Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00551/2012

THE IMMIGRATION ACTS

Heard at Bradford
Determination Sent
On 9 April 2013
On 4 June 2013

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

sharon banda

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: In person
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant, Sharon Banda, was born on 16 October 1989 and is a female citizen of Zimbabwe. The appellant had appealed to the First-tier Tribunal (Judge Fisher) against a decision of the respondent dated 30 December 2011 to remove her from the United Kingdom by way of directions under Section 10 of the Immigration and Asylum Act 1999, having refused her claim for asylum. The First-tier Tribunal dismissed the appellant’s appeal in a determination which is dated 28 February 2012. The appellant now appeals, with permission, to the Upper Tribunal. The appellant was not represented before the First-tier Tribunal nor did she have a legal representative before the Upper Tribunal. I was careful to explain the procedures of the Tribunal to the appellant and to give her every opportunity to put her case to me. The appellant addressed the Tribunal with the assistance of an Ndebele interpreter.
2. Granting permission, Judge J F W Phillips found that the grounds raised by the appellant in her application have no merit. However, the judge went on to say at [4]:
“However, whereas it was not mentioned in the grounds there is arguably a Robinson obvious error of law in the determination. The determination makes no mention at all of Article 8 ECHR it is clear that this appellant, who was unrepresented at the hearing, raised Article 8 in her grounds of appeal to the First-tier Tribunal. Whether or not her claim in this respect stood any chance of success it is arguable that it was incumbent upon the judge to at least consider it and make a finding and that his failure to do so was an arguable error of law. Permission to appeal is granted restricted to Article 8 ECHR.”
3. The respondent filed a reply on 25 April 2012:
“The judge has failed to consider Article 8 and this is an error. However it is not accepted that this is an error which affects the substance of the decision as it is not accepted the appellant’s private life in the UK which would only be established from December 2010 [she arrived in the United Kingdom on 15 December 2010] could be found by any judge to be such that it would be disproportionate to remove her. It is for the appellant to prove her case and there is no indication in the determination that at the hearing the appellant gave any evidence of private life that could have led to a positive outcome for her if it was considered.”
4. It is common ground, therefore, that (i) the appellant had raised Article 8 ECHR in her grounds of appeal to the First-tier Tribunal and (ii) Judge Fisher failed to make any mention of Article 8 ECHR in his determination. In her appeal to the First-tier Tribunal, the appellant had written “It applies to me [i.e. the European Convention on Human Rights] Article 8 ... says everyone has the right to respect for his family life. Although I have only been in the UK for over a year I have established a peaceful life where I can enjoy democracy in the freedom without fear of persecution.”
The appellant told me that she has a friend in the United Kingdom but no relatives living here. When she arrived in 2010, she had lived first in Blackheath and then Southampton, moving to Sheffield in December 2011. She attends a local church there.
5. I find that the appeal should be dismissed. The terms in which the appellant set out her Article 8 ECHR appeal to the First-tier Tribunal are barely intelligible. She refers to family life yet has had and now has no family living in the United Kingdom. It is also unclear in what way Article 8 ECHR might be employed to protect the appellant’s “peaceful life” or her enjoyment of “democracy and freedom without fear of persecution.” The appellant has moved home several times since she first came to the United Kingdom and I have no doubt that she has sought to establish friendships and other contacts in her current home area of Sheffield. I accept also that the appellant should not be penalised for failing to raise Article 8 ECHR at the hearing before Judge Fisher given that she was unrepresented on that occasion. However, this is a case in which there is nothing whatever in the evidence to indicate that this appellant has sufficiently strong private life ties to the United Kingdom to engage the protection of Article 8 ECHR at all. Indeed, if Judge Fisher had considered and dismissed Article 8 in the course of a few short sentences, I do not considerate likely that permission would have been granted to appeal to the Upper Tribunal. It is not arguable that Judge Fisher would have concluded that the appellant’s Article 8 ECHR appeal should succeed. The judge erred in law in not dealing with all the grounds of appeal submitted by the appellant but it is an error of law that should not result in his determination being set aside.
DECISION
6. This appeal is dismissed.

Signed Date 9 May 2013

Upper Tribunal Judge Clive Lane