Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07131/2015

THE IMMIGRATION ACTS

Heard at: IAC Birmingham
Decision Promulgated
On: 31 January 2017
On: 02 February 2017

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

Jane Makombe
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Acharya of Acharyas Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

1. Following a grant of permission to appeal against the decision of the First-tier Tribunal allowing the appellant's appeal against the respondent's decision refusing to vary her leave to remain, it was found, at an error of law hearing on 18 March 2016, that the First-tier Tribunal had made errors of law in its decision. The decision was accordingly set aside and was to be re-made.

2. The appellant, a national of Zimbabwe born on 11 November 1974, arrived in the UK on 27 March 1998 and was granted leave to enter for six months as a visitor. She was subsequently granted further periods of leave to remain as a student, until 27 December 2002. On 30 December 2002 she applied for indefinite leave to remain on compassionate grounds outside the immigration rules, but her application was refused on 1 September 2003. She then made an application for leave to remain on human rights grounds on 17 December 2003. She did not receive a decision from the respondent. On 20 May 2010 the appellant made an asylum claim which was refused on 5 July 2010. Her appeal against that decision was heard in the First-tier Tribunal on 18 August 2010 and was dismissed on asylum, humanitarian and Articles 2 and 3 human rights grounds, but was allowed on Article 8 grounds. As a result, the appellant was granted discretionary leave to remain by the respondent on 23 May 2011, valid until 22 May 2014.

3. On 7 May 2014 the appellant applied for further leave, but her application was refused on 9 April 2015. She appealed against that decision and her appeal was heard in the First-tier Tribunal on 11 August 2015 and allowed in a decision promulgated on 25 August 2015. The Secretary of State applied for, and was granted permission to challenge that decision in the Upper Tribunal, further to which the decision was set aside.

The Appellant's Case

4. The appellant's asylum claim, as put to the First-tier Tribunal on 18 August 2010, was that she feared returning to Zimbabwe as a result of being unable to demonstrate loyalty to the regime. However she did not claim to have, or to have had, any political involvement and the judge found that she would be at no risk on return. It was on the basis of the appellant's private and family life that the appeal was allowed. The appellant's evidence before the Tribunal was that she had developed a rare form of mouth ulcer at the age of 12 and had had to drop out of school and subsequently went to live with her aunt and uncle and cousins in Harare, where she received medical treatment. Whilst living with her aunt she gave birth to a boy, in 1992. In 1998 she travelled to the UK at the invitation of another cousin, Lovemore, and his wife who was pregnant, to help care for the baby when born. She started studying in the UK and remained here, although she returned to Zimbabwe in 2001 to see her son. Her father died in 1999 and her brother in 2002. Her aunt and uncle also died in 2005 and 2008, her mother in 2008 and her son in 2009. She therefore had no-one to return to in Zimbabwe and nowhere to live as there was no family property remaining there. At the time of the hearing she was living with her cousin Charles and his wife and children and was also close to another cousin Walter, who at the time was in Kenya with the British Army. It was Charles and his family with whom she had lived and grown up in Harare. Her cousins in the UK were all British citizens.

5. The judge accepted the appellant's evidence and accepted that she had no family or property to return to and that it would be difficult for her to find employment in Zimbabwe. He accepted that the appellant's dependence upon her cousins, who regarded her as a sister, went beyond the normal emotional ties existing between family members and he accepted that she had established a family and private life in the UK. The judge placed considerable weight upon the respondent's failure to make a decision on the appellant's human rights claim submitted on 17 December 2003 and considered that that delay reduced the weight to be given to the requirements of firm immigration control in assessing proportionality. He concluded that, although finely balanced, the appellant's removal would be disproportionate and in breach of her Article 8 human rights.

6. In refusing the appellant's application for further discretionary leave, in the decision of 9 April 2015, the respondent considered that the appellant would not be at risk on return to Zimbabwe and did not qualify for asylum or humanitarian protection. With regard to Article 8, the respondent considered that the appellant had failed to demonstrate any dependency on her cousins beyond normal emotional ties and did not accept that she had established a family life in the UK. It was concluded that she could not meet the requirements in Appendix FM, that there were no very significant obstacles to her integration to Zimbabwe for the purposes of paragraph 276ADE(vi) and that there were no exceptional circumstances justifying a grant of leave outside the immigration rules.

7. The appellant's appeal against that decision was heard on 11 August 2015 by First-tier Tribunal Judge Asjad, at which time the appellant was no longer living with her cousin Charles but was living alone in a flat in Leicester, although still receiving support from her family members. Judge Asjad preserved the findings of fact made by the previous First-tier Tribunal. She noted that the appellant's asylum claim was now being made on the basis that she was a member of a particular social group, namely a lone female living alone in Zimbabwe, and found her evidence in that regard to be misleading and her claim to be contrived. She did not accept that the appellant was at risk on return to Zimbabwe and dismissed the appeal on that basis. As regards Article 8, the judge considered that the delay by the Home Office in considering the appellant's human rights claim was still relevant in so far as the appellant's private life had become more rooted. She noted that the appellant worked for the NHS as a health care worker and that she had moved away and established new links and friendships in Leicester and integrated herself into the British way of life. The judge found that the requirements in Appendix FM were not met and she considered further that, whilst the appellant would face some difficulty in re-integration in Zimbabwe, she would not face very significant obstacles for the purposes of paragraph 276ADE. The judge proceeded to consider Article 8 outside the immigration rules, finding that she had established a family and private life in the UK and that, having regard to the factors in section 117B of the Nationality, Immigration and Asylum Act 2002, the interference with her family and private life would be disproportionate and in breach of Article 8. She allowed the appeal on that basis.

8. Permission to appeal was sought by the respondent on the grounds that the judge had made a material misdirection in relation to section 117B and that her findings were contrary to the approach taken in AM (S 117B) Malawi [2015] UKUT 260 and Forman [2015] UKUT 00412 and downplayed the public interest in immigration control.

9. At a hearing on 18 March 2016, Deputy Upper Tribunal Judge O'Ryan found an error of law in the judge's decision and set it aside. He then heard evidence and submissions with a view to re-making the decision. Unfortunately he was not able to issue a written decision with reasons for finding an error of law and he gave no indication of the outcome of the re-making of the decision. In the absence of an objection to the proposal, in the decision and directions subsequently issued by the Upper Tribunal on 24 November 2016, that that decision was to be treated as a decision confirming the error of law decision given orally at the hearing, the parties have been treated as having given consent to the Upper Tribunal not providing written reasons for the error of law decision. The appeal was then listed for a resumed hearing to re-make the decision.

10. At the hearing before me Mr Acharya accepted that the hearing was a re-making of the decision in the appeal and I therefore heard oral evidence and submissions from the parties.

11. The appellant confirmed in her oral evidence that she had lived with her aunt and uncle and cousins in Harare before coming to the UK in March 1998 and had since that time visited Zimbabwe only once in 2001 for two weeks. She said that she was very close to her cousins in the UK but did not live with them, having moved to Leicester in October 2011 when she found a job there as a healthcare worker, after being granted discretionary leave in May 2011. They visited each other regularly and kept in contact by telephone and her cousins provided her with financial and emotional support when needed. She had no family in Zimbabwe and no property there. She had lived in Leicester with her cousin Lovemore and his wife when she first came to the UK and she studied there, and then moved in with her cousin Charles in Crawley from around 2004 when she stopped studying and was not permitted to work. Once she was granted discretionary leave and was able to work she could not find a job in Crawley and so moved back to Leicester where she maintained contacts from previously. Her cousins Charles and Walter had their own business, in pest control. They still helped her out financially when she needed money but would not be able to send her money if she was in Zimbabwe as it was very difficult to send money there. She had little contact with Lovemore. She would not be able to maintain contact with her cousins from Zimbabwe as there was no electricity there and therefore no internet and no Skype. She would have no family support in Zimbabwe, either financial or emotional.

12. The appellant's cousin, Fortune Charles Murahwa, then gave oral evidence before me, confirming his close relationship with the appellant whom he regarded as a sister. He lived with his wife and three adult children. He and his wife had supported the appellant emotionally and financially. He said that it would be difficult to support her financially if she went back to Zimbabwe as she would need constant support and assistance with paying rent which would be expensive for him. He agreed, however, that he would not leave her destitute.

13. Mr Mills submitted that the judge's findings on paragraph 276ADE were to be preserved and it would be difficult to conclude that removal was disproportionate if there were no very significant obstacles to integration. Mr Mills did not accept that there was an established family life for the purposes of Article 8 as there was no longer any dependency above the normal emotional ties between adult siblings. With regard to private life he relied on the recent decision in Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test) [2017] UKUT 13 and submitted that there was nothing compelling about the appellant's circumstances. The decision was proportionate and the appeal should be dismissed.

14. Mr Acharya, relying on the case of Ghising (family life - adults - Gurkha policy) [2012] UKUT 00160, submitted that there was an established family life despite the appellant having moved away from her cousins. He submitted that removal would be disproportionate, considering the length of time the appellant had been in the UK, which was just less than 20 years, the family support she had here, the loss of her family members in Zimbabwe and the lack of support she had there. He asked that the appeal be allowed.

Consideration and findings

15. For the sake of completeness, I would make it clear that Judge Asjad's decision plainly contained material errors of law in that her consideration of the factors in section 117B of the 2002 Act, such as the appellant's ability in English, financial independence and asserted compliance with immigration laws, as being weighty factors in the proportionality assessment, was plainly inconsistent with the approach in AM and Forman which made it clear that they were simply neutral factors. As such, her decision was legally unsustainable and could not stand.

16. However, as Mr Mills submitted, the judge's findings on paragraph 276ADE(1)(vi) remain intact, there being no challenge to that part of the decision, and the finding that there were no very significant obstacles to the appellant's integration into Zimbabwe has been properly preserved. The re-making of the decision in the appellant's appeal is therefore in respect to Article 8 outside the immigration rules and, as confirmed in Treebhawon, the test to be applied is that of "compelling circumstances". I agree with Mr Mills that the appellant has a difficult task in demonstrating that her circumstances are compelling, when it is otherwise the case that there are no very significant obstacles to her integration into Zimbabwe.

17. I do not agree with Mr Acharya's submission that the appellant's circumstances can be compared with those in Ghising in demonstrating that family life exists between adult family members, but consider that any family life that was found by the First-tier Tribunal in the appellant's previous appeal to have existed no longer exists. The appellant has, since that time, moved out of her cousin's house and has been working and living independently for the past five to six years. Indeed that was an unchallenged finding made by Judge Asjad at [19]. Whilst it may be the case that she receives some additional financial support and emotional support at times of need from her cousin, that is far from establishing a dependency over and above the normal emotional ties between adult family members. Accordingly the appellant's claim has to be considered in terms of private life.

18. As stated above, the factors relied on by Judge Asjad at [27], namely the appellant's ability in English, financial independence and asserted compliance with immigration laws, are neutral factors. In any event the judge was clearly wrong when considering the appellant's immigration status at [27] as she has not always had valid leave in the UK and, furthermore, any leave she had was precarious. Accordingly section 117B(5) is relevant in that the appellant's private life has therefore to be accorded little weight as against the public interest in her removal. The positive factors in the appellant's favour are her family ties in the UK and her lack of family ties in Zimbabwe, but she is an adult who has acquired skills and qualifications in the UK which can be utilised in Zimbabwe to find employment and re-establish herself and there is no reason why her cousins in the UK cannot assist her, at least initially, until she has found employment and an independent source of income. I do not accept as credible the appellant's claim that money cannot be transferred to her in Zimbabwe when there is no evidence to suggest that such facilities do not exist and indeed they clearly do exist. Neither do I accept as credible her claim that there is no electricity to facilitate internet contact with her cousins. The most compelling part of the appellant's claim is her length of residence in the UK, but that is not sufficient to meet the requirements in paragraph 276ADE(1) and, in any event, has been mostly without leave. The delay by the respondent in considering her human rights claim was a weighty factor in the First-tier Tribunal's decision allowing the appellant's appeal in August 2010 but is no longer a relevant or weighty factor.

19. In the circumstances, whilst I accept that a return to Zimbabwe would not be easy for the appellant, there is nothing particularly compelling about her circumstances so as to outweigh the public interest in immigration control and to justify a grant of leave outside the immigration rules on wider Article 8 grounds. For all of these reasons it is clear that the appellant's removal to Zimbabwe would not be disproportionate and would not breach her Article 8 human rights. The appeal is therefore dismissed.

DECISION

20. The original Tribunal was found to have made an error of law and the decision has been set aside. I re-make the decision by dismissing the appellant's appeal on all grounds.

Anonymity
The First-tier Tribunal made an anonymity order. I see no reason to continue that order and therefore discharge the order.

Signed Date

Upper Tribunal Judge Kebede