Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06890/2013

THE IMMIGRATION ACTS

Heard at Glasgow
Determination promulgated
on 20 November 2013
On 19 December 2013

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

PATRICIA CHUNDA
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr S MacLachlan, of Brown & Co, Solicitors
For the Respondent: Mrs M O’Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1) The appellant is a citizen of Malawi, born on 15 June 1993. She appeals against a determination by First-tier Tribunal Judge Handley, promulgated on 6 September 2013, dismissing her appeal against removal to Malawi.
2) Mr MacLachlan relied on the grounds of appeal to the Upper Tribunal. He relied also on a skeleton argument and on the written submissions in the First-tier Tribunal, which do not add substantially to the grounds. This is a précis of the main ground:
It was agreed that one of the matters in dispute was whether she established that she had no ties to Malawi, with reference to Immigration Rule 276ADE(vi). The determination errs at paragraph 39 in finding that she has ties to Malawi, because it fails to apply the meaning of “no ties” as established in Ogundimu (Article 8 – New Rules) Nigeria [2013] UKUT 60 (IAC), where it was held that “no ties” was not to be construed literally but required “a rounded assessment of all the relevant circumstances … not limited to social, cultural and family circumstances.” The judge noted that the appellant had contact with friends in Malawi on Facebook, but “relatively brief infrequent and insignificant activity … on Facebook alone” could not amount to ties according to the Ogundimu standard.
3) The Presenting Officer relied on a Rule 24 reply, which sets out paragraphs 123-125 of Ogundimu and argues (a) that absence of specific reference to the case is not material, and (b) that on the facts the appellant could not meet the requirements of paragraph 276ADE had Ogundimu been expressly applied. The reply sets out that the appellant came to the UK at the age of 12 in February 2006; she had existing ties, including social, cultural or family ties, with Malawi; she has lived there for the greater part of her life, and has been in the UK for just over 7 years; and she has “exposure of a sufficient degree to the cultural norms of Malawi”. Mrs O’Brien further submitted that paragraph 39 of the determination should not be taken out of context. The determination dealt with all aspects relevant to Article 8 and to the concept of ties in a holistic fashion. The fact that the appellant has some Malawian Facebook friends was only one aspect of her continuing ties. The appellant has difficulties in the relationships she has with her family members here. The determination explained why her return would not be disproportionate. Even if there were any error of approach, the same result would be reached, and so there was no need to set the determination aside.
4) Mr MacLachlan in reply said that although the appellant spent 12 years in Malawi, she spent 7½ years subsequently here, and has established a strong private life. She has only two family members she knows of in Malawi, one an uncle who abused her, and the other a grandfather whom she has never met. Those were not family relationships of a quality to amount to ties in terms of the Rules. The brief and insignificant relationship the appellant had with Facebook friends living in Malawi did not amount to significant ties either. The error was such that the decision should be reversed.
5) I reserved my determination.
6) It is not usually necessary for a judge to cite any case law, provided that the correct legal approach is taken. It does not appear that the judge considered that the test of “no ties” was to be interpreted literally. It might have been an error to find that friends on Facebook, and nothing else, led to the case failing at the “no ties” stage, but it misrepresents the determination to take paragraph 39 alone, and to consider the judge thought the appellant’s only ties with Malawi were through Facebook. The determination sets out her history and overall circumstances, and her ties with Malawi go further than that. It did not have to be established that she has family members with whom she can be expected to live. In her statement she said that she spoke Tumbuka as her first language and still understands it, although she does not now speak it very well. That ability would be easy to re-acquire, and English is a principal language in Malawi. Although, as Ogundimu says, each case turns on its own facts, it might have been difficult in the circumstances of this case to conclude that the appellant has no ties with Malawi.
7) I therefore prefer the submission for the respondent that the judge did not fall into any error of legal approach; and that alternatively, if there was such error, the conclusion to be reached is that the appellant has ties which are significantly more than remote and abstract, and which do involve a continued connection to life in Malawi.
8) The grounds further run that if there were error in assessing ties, that would result in reversal of the Article 8 analysis. I find no error in approach to the question of ties, and no error in respect of Article 8 either.
9) The appellant has not shown the determination of the First-tier Tribunal errs in law in any such respect as to require it to be set aside, and the determination shall stand.

20 November 2013
Judge of the Upper Tribunal