraph 17), the following emerges. First, it is plain that the decision is an interference by a public authority, namely, the Secretary of State, with the exercise of the Appellant’s right to respect for his family and private life in this country, which I have found to be in existence with the foster family. This family life in this country is qualitatively different from the one that the Appellant enjoyed in Albania, which was fraught with hazard and physical abuse, such that his beatings were such that his mother would intervene between his abusive father and the Appellant to take the blows herself. The family life that the Appellant enjoys here is qualitatively different from the family life that the Appellant had in Albania.
[32] Second, the interference here does have consequence of such gravity as to potentially engage the operation of Article 8 (bearing in mind that this is a low threshold).
[33] Third, the interference is in accordance with the law because the Appellant has not succeeded in his asylum or humanitarian claim.
[34] Fourth, however, the interference is not necessary in a democratic society, because it is not necessary for the wellbeing of the country, or for the prevention of crime, or for the protection of the rights and freedoms of others. There is no hint whatsoever of any wrongdoing or illegality by any of the parties concerned here. In fact, all the evidence is that the Appellant’s foster mother is willing and able to provide the Appellant with care.
[35] Fifth, all in all, the interference here is not proportionate to the legitimate public end that is sought to be achieved. In coming to this conclusion, I take into account Section 117B of the 2002 Act, which prioritises immigration control, but this is one consideration as against the Appellant’s Section 55 rights to have a decision that recognises his “best interest” as a primary consideration.
[36] It is well accepted that that material question engaging the proportionality of an administrative decision that threatens to break a family life is whether it is reasonable to expect the Appellant to leave the stability and comfort and support of his existing family and to return back to a hostile environment, which in this case will be with his natural father who has inflicted severe domestic abuse upon him over the years. On the facts of this case, it is not reasonable.”

25. At [21] of the Decision, the Judge is dealing with the issue of risk on return not reasonableness of return. He is there considering aspects of protection against risk and internal relocation away from risk. That is potentially a different question to that which arises when the Judge is considering the proportionality of return and, in particular, what the best interests of this Appellant require. The question of the living circumstances to which the Appellant would be returned as (at that time) a minor child when looking at his private and family life may legitimately import more nuanced considerations than simply whether the Appellant would be at risk of further abuse from his father. The Judge was entitled therefore to have regard to what those considerations would be.

26. If the only error were said to relate to the final sentence of [28], I would not find there to be an error or at least not a material one as it is not a clear finding that the Appellant would return to live with his father. In any event, if the Appellant returned to live with his mother which is one option put forward at [21], that would appear to entail him returning to live in the same “hostile environment” as previously. I am though more concerned about the conflict between the finding at [21] and those at [30] and [36] of the Decision. Whilst it is true that the Judge recognises at [33] of the Decision that the Appellant has failed in his protection claim, he nonetheless finds at [30] that on the facts here “there is… a moral and physical danger to the Appellant in his home country”. Similarly, at [36] the Judge finds that the Appellant’s return would in this case be to his natural father who had abused him in the past. There is no recognition in those paragraphs of the other option that the Appellant could relocate elsewhere in Albania to live with other, wider family members as the Judge had found at [21] of the Decision. For those reasons, there is an inconsistency between what is said at [21] of the Decision and the position as considered at [28] to [38] of the Decision.

27. Even without that inconsistency, though, there is a further more significant error of law made by the Judge in his approach to the Article 8 assessment. This is a slightly unusual case where the Appellant’s protection claim was considered by the Respondent at a time when he remained a minor and his appeal was similarly considered prior to his eighteenth birthday. As such, his best interests clearly had to be considered first as the Judge has done. Bearing in mind the family background from which the Appellant came in Albania, the close bond he had formed with his foster family and the degree of his development in the albeit short period he had been in the United Kingdom, it was open to the Judge to find that the Appellant’s best interests favoured him remaining in the UK.

28. The Judge’s approach to the best interests assessment is guided somewhat oddly by the position in entry clearance cases (see [28] of the Decision and the cases referred to there and at [30] of the Decision). He does recognise though at [29] that the Appellant’s best interests are no more than a primary consideration. However, having correctly directed himself in that regard, he then goes on to refer at [30] to case law which he says establishes that where section 55 is material to an immigration decision and indicates a certain outcome, it would be unusual for Article 8 to point to a different outcome. He reaches that conclusion based on the case of T (Section 55 BCIA 2009 – entry clearance) Jamaica [2011] UKUT 00483. Whilst the quotation on which the Judge relies is indeed part of the headnote in that case, it is a very different case to this. To begin with, that is an entry clearance case. As such, the assessment of Article 8 does not import quite the same public interest considerations as the position where a person is within the UK. Second, it was a case involving the separation of a child from its natural parent. Whilst, as I indicate below at [33] and [34], for the reasons which I there give, I would be prepared to accept for the purposes of this decision, that the close bond between the Appellant and his foster family amounts to family life notwithstanding the lack of natural, blood ties, that is a very different situation to the bond which exists between a child and its natural parent.

29. Even assuming that the Judge was entitled to take the view that, as the Appellant’s best interests favoured him remaining in the UK, there would need to be a strong public interest to outweigh those interests, he was still required to look at the substance of the Appellant’s private and family life, assess the level of disruption which would be caused to it by removal and balance that against the public interest. The more significant flaw in the Decision arises from the Judge’s failure to deal with the claim in that way. First, there is no recognition at [30] onwards of the Decision of the short period that the Appellant has been in the UK compared with the fifteen years that he had lived in Albania. A person reading [30] of the Decision would be left with the impression that the Appellant had grown up in this country (see reference to his “formative years” spent here). Whilst it is the case that the Appellant has spent some of his later teenage years here, he has spent by far the larger proportion of his formative years in Albania. Nor, as the Respondent points out and I have already observed, does the Judge there refer to the fact that the Appellant has a family in Albania to whom he can turn. With the obvious exception of the Appellant’s father, there is no evidence to suggest that his other family members in Albania are other than loving and caring. Whilst the Judge was entitled therefore to note the qualitative difference between the family life of the Appellant in Albania and that with his foster family in the UK, that distinction cuts both ways. The Judge was obviously entitled to point to the greater security and lack of violence in the Appellant’s family life here but he ought to have had regard to the fact that the Appellant’s family in Albania are his blood relatives and, aside his father, have been protective and caring of him in the past.

30. Second, the Judge falls into significant error when balancing the interference with the Appellant’s private and family life against the public interest. That consideration begins at [34] of the Decision where the Judge suggests that the interference does not engage any of the legitimate aims set out in Article 8(2). That runs contrary to established case law (see for example R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 citing with approval the Strasbourg Court in Bensaid v United Kingdom (2001) 33 EHRR 205). It is not at all clear that the Judge there recognises that the public interest is not about the situation for the individual but the wider position of society. Far from it being the case that interference is not necessary for economic well-being or the rights and freedoms of others, those are precisely the stated aims justifying immigration control. Although the Judge does mention section 117B Nationality, Immigration and Asylum Act 2002 and the maintenance of immigration control at [35] therefore, I am satisfied that he does so with a flawed understanding of the importance which that has in the public interest or the reasons why the Respondent relies upon it in the wider interests of society. The Judge has not provided reasons to explain why, on the facts of this case, the interference with the Appellant’s private and family life outweighs the public interest. The best interests consideration is one which was open to the Judge but that is only a primary consideration and is not determinative. It was still necessary for the Judge properly to conduct the usual balancing exercise under Article 8.

31. Further, as the Respondent points out, the Judge has failed, when weighing the Appellant’s rights against the public interest, to note that the Appellant’s (short) period of residence has always been precarious, that the basis on which the Appellant claimed to stay had not been made out and that the Appellant had been funded at public expense (directly and indirectly). In that regard, whilst the evidence before me is that the Appellant’s foster family are now (admirably) paying for his upkeep, it was nonetheless Mrs Collingwood’s evidence that, until the Appellant’s eighteenth birthday, she was paid for his upkeep from public funds. That was therefore the position as at the date of the hearing before the First-tier Tribunal Judge.

32. For those reasons, I am satisfied that the Judge has erred in his approach to the Article 8 assessment. Some of the more minor errors, taken individually, might not be material, if the overall exercise had been carried out properly. I bear in mind what is said by the Court of Appeal in Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045 (at [40]) that different Tribunals can reach different conclusions on the same facts and that an unusually generous view does not necessarily lead to a finding of error. That is the more so when what is considered is an assessment of the facts of an individual case against the wider public interest. However, I am satisfied that, by failing properly to understand the reasoning behind and the importance of the public interest, and by failing to provide adequate reasons justifying the outcome reached the Judge has materially erred in law. I therefore set aside the Decision.

RE-MAKING OF THE DECISION

33. I start by noting that the Appellant is no longer a child. He turned eighteen on 13th January 2017 and therefore prior to the hearing before me. As such, his best interests are no longer a factor which I am required to take into account. I acknowledge and accept what was said by Ms Alban in her submissions that the Appellant has only just turned eighteen. Although as a matter of fact he becomes an adult, that does not mean that the bonds which he shares with his foster family miraculously disappear overnight and cease to have the same relevance as before. That reflects what is said by the Court of Appeal in Singh and Singh v Secretary of State for the Home Department [2015] EWCA Civ 630. As pointed out in those cases, there is no legal or factual presumption as to the existence or absence of family life. For family life to exist between adult family members, there has to be more than the normal bonds of love and affection which exist naturally between those adult family members. On the other hand, just because a person turns eighteen, does not mean that he automatically ceases overnight to have family life with those caring for him. Much depends on the facts and evidence. As also observed in those cases, though, the issue is often likely to be an academic one since if a relationship does not form part of a person’s family life, it inevitably forms part of that person’s private life and respect for (and interference with) both tends to be considered as a whole.

34. In this case, I am (just about) persuaded that the Appellant has a family life with his foster family in the UK. Notwithstanding that the Appellant has been in the UK for less than three years and has lived with his foster family now for only about eighteen months, I accept on the evidence that he has formed a very close bond with that foster family such that he can be said to have formed a family life with them. His foster brother treats him like a brother and the Appellant has been helping his foster brother with the latter’s studies. The closeness of the Appellant to that family unit is reflected in his foster parents’ selfless act in continuing to support him and keep him financially notwithstanding that public funding for his upkeep has ceased. I am therefore prepared to accept that he has formed a family life with his foster family. In any event, that relationship is an element of his private life deserving of some weight in the Article 8 assessment.

35. I accept also on the evidence before me that the Appellant has integrated well into UK society. He speaks English. He has become a model student and has progressed to college where he is studying to be an accountant. It is not though suggested that the Appellant could succeed in making a successful application to remain in the UK as a student. If nothing else, I assume that it would be difficult for him to meet the financial requirements of the Rules in that category.

36. The Appellant has also excelled in his input to his local gym. Those working at that gym speak very highly of the Appellant and note his tremendous ambition.

37. Based on all the evidence before me, I accept that the Appellant has formed a private and family life in the UK and it is clearly the case that he and others around him would prefer him to be able to stay. I fully accept that the Appellant is a credit to his foster family, and is doing very well in his education and in integrating more generally. I do not underestimate the impact of removal of the Appellant to Albania both on him and on his foster family.

38. However, the Appellant’s private and family life has to be balanced against the public interest. It is a sad reality that this Appellant is not the only child to come to the UK because he has experienced traumatic events in his home country. He is also not the only child who has arrived in the UK who has succeeded in integrating well into society here. In some cases, the protection claims of those children succeed and the UK is then bound to permit them to remain. In some cases, the children will arrive at a young age and/or will have nothing to return to in their home country. A combination of the family and private life developed in the UK and the degree of interference based on the circumstances which they would face on return may lead to a successful claim to remain. However, those who no longer have a basis to stay in accordance with the Rules are generally required to leave because the maintenance of effective immigration control is a stated requirement of the public interest and justified by the twin legitimate aims of economic well-being of the country and the rights and freedoms of others (via the medium of a fair and consistent system of control).

39. The stark facts here are that the Appellant has been in the UK for under three years, having spent the first fifteen years of his life in Albania. The Appellant made a protection claim on the basis that he would be at risk on return to Albania. That claim was not accepted. He has clearly had a difficult childhood, suffering abuse at the hands of a violent father. However, he does have other relatives in Albania to whom the First-tier Tribunal Judge accepted on the evidence he could return.

40. The evidence before me also refers to the Appellant’s emotional and intellectual independence. He came to the UK as a child aged fifteen years. He arranged his own journey here and came here alone. It is therefore perhaps to be expected that he would have been forced to mature more quickly than others of his age. Indeed, in spite of Ms Alban’s submissions about the Appellant’s vulnerability and immaturity, the evidence of others who have had dealings with him is that he is independent for someone of his age. Liam Bradley of Birmingham City Council’s Children’s Young Persons and Families Directorate in his assessment dated 28 October 2014 comments that the Appellant shows a level of independence and personal determination and can be “resilient when faced with difficulty”. Those who work alongside him at the gym comment on his emotional and intellectual independence and his high aspirations and ambition.

41. It was not suggested at first instance or before me that there are “very significant obstacles” to the Appellant’s (re)integration in Albania. He was and still is legally represented and I assume therefore that a deliberate decision was taken not to pursue a case on the basis that he can meet the Rules on that account.

42. The Appellant to his credit has learnt English very well. I have already noted the extent to which he has integrated into society here. He is not though financially independent. I recognise that he remains in education and cannot necessarily be expected to be so. I accept Mrs Collingworth’s evidence that she and her husband are paying for the Appellant’s upkeep and are not funded any longer at the expense of the taxpayer.

43. Section 117B starts by referring to the need to maintain effective immigration control in the public interest. Sadly, for this Appellant that means that where a person has no basis to remain in the UK under the Rules, it can only be where removal would be disproportionate outside the Rules that a human rights claim will succeed. I am directed by section 117B (5) to give little weight to private life formed whilst a person has been here on a precarious basis. Although I accept that this does not mean that no weight should be given, and no reference is there made to the family life which I have found that the Appellant has formed with his foster family, the fact remains that neither the Appellant nor his foster family could have had any expectation that the Appellant would be allowed to remain if his protection claim failed as it has.

44. Whilst qualitatively the private and family life which the Appellant has formed could be said to be strong, it remains the position that this is of short duration. It is also the case that, whilst removal will disrupt that family and private life, this Appellant is an ambitious, independent young adult who has family to whom he can return in Albania if he requires that support but who has also shown himself able to relocate and adapt to a completely new lifestyle if he does not wish to return to his family in Albania. Whilst I fully accept that his relationship with his foster family cannot be conducted in the same way as presently if he returns to Albania, he can still maintain contact with those family members from Albania.

45. Balanced against the public interest in maintaining effective immigration control which is a legitimate aim in the economic well-being of this country and the need to ensure that the system operates fairly between individuals who seek to remain here, the refusal to permit the Appellant to remain is proportionate and does not breach his Article 8 rights. Accordingly, I dismiss this appeal.

DECISION

For the reasons given at [23] to [32] above, the First-tier Tribunal Decision did involve the making of an error on a point of law. I set aside the Decision of First-tier Tribunal Judge Juss promulgated on 11 November 2016. For the avoidance of doubt, I preserve Judge Juss’s dismissal of the protection claim for the reasons which he has given. For the reasons given at [33] to [45] above, I re-make the decision, dismissing the Appellant’s appeal against the refusal of his human rights claim. The Appellant’s appeal is therefore dismissed.

Signed Dated: 24 March 2017

Upper Tribunal Judge Smith