Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02354/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22nd December 2015
On 20 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE O'RYAN

Between

G Y
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Jones of Counsel instructed by Malik & Malik Solicitors
For the Respondent: Mr Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS
1 This is an appeal against the decision of the First-tier Tribunal dated 12 June 2015 (Judge of the First-tier Tribunal Morgan) dismissing the Appellant's appeal against the Respondent's decision of 27 January 2015 to remove him administratively under s.10 Immigration and Asylum Act 1999. The Appellant is a national of Kosovo, and first entered the United Kingdom in 1999, claiming asylum 1 November 1999. The details of that claim are not before me, but related to the then ongoing conflict in Kosovo. The appeal was dismissed in October 2001. Thereafter, the Appellant evaded immigration control, remaining in the United Kingdom unlawfully. There is a suggestion in the Respondent's decision that the Appellant made contact with the Respondent in 2010, but as far as I am able to determine, no application for leave to remain was made by the Appellant until 2012, after the Appellant had become aware he was HIV positive and had fallen ill with cancer.
2 That application was refused in February 2014 with no right of appeal. Further representations of November 2014 were treated as a fresh asylum and human rights claim, resulting in the present decision of 27 January 2015. The Appellant had claimed that he was at real risk of serious harm in Kosovo as a result of his homosexuality, and also argued that his removal to Kosovo would be in breach of Article 3 ECHR on the grounds that he would not be able to obtain in Kosovo the level of medical care that he is receiving in the United Kingdom, and that his removal would bring about a significant deterioration in his health.
3 When the appeal came before the First tier Tribunal on 11 June 2015, those acting for the Appellant indicated that the Appellant was no longer pursuing the appeal on asylum or Article 3 ECHR grounds, but only on Article 8 ECHR, on the grounds that his removal would amount to a disproportionate interference with the Appellant's private and family life that he enjoyed in the UK.
4 At paragraph 12 onwards in the decision, the judge set out the Appellant's evidence as to his private life in the United Kingdom. At paragraph 15 it was recorded that the Appellant had been in a same-sex relationship with his British partner since 2011; the couple did not live together but they had plans to live together in the future; the Appellant however had been distancing himself from his partner because he does not know how to tell his partner about his HIV status and his immigration history; the partner did not know about or attend the appeal hearing; the Appellant had lost some friends since they became aware of his HIV status and he feared the stigma that accompanied this; he feared that if he were to tell his partner that this might end the relationship. At paragraph 16 the judge recorded the Appellant's evidence that he feared having to hide his sexuality if returned to Kosovo due to discrimination in that country. At paragraph 17 the judge recorded the submissions behalf of the Appellant that the various factors affecting the Appellant cumulatively would amount to a breach of his and his partner's rights under Article 8 ECHR.
5 At paragraph 17 the judge expressed considerable sympathy for the Appellant, having left Kosovo at a time of significant upheaval. The Appellant had in the last few years been diagnosed with HIV and cancer which now appeared to be in remission. The judge held at paragraph 17 that even considering those factors cumulatively they did not enable a finding that the Appellant's return to Kosovo would be disproportionate; it was harsh in all the circumstances but did not amount to a disproportionate breach of either the Appellant's or his partner's private or family life. At paragraph 18 the judge considered the application of part 5A of the Nationality, Immigration and Asylum Act 2002, (although referring to this as Part 5A of section 19 of the Immigration Act 2014). The judge stated as follows:
"I have given considerable weight to the public interest question. Section 19 does not assist the Appellant in demonstrating that his removal would be disproportionate. On the contrary it necessitates a finding that his removal is in the public interest. I find that the weight to be given to the requirements of immigration control outweighs the interference with the Appellant's private and family life. The Appellant is an unlawful entrant to the United Kingdom who has submitted an unsuccessful asylum application and subsequently absconded and remained in United Kingdom, worked unlawfully and sought access to the NHS. In summary, on the particular facts, I am unable to find that it is disproportionate to expect the Appellant to return to Kosovo."
6 At paragraph 19, the judge expressed remarks which are not determinative of the appeal, but invited the Respondent to consider a pragmatic grant of discretionary leave or temporary admission to the Appellant. I find that this paragraph does not form any relevant part of the reasoning of the judge.
7 An application for permission to appeal was made to the First-tier Tribunal but permission was refused on 23 July 2015. The application was renewed on the same grounds which in summary argued that the judge's finding that 'Part 5A necessitates a finding that his removal is in the public interest' was demonstrably wrong; if that were the case then no Appellant could succeed unless satisfying all parts of s.117B. In granting permission to appeal on 21 September 2015, Upper Tribunal Judge Coker expressed the view that it was arguable that the First tier Tribunal judge incorrectly interpreted s.117 A to D, and failed to take proper account of the relevant immigration rules, in stating that the public interest required the Appellant's removal. It was arguable that the public interest was one of the factors to be considered in assessing whether removal is disproportionate rather, than imposing a requirement.
8 Before me Ms Jones appeared on behalf the Appellant. I turned first however to Mr Tarlow appearing for the Respondent and invited his views as to whether or not the First-tier judge had erred in law. He relied upon the Rule 24 notice dated 12 October 2015 which argued that the judge had correctly directed himself in law, and had at paragraph 18 made a decision on the basis of proportionality, in balancing the weight to be given to immigration control as against the interference with the Appellant's private and family life. It was submitted that the grounds were no more than a disagreement with the findings of the First-tier Tribunal. Mr Tarlow added to that what the judge had done was to merely give considerable weight to the public interest question. I did not need to hear from Ms Jones on the error of law issue.
Discussion
9 Part 5A of the nationality, immigration and Asylum act 2002 provides as follows, in so far as is relevant:
"117A Application of this Part
(1) This Part applies where a court or Tribunal is required to determine whether a decision made under the Immigration Acts-
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or Tribunal must (in particular) have regard-
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom."
10 The meaning an application of part 5A NIAA 2002 has been considered in a number of cases. Relevant amongst those are the following:
(i) Dube (ss.117A-117D) [2015] UKUT 90 (IAC): Headnote:
"... (e) sections 117A-117D do not represent any kind of radical departure from or "override" of previous case law on Article 8 so far as concerns the need for a structured approach. In particular, they do not disturb the need for judges to ask themselves the five questions set out in Razgar [2004] UKHL 27. Sections 117A-117D are essentially a further elaboration of Razgar's question 5 which is essentially about proportionality and justifiability.
And at para 25:
25. Fifth, we do not regard ss. 117A-117D as being any kind of radical departure from or "override" of previous case law on Article 8 so far as concerns the need for a structured approach. In particular, it does not disturb the need for judges to ask themselves the five questions set out in Razgar [2004] UKHL 27. Indeed it seems to us that in effect ss.117A-117D are essentially a further elaboration of Razgar's question 5 which is essentially about proportionality and justifiability [1](Lord Bingham's question 5 asks, assuming that in reply to previous questions it has been established that there had been an interference with the right to respect for private and family life, " [i]f so, is such interference proportionate to the legitimate public end sought to be achieved?"). We derive this from the definition given in s.117A(3):
"In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2)." (Emphasis added)
26. Sixth, bearing in mind that ss.117A-117D focus only on certain of the steps judges must take when dealing with Article 8 grounds (and they do not, for example, deal with whether private or family life exists or whether there has been an interference with it), it cannot be said that its provisions are intended to modify existing learning as to when it is or is not an error of law for a judge to have express regard to specific elements of a structured approach.
(ii) Further, in Forman (ss 117A-C considerations) [2015] UKUT 412 (IAC):
"17. We consider the correct analysis of sections 117A and 117B to be as follows:
(i) These provisions apply in every case where a court or Tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life under Article 8 ECHR and, as a result, would be unlawful under section 6 of the Human Rights Act 1998. Where a Court or Tribunal is not required to make this determination, these provisions do not apply.
(ii) The so-called "public interest question" is "the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).", which appears to embrace the entirety of the proportionality exercise.
(iii) In considering the public interest question, the court or Tribunal must have regard to the considerations listed in section 117B in all cases: per section 117A(1) and (2).
(iv) In considering the public interest question in cases concerning the deportation of foreign criminals, the court or Tribunal must have regard to the section 117B considerations and the considerations listed in section 117C.
(v) The list of considerations in sections 117B and 177C is not exhaustive: this is clear from the words in parenthesis "(in particular)".
(vi) The court or Tribunal concerned has no choice: it must have regard to the listed considerations.
To this we would add the following. While the court or Tribunal is clearly entitled to take into account considerations other than those listed in section 117B (and, where appropriate, section 117C), any additional factors considered must be relevant, in the sense that they properly bear on the " public interest question". In this discrete respect, some assistance is provided by reflecting on the public law obligation to take into account all material considerations which, by definition, prohibits the intrusion of immaterial factors. We are not required to decide in the present case whether there is any tension between section 117A (2), which obliges the court or Tribunal concerned to have regard to the list of considerations listed in section 117B and, where appropriate, section 117C) and the contrasting terms of section 117B (5) and (6) which are framed as an instruction to the court or Tribunal to attribute little weight to the two considerations specified."
(iii) And further, in Treebhawon and others (section 117B(6)) [2015] UKUT 674 (IAC): headnote:
"(i) Section 117B (6) is a reflection of the distinction which Parliament has chosen to make between persons who are, and who are not, liable to deportation. In any case where the conditions enshrined in section 117B(6) of the Nationality, Immigration and Asylum Act 2002 are satisfied, the section 117B(6) public interest prevails over the public interests identified in section 117B (1)-(3).
(ii) Section 117B (4) and (5) are not parliamentary prescriptions of the public interest. Rather, they operate as instructions to courts and Tribunals to be applied in cases where the balancing exercise is being conducted in order to determine proportionality under Article 8 ECHR, in cases where either of the factors which they identify arises".
And
"20. In section 117B(6), Parliament has prescribed three conditions, namely:
(a) the person concerned is not liable to deportation;
(b) such person has a genuine and subsisting parental relationship with a qualifying child, namely a person who is under the age of 18 and is a British citizen or has lived in the United Kingdom for a continuous period of seven years or more; and
(c) it would not be reasonable to expect the qualifying child to leave the United Kingdom.
Within this discrete regime, the statute proclaims unequivocally that where these three conditions are satisfied the public interest does not require the removal of the parent from the United Kingdom. Ambiguity there is none.
21. Giving effect to the analysis above, in our judgment the underlying Parliamentary intention is that where the three aforementioned conditions are satisfied the public interests identified in section 117B(1) - (3) do not apply."
11 My analysis of these authorities is that the considerations set out in s.117B are matters to which regard must be had in determining the public interest question. Save perhaps for the positive satisfaction of the criteria set out in s.117B(6), which following the analysis in Treebowan, would appear to indicate that the public interest does not require removal, the satisfaction or non-satisfaction of the other considerations in s.117B do not dictate a specific answer one way or the other in the determination of whether it is in the public interest to remove an individual; they are merely matters to which regard must be had.
12 I find that although the judge otherwise appears to have correctly directed himself in law as to the assessment of the proportionality of the Appellant's proposed removal, his comment at paragraph 18 that part 5A 'necessitates a finding that his removal is in the public interest' represents a misdirection in law. I find that such a misdirection is sufficiently concerning that I cannot be satisfied that had the misdirection not taken place, that the same outcome would have resulted. The error is therefore material.
13 The judge's decision as to the proportionality of the Appellant's proposed removal being unsound, therefore, I set aside the judge's decision. I announced that that was my conclusion during the hearing.
14 I discussed with the parties how the matter might then proceed. Both were content for me to re-hear any oral evidence that would be required, and to hear submissions as to the remaking of the decision.
15 I therefore proceeded to hear evidence from the Appellant. Without the use of interpreter, the Appellant adopted his witness statement of 2 June 2015. He was asked additional questions by Ms Jones to the effect that he had no family in the UK or in Kosovo. His father had died in 1999 during the war, and he had not had contact with his mother since he left Kosovo. He had no brothers or sisters. He had no remaining friends in Kosovo either.
16 Cross-examined by Mr Tarlow, the Appellant confirmed that he was in a relationship in the United Kingdom with a man called Richard.
17 I asked the Appellant some questions. I asked if he had friends in United Kingdom to which he stated that he used to but that since his diagnosis with HIV and cancer he had lost many. I asked whether he was out as a gay man in the United Kingdom. He said not really; he would go out at night to parks. He used to go to clubs but stopped years ago. He stated that it was hard to be openly gay because homophobic people attack gay people every day. He was aware of two attacks taking place in Finsbury Park. He used to have both straight and gay friends. I noted that he relied on three letters from charitable organisations (to which I make further reference below) but asked him if he had any friends outside of these organisations. The Appellant stated that he had a friend from Germany who was a gay man.
18 He had not tried to contact his mother, having no telephone number for her. He had not asked for any assistance from eg the Red Cross in trying to locate his mother. He was financially dependent on asylum support. He had not worked in the UK for the last three years; he had previously worked as a chef in a kitchen.
19 In re-examination, Ms Jones asked the Appellant why he had not told his partner about his HIV status or immigration status; the Appellant stated that he had tried to tell him but that that was not easy for him.
20 I heard submissions from Mr Tarlow. He submitted that it was in the public interest that the Appellant be removed, but this was not determinative of the outcome of the appeal. The Appellant had been present in the United Kingdom illegally for the whole of the time that he had been here. He had only made contact with the Home Office in 2012 because he needed further medical treatment which could not have been paid for without being on asylum support. Any relationship that he had with his partner could not be that strong as the Appellant had not told the partner about his immigration status or HIV status. If the nature of the relationship changed then the Appellant could make an application to enter the United Kingdom from Kosovo.
21 On behalf of the Appellant Ms Jones argued that the Appellant satisfied the requirements of paragraph 276ADE(1)(vi) on the grounds that there would be very significant obstacles to the Appellant's integration into Kosovo if he were required to leave the United Kingdom and she also relied upon article 8 outside the rules. The Appellant had lived in the United Kingdom for 16 years having arrived at the age of 23 and was now 40 years old. He is homosexual. Ms Jones argued that it was difficult to be homosexual in Kosovo due to discrimination there. Although it was not illegal under Kosovan law, there was discrimination and dislike towards gay men in that country. Ms Jones referred me to passages in the Appellant's objective bundle between pages 20 to 45 as to levels of discrimination against gay men. The Appellant would have difficulty in reintegrating into life in that country such that he should be granted leave to remain under the immigration rules.
22 Outside of the immigration rules, Ms Jones addressed the issues in s. 117B NIAA 2002. The Appellant spoke English fluently. He had also previously worked as a chef, and demonstrated that he was capable of being financially independent, although he had experienced ill-health more recently. She argued that overall, the Appellant's removal from the United Kingdom would amount to a disproportionate interference with his right to private and family life in the UK.
Remaking
23 I first consider the Appellant's potential entitlement to leave to remain under the immigration rules. It was argued on behalf of the Appellant that he at satisfied the requirements of paragraph 276ADE(1)(vi) on the grounds that there would be very significant obstacles to his integration into life in Kosovo upon return.
24 I accept that the Appellant is a gay man. There is no real dispute about that. I have regard to the following evidence as to the position of the LG BT community in Kosovo; not only matters to which my attention was drawn, but other matters also contained in the Appellant's objective bundle.
25 At page 20, an article in 'Forced Migration Review' seemingly from April 2013 suggests that despite Kosovo being one of only 10 European states to have constitutionally banned discrimination on the ground of sexual orientation, society remains deeply traditional and even hostile towards sexual minorities. It was stated that walking around the busy streets of Pristina, there were no visible signs of an LGBT community and no gay bars or clubs. Social conventions dictated that most young people in Kosovo live with their families until they marry; those who come out as LGBT risk being kicked out of the family home.
26 However, it was stated that despite this, the LGBT community in Kosovo is very much alive and recently a small number of LGBT individuals have dared to break the silence and speak out. A report from ILGA Europe entitled 'Annual Review of the Human Rights Situation of Lesbian Gay Bisexual Trans and Intersex people in Europe 2015 - Kosovo' dated 18 May 2015, provides that while a general atmosphere of hostility towards LGBTI people remained, the government and police in 2014 demonstrated professionalism in dealing with members of the LGBTI community and issues linked to sexual orientation and gender identity. Despite promises from government, laws against discrimination and for gender equality stalled after the general election in June.
27 The US State Department report has a section on societal abuses, discrimination, and acts of violence based on sexual orientation and gender identity. It was recorded that there was no official discrimination in employment, housing, statelessness, or access to education or health care, but societal pressure persuaded the majority of LGBT persons to conceal their sexual orientation or gender identity. A youth initiative for human rights report held that 40% of LGBT individuals were afraid to acknowledge their identity and 10% had been physically assaulted at least once as a result of being perceived as LGBT. LGBT activists affected by a December 2012 assault on an NGO office reported officials treated them professionally and actively pursued the assailants. Another local NGO observed that LGBT individuals generally felt insecure and frequently complained of threats to their personal safety but rarely reported incidents to authorities due to the stigma attached to homosexuality. It was said stated that the government took steps to signal its support for LGBT rights and problems. A later passage of the report provides that an LGBT organisation in Kosovo claimed that the LGBT community faced physical attacks and threats during the year, particularly via social and online media and on radio. In August, three men assaulted a gay man in Prizren. In June, a transsexual 17-year-old in Pristina was verbally abused and threatened by three other boys his age, and in April, an 18-year-old gay man was verbally abused by his schoolteacher.
28 Assessing that evidence, my view is that it was appropriate for the Appellant to have indicated before the First tier Tribunal that he was no longer pursuing an argument that he faced a real risk of serious harm Kosovo on the grounds of his sexuality. I have summarised the evidence above in order to assess the distinct, but associated issue, whether the Appellant would have very significant obstacles in integrating into Kosovo on return. I accept that on the face of that evidence there is discrimination against homosexual men in Kosovo. However, the extent of the discrimination is not, from the evidence I have seen, very significant. The evidence as to presence of an LGBT community is somewhat contradictory ('no visible signs'/'very much alive'). The attitude of the authorities in Kosovo towards the LGBT community appears to be positive. Specific and recent reports of physical assaults are few in number. Whilst it is said that some members of the LGBT community may face ostracism from their families, the Appellant has no family that he is contact with in any event. I do not find that the Appellant would have very significant obstacles in integrating into Kosovo arising out of his homosexuality.
30 I acknowledge that the Appellant has been out of Kosovo for a prolonged period. He left there at the age of 23, and is now 40 years old. He is not in good health. However, it has been conceded (again, appropriately, I find) that his removal would not infringe his rights under Article 3 ECHR on medical grounds. However, the Appellant has not asserted that he no longer speaks Albanian, and his formative years, up to the age of 23, were spent in that country. He will be familiar with the societal norms in that country. Further, the humanitarian situation and state of the economy has improved in Kosovo since the time that he left the country in 1999, in a state of war. I do not find that there are very significant obstacles to the Appellant's integration into Kosovo arising from his prolonged absence from the country. He does not meet the requirements for leave to remain on grounds of private life as set out in the immigration rules.
31 Considering, outside of the rules, whether the Appellant's removal from the United Kingdom would amount to a disproportionate interference with his private and family life, I find that the Appellant has not established that he has a family life his partner Richard that he has mentioned. The Appellant may well be in a relationship with this man, but there is absolutely no evidence from Richard himself. The reason for this lies entirely at Appellant's door; he has not told Richard of any difficulties with his immigration status or that the Appellant is HIV-positive. This is a conscious decision on the part of the Appellant not tell his partner of these matters. The Appellant says that he fears the consequences of telling Richard of these matters. I find that the fact that he has not done so tends to indicate that their relationship is not particularly strong. In the absence of evidence from Richard as to the strength of the claimed relationship, and in light of the admitted fact that the Appellant has never lived with Richard, I find that it has not been established that the Appellant and Richard have a family life between them.
32 Considering the Appellant's private life in United Kingdom; I find, applying s.117B (2) and (3) NIAA 2002 that it is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English and are financially independent. The Appellant is not currently financially independent. Further, the fact that he speaks English fluently does not give him any positive right to reside in United Kingdom (AM (s117B) [2015] UKUT 260 (IAC) , headnote 2).
33 The Appellant relies on evidence of his contact with a number of voluntary organisations. A letter from the Earnest Foundation in London dated 7 October 2015 explains that it is a registered charity promoting a safe and healthy living community, helping to improve the quality of life for people living with and affected by HIV and AIDS. It confirms that the Appellant joined the organisation (although it does not state when) and has developed a family bond with the members, especially those of the same sexual preference. The Appellant's act of volunteering to the services of the organisation had been of great benefit to the Appellant in terms of overcoming depression, anxiety, loneliness and he has gained confidence and self-esteem. The organisation had referred the Appellant to the Food Chain for provision of food items. The Appellant had also been active in the organisation's advocacy programme at encouraging people to come for early HIV testing.
34 A letter from 'Body and Soul', another charity in London for children and teenagers and adults living with or closely affected by HIV, dated 26 October 2015, states that the Appellant first came into contact with that organisation in March 2015, and has attended each of their weekly service evenings since that time. He had received a number of complimentary therapies for managing stress and anxiety. He had attended a number of workshops such as medication adherence, immigration, nutrition, sexuality and physical and mental health. He had built strong relationships with both the group members and with staff which had been an important source of support to him and without them his mental and physical health could be easily compromised.
35 A letter from the 'Cara' organisation dated 4 September 2015 confirmed that the Appellant had been a client of theirs from March 2015. The organisation had been providing support for the Appellant including peer and emotional support, with the Appellant regularly attending their weekly peer support group meetings. There are letters in the Appellant's main bundle confirming that the Appellant had had assistance from the British Red Cross in terms of food support, and also from Food Chain.
36 It is to be noted that there were no live witnesses in support of the appeal aside from the Appellant himself. Although the letters from the various charitable organisations I have mentioned state that he has had involvement with their services, and has developed a number of friendships with staff members and other service users, there are no witness statements from any specific individual explaining the nature of any friendship the Appellant has with them personally. I find that the nature of the Appellant's private life that he has in the United Kingdom is a fairly limited. He struggles financially, as clearly demonstrated by his reliance on food aid; he is not working, and has no workplace friendships. He has no family in the United Kingdom.
37 That private life, such as it is, is, in accordance with s.117B(4), NIAA 2002, to be given little weight, on the grounds that it has been developed during a period when the Appellant has been in the United Kingdom unlawfully. I do attach some weight to that private life, however.
38 The Appellant has therefore demonstrated that he has some connections with the United Kingdom. I accept that the removal of the Appellant would amount to an interference with the private life that he has developed in the United Kingdom. I find that that interference will have consequences of sufficient gravity as potentially to engage the operation of Article 8 ECHR. I find that that interference is in accordance with the law, on the basis that it is sought for the purposes of maintaining immigration control, and I find that it is necessary in a democratic society in the interests of the economic well-being of the country, or for the prevention of disorder or crime, it being generally accepted that the maintenance of immigration control represents a justification for such interference.
39 The final question to be asked is whether that interference is proportionate to the stated goal. The Appellant's lengthy presence in the United Kingdom has been brought about by his prolonged evasion of immigration control to between 2001, when he became appeal rights exhausted, and 2012, when he made his next application for leave to remain. The Appellant also asserts that he worked on off unlawfully during this period of time. Having found above that the Appellant does not meet the immigration rules, I have regard to the consideration (set out in s.117B(1) NIAA 2002) that the maintenance of effective immigration controls is in the public interest.
40 I too have some sympathy with the Appellant, who has been at afflicted with illness. However, those acting for him have rightly accepted that his removal to Kosovo would not be unlawful on protection or medical grounds. The importance of maintaining immigration control is to be acknowledged and given due weight. I find that the Appellant has not advanced sufficient grounds arising from his private life in the United Kingdom to demonstrate that it would be disproportionate to remove him from the United Kingdom, for the purposes of maintaining immigration control.
41 I find the proposed removal of the Appellant to Kosovo would not amount to a disproportionate breach of his rights to private and family life under article 8 ECHR.
42 I therefore dismiss the appeal.

Decision:
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
I set aside the decision.
I re-make the decision in the appeal by dismissing it under the immigration rules and on asylum and human rights grounds.

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so because the decision contains sensitive information about the Appellant's health and sexuality.

Signed: Date: 20.10.16

Deputy Upper Tribunal Judge O'Ryan