Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07566/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 3rd November 2016
On 11th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

Rosemary Sakhula
(ANONYMITY direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss J Campbell of Counsel instructed by Acharyas Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction and Background
1. The Appellant appealed against a decision of Judge D Wilson of the First-tier Tribunal (the FtT) promulgated on 15th February 2016.
2. The Appellant is a female citizen of Malawi born 29th August 1953 who on 7th July 2014 applied for further leave to remain in the United Kingdom. The Appellant relied upon Articles 3 and 8 of the 1950 European Convention on Human Rights (the 1950 Convention).
3. The Appellant claimed that she would be at risk as the family member of a refugee, as her daughter, born 6th June 1992, had been granted asylum in August 2011 on the basis of her sexuality.
4. The application was refused on 21st April 2015. The Respondent did not accept that the Appellant could satisfy the requirements of Appendix FM of the Immigration Rules in relation to family life.
5. In relation to private life the Respondent considered paragraph 276ADE(1) noting that the Appellant first entered the United Kingdom as a visitor in 2002, and therefore had not resided in this country for twenty years as required by paragraph 276ADE(1)(iii).
6. The Respondent did not accept that there would be any very significant obstacles to the Appellant's reintegration into Malawi, and therefore she could not satisfy paragraph 276ADE(1)(vi).
7. The Respondent did not consider that there were any exceptional circumstances which would justify granting leave to remain pursuant to Article 8 of the 1950 Convention, outside the Immigration Rules. It was noted that the Appellant had previously been granted discretionary leave to remain based upon her private and family life, and this leave was granted on 3rd August 2011, valid until 2nd August 2014. The Respondent contended that the Appellant had failed to provide satisfactory evidence to show that the circumstances of the previous grant of leave remained the same, and therefore further leave was not granted. In addition, the Respondent did not accept that the Appellant's adult daughter was dependent upon her.
8. The Respondent noted that the Appellant had arrived in the United Kingdom in 2002 as a visitor, and was first granted leave to remain as a student on 4th March 2003. Her leave as a student was then extended on a number of occasions until 2011 but when the Appellant's leave expired on 22nd March 2011, she thereafter remained in the United Kingdom illegally until encountered on 5th July 2011 when she was served with removal directions, but these directions were cancelled on 16th July 2011 when the Appellant claimed asylum. Her asylum claim was refused on 3rd August 2011, but she was granted three years' discretionary leave to remain.
9. The Appellant's appeal was heard by the FtT on 28th January 2016 and dismissed. The FtT found that the Appellant would not be at risk if returned to Malawi, and did not find that the Appellant had established a family life with her adult daughter. The FtT found that there were no very significant obstacles to the Appellant's integration into Malawi, and took into account section 117B of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) in finding that little weight should be given to the private life established by the Appellant in the United Kingdom, because that private life had been established when her immigration status was precarious.
10. The Appellant applied for permission to appeal to the Upper Tribunal and permission to appeal was granted by Judge Astle of the FtT in the following terms;
"2. The grounds argue that the judge erred in not considering adequately whether the Appellant and her daughter enjoyed family life together and the impact of the Appellant's removal on her daughter. He failed to consider the Home Office 'case notes' adequately. He failed to consider the full reasons for the previous grant of discretionary leave to remain and the continuing level of support given by the Appellant to her daughter. Lastly it is argued that the judge erred in failing to consider fully the reason why the Appellant was given discretionary leave to remain.
3. It is arguable that the judge adopted too narrow an approach in his consideration of the existence of family life on the particular facts of this case which include the daughter's circumstances, her refugee status and the bond that can exist following such a history. Having found that family life did not exist it follows that he did not consider the effect of the decision on the Appellant's daughter. The grounds are arguable and permission is granted."
Error of Law
11. At a hearing before me on 4th August 2016 I heard submissions from both parties regarding error of law. On behalf of the Appellant reliance was placed upon the grounds contained within the application for permission. I was referred to the Respondent's reasons for granting the Appellant discretionary leave to remain dated 2nd August 2011, in which it was accepted that family life existed between the Appellant and her daughter and that there were clear elements of dependency, and their circumstances could be described as inextricably linked.
12. Oral submissions were made on behalf of the Respondent and reliance was placed upon a rule 24 response dated 14th March 2016 in which it was contended that the FtT directed itself appropriately and did not err in finding there was no family life between the Appellant and her daughter.
13. I set out below my conclusions and reasons for finding an error of law and setting aside the decision of the FtT;
"12. The circumstances before the FtT were that the Appellant's daughter, born 6th June 1992, was 23 years of age and had been granted refugee status based upon membership of a particular social group, because of her sexuality. The Appellant has been resident in the United Kingdom with limited leave, from 2002. She overstayed her leave in 2011, and made an asylum claim which was refused.
13. The Appellant and her daughter had resided together in this country since 2005, and on 2nd August 2011 the Appellant was granted discretionary leave to remain for a period of three years, based upon her family life with her daughter, and her private life.
14. I reserved my decision following submissions made at the hearing, as I wanted to consider further whether the grounds submitted on behalf of the Appellant amounted simply to a disagreement with findings made by the FtT, or whether they in fact disclosed a material error of law.
15. Having reflected, I conclude that the grounds do disclose a material error of law in relation to Article 8 of the 1950 Convention. There was no challenge to the findings made by the FtT in relation to Article 3, and those findings are preserved.
16. In my view the FtT failed to consider fully the reasons given by the Respondent for granting discretionary leave on 2nd August 2011. The FtT found at paragraph 56 that in the main, discretionary leave was granted because the Appellant's daughter was still at school. This is not an accurate conclusion. When discretionary leave was granted, the Appellant's daughter was 19 years of age and an adult. She had been granted refugee status and the Respondent unequivocally found that family life existed between the Appellant and her daughter, notwithstanding that the daughter had attained her majority. The Respondent found at page 2 of the grant of discretionary leave;
"There are clear elements of dependency and their circumstances could be described as inextricably linked. Beoku-Betts applies and the mother's removal would also breach the daughter's Article 8 rights."
17. The Respondent noted that the Appellant and her daughter lived together and had done so since 2005 and had no other relatives in the UK. The daughter could not return to Malawi because of her fear of persecution.
18. I do not find that the FtT has adequately explained why it is that family life no longer exists between the Appellant and her daughter. Both gave evidence as to their dependency upon each other, and I do not find that adequate reasons have been given for disregarding that evidence. Although the daughter is a student at university, the evidence indicated that her family home remained with her mother, with whom she resided at weekends and holidays.
19. I therefore conclude that the FtT erred in considering whether family life existed between the Appellant and her daughter, and failed to take into consideration the effect of the Appellant's removal upon her daughter.
20. I am satisfied that these errors are material, and may have affected the FtT conclusions in relation to paragraph 276ADE(1)(vi).
21. Therefore the decision of the FtT in relation to Article 8 is set aside and the decision needs to be re-made."
Re-making the Decision - Upper Tribunal Hearing 3rd November 2016
14. At the commencement of the hearing I ascertained that I had all documentation upon which the parties intended to rely. I had on file the documentation that had been before the FtT which comprised the Home Office bundle with Annexes A-F, two bundles submitted on behalf of the Appellant, one containing 46 pages, and the other containing 27 pages, and the Appellant's witness statement dated 28th January 2016. I had also been provided with a copy of Ghising [2012] UKUT 00160 (IAC).
15. Both representatives indicated that no further documents were to be submitted. Miss Campbell advised that no further evidence would be called, and the Appellant relied upon the evidence that she and her daughter had given to the FtT.
16. Both representatives indicated that they were ready to proceed and there was no application for an adjournment.
The Appellant's Submissions
17. In summary Miss Campbell submitted that family life between the Appellant and her daughter existed, which engaged Article 8. I was asked to accept that there is a special relationship because of the daughter's sexuality and the fact that she has been granted refugee status. The couple have lived together since 2005, and still live together, notwithstanding that the daughter is away from the family home studying, as she returns at weekends and during university holidays. I was asked to accept that the Appellant has provided her daughter with some financial support, although it was accepted that the daughter also has other income.
18. I was referred to paragraphs 54-61 of Ghising and was asked to note that the Appellant's daughter is still a student, and has one more year before her current studies end.
19. I was referred to the Respondent's letter dated 2nd August 2011 which gives reasons for granting the Appellant discretionary leave to remain between August 2011 and August 2014. It was accepted at page 2 of that letter that it was unlikely "given the accepted circumstances" that the Appellant would be able to re-establish a family life in Malawi. Miss Campbell submitted that the length of time that had elapsed since August 2011 meant that the relationship between the Appellant and her daughter had grown even stronger and I was asked to allow the appeal on the basis of the Appellant's family and private life.
The Respondent's Submissions
20. Mr Bates relied upon the Respondent's reasons for refusal dated 21st April 2015.
21. I was asked to note the passage of time since discretionary leave was granted on 2nd August 2011, and Mr Bates commented that the law had changed, and the decision made on 2nd August 2011 would probably not be made now.
22. Mr Bates submitted that there was more dependency in the relationship between the Appellant and her daughter in 2011 than presently existed. I was asked to note that the daughter was living away from home at university and the evidence indicated that she was undertaking some part-time employment. I was asked to note the lack of any expert evidence to prove that dependency existed over and above what was normal in a relationship between a mother and adult daughter. I was asked to conclude that the Appellant had not proved that family life existed between herself and her daughter, that would engage Article 8 of the 1950 Convention.
23. In relation to private life, I was asked to take into account section 117B of the 2002 Act. Mr Bates pointed out that the Appellant had had employment in the United Kingdom and if returned to Malawi was not incapable of seeking employment there. If the Appellant left the United Kingdom voluntarily she would be eligible to claim financial assistance. In relation to private life, there were no very significant obstacles to prevent the Appellant's reintegration into Malawi, and she could maintain contact with her daughter, although it was accepted that the daughter could not be expected to visit Malawi as she had a well-founded fear of persecution in that country.
24. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
25. I have taken into account all the evidence placed before me, although I will not refer, in my conclusions, to all the evidence that I have considered. I have taken into account the submissions made by both representatives.
26. This appeal comes about because the Appellant's human rights claim was refused. The Appellant therefore has a right of appeal against that decision pursuant to section 82(1)(b) of the 2002 Act.
27. The ground of appeal can be found at section 84(2) and is set out below;
'(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.'
28. There has been no challenge to the FtT findings that the Appellant would not be at risk of treatment contrary to Article 3 of the 1950 Convention, and the FtT findings in relation to Article 3 are preserved. The Appellant would not be at risk of ill-treatment in Malawi.
29. The Appellant's claim is that the Respondent's decision breaches her right to respect for private and family life under Article 8, and as a result would be unlawful under section 6 of the Human Rights Act 1998. I set out below Article 8;
'Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'
30. I consider the Appellant's private and family life on the following basis.
31. The Appellant arrived in the United Kingdom as a visitor in 2002. She was subsequently granted leave to remain as a student and was granted further leave to remain on a number of occasions until 22nd March 2011. The Appellant returned to Malawi on 31st March 2005 to visit her sister who was ill, and returned to the United Kingdom in April 2005. The Appellant's daughter came to the United Kingdom in 2005.
32. The Appellant's daughter is now 24 years of age. She was granted asylum on the basis of her sexuality in 2011.
33. The Appellant remained in the United Kingdom without leave when her leave expired on 22nd March 2011. She was encountered by immigration authorities on 5th July 2011 and served with removal directions. On 16th July 2011 she claimed asylum, and that application was refused on 3rd August 2011 but she was granted discretionary leave to remain until 2nd August 2014.
34. Before that leave expired, the Appellant on 7th July 2014 applied for further leave to remain which application was refused on 21st April 2015 and which caused this appeal to be lodged.
35. I accept that the Appellant and her daughter have lived together in this country since 2005. I accept that the Appellant is active in her local church and that she has worked as a carer. The Appellant's daughter was dependent upon her financially but is no longer totally financially dependent upon her. The Appellant's daughter is studying in Stoke-on-Trent. I accept that the Appellant and her daughter have no contact with any relatives in Malawi and the Appellant has no accommodation in that country.
36. I accept the evidence contained within the Appellant's daughter's undated letter at pages 10 and 11 of the Appellant's bundle comprising 46 pages in that she has a very close bond with the Appellant, she works hard because the Appellant motivates her to do so, and she believes that if "denied of her presence, family and moral support will almost be disastrous for my welfare and well-being. Not to have her around will be hard for me also emotionally".
37. The Appellant's daughter explained in her letter that she and the Appellant "both play a huge part in each other's lives".
38. It is accepted by the Appellant that she cannot satisfy Appendix FM of the Immigration Rules, which sets out the requirements to be satisfied in order to be granted leave to remain on the basis of family life.
39. The Court of Appeal at paragraph 33 of SS (Congo) [2015] EWCA Civ 387 indicated that the general position is that compelling circumstances would need to be identified to support a claim for a grant of leave to remain outside the new rules in Appendix FM.
40. In considering Article 8 of the 1950 Convention outside the Immigration Rules I have adopted the step-by-step approach advocated in Razgar [2004] UKHL 27 which involves answering the following questions;
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?
41. I accept that the decision in Beoku-Betts [2008] UKHL 39 means that if Article 8 is engaged, I must consider the family life of the Appellant's daughter as well as the Appellant.
42. I find that the Appellant has established private life in this country since her arrival in 2002. I must decide whether she has also established family life with her adult daughter.
43. I find that it is clear that when the daughter was a minor, there was family life which would engage Article 8, which existed between the Appellant and her daughter. The question is whether family life still exists, notwithstanding that the daughter has attained her majority.
44. The Court of Appeal decided in Kugathas [2003] EWCA Civ 31, at paragraph 25, that a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties.
45. The Upper Tribunal in Ghising at paragraph 56 accepted that the judgment in Kugathas had been interpreted too restrictively in the past and ought to be read in the light of subsequent decisions of the domestic and Strasbourg Courts. This aspect of the decision in Ghising was subsequently approved by the Court of Appeal. At paragraph 62 of Ghising the Upper Tribunal stated that there should be no blanket rule with regard to adult children, and each case should be analysed on its own facts, to decide whether or not family life exists, within the meaning of Article 8(1). The Court of Appeal in Gurung and Others [2013] EWCA Civ 8 stated at paragraph 45 that "the question whether an individual enjoys family life is one of fact and depends on a careful consideration of all the relevant facts of the particular case". At paragraph 50 the Court of Appeal gave the following guidance;
"The critical issue was whether there was sufficient dependence, and in particular sufficient emotional dependence, by the Appellants on their parents to justify the conclusion that they enjoyed family life. That was a question of fact for the FtT to determine. In our view, the FtT was entitled to conclude that, although the usual emotional bonds between parents and their children were present, the requisite degree of emotional dependence was absent."
46. The above indicates that there must therefore be something more than the usual emotional bonds between parents and children, and there must be sufficient emotional dependence.
47. In this case I find that there is a particularly close bond between the Appellant and her daughter. I accept their evidence on this point. The couple have lived together since 2005 in this country. I find that there has been financial support provided by the Appellant to her daughter in the past, although the present situation is that there is limited financial support. This is not conclusive one way or the other.
48. I take into account that the Appellant's daughter is now 24 years of age and a student at university. She lives in Stoke-on-Trent where she studies during term time. I accept that she returns to the Appellant's home in Liverpool on some weekends, and during university holidays. I find that the Appellant and her daughter still regard themselves as living in the same family unit as they have done since 2005.
49. I find it relevant to take into account the conclusions reached by the Respondent when discretionary leave was granted to the Appellant on 2nd August 2011. The Respondent took into account that the Appellant's daughter had been granted asylum because of her sexuality, whereas the Appellant's claim had been refused. The Respondent considered the Appellant's Article 8 claim in the light of Razgar. It was accepted that the Appellant had established a private life in the United Kingdom and established a family life with her daughter. At the date of the Respondent's decision the daughter was an adult, being 19 years of age.
50. It was accepted that the Appellant would not be able to re-establish family life in Malawi and that the Appellant and her daughter had lived together as a family unit, and the daughter could not return to Malawi because of her refugee status. The Respondent accepted that there "are clear elements of dependency and their circumstances could be described as inextricably linked". The Respondent went on to make reference to Beoku-Betts commenting that the Appellant's removal would also breach the daughter's Article 8 rights.
51. It was accepted that the Appellant's family unit consisted only of herself and her daughter. It was accepted that the Appellant had no contact with any family members in Malawi. It was therefore decided that if the Appellant was removed from the United Kingdom, this would breach Article 8 in relation to her family and private life, and therefore discretionary leave for a period of three years was granted.
52. I accept that just over five years has now passed since discretionary leave was granted on the basis described above. Mr Bates contends that there is no longer any dependency, whereas Miss Campbell submits that the passage of time has made the relationship stronger. The Respondent in the refusal decision indicated that the Appellant had failed to provide satisfactory evidence to show that the circumstances of her previous grant of leave remained the same, and therefore she was not granted further leave.
53. Having considered all the circumstances, I find that while it has not been proved that there is an even stronger bond now than existed in 2011, between the Appellant and her daughter, it is not correct to find that family life no longer exists.
54. The Appellant's daughter is not leading an independent life. She does not have full-time employment. I am satisfied that she regards the Appellant's home as her home. She has not moved away permanently. She lives away from her family home in term time so that she can study. She has not yet completed her studies.
55. I find that there is considerable emotional dependency, in that the Appellant depends upon her daughter, and vice versa. They support each other. I am satisfied that they do not have other family members with whom they have any contact. The fact that the Appellant's daughter has been granted refugee status because of her sexuality has alienated some family members, and has drawn the Appellant and her daughter closer together and more dependent on each other.
56. I find that the circumstances at the present time are very similar to the circumstances which existed in 2011 when the Respondent accepted that family life existed, and I find, notwithstanding that the Appellant's daughter is now 24 years of age, that she and the Appellant have a family life that engages Article 8.
57. Therefore, going back to the Razgar questions, I find that the Appellant's proposed removal would be an interference with her right to respect for her private and her family life, with consequences of such gravity as to engage Article 8.
58. I find that the proposed interference is in accordance with the law, in that the Respondent is entitled, and needs to maintain effective immigration control, and is entitled to refuse an application for leave to remain.
59. I then consider the fourth and fifth questions together, and this involves considering the public interest in maintaining effective immigration control, and the proportionality of the Respondent's decision.
60. I set out below section 117A of the 2002 Act;
'117A(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).'
61. Subsection (1) of section 117B confirms that the maintenance of effective immigration control is in the public interest.
62. Subsection (2) confirms that it is in the public interest that a person seeking leave to remain can speak English, and subsection (3) confirms that it is in the public interest that such a person is financially independent.
63. I find that the Appellant can speak English and has been financially independent in that she has supported herself by permitted employment. However I also take into account the guidance in AM Malawi [2015] UKUT 0260 (IAC) which confirms that an Appellant can obtain no positive right to a grant of leave to remain from either section 117B(2) or (3) whatever the degree of fluency in English or the strength of financial resources. Therefore if an Appellant is fluent in English and financially independent, that can be no higher than a neutral factor.
64. Subsection (4) confirms that little weight should be given to a private life established by a person when in the United Kingdom unlawfully, and subsection (5) confirms that little weight should be given to a private life established by a person when that person's immigration status is precarious.
65. Having limited leave to remain means having a precarious immigration status. The Appellant has only ever had limited leave to remain, apart from a brief period when she was in this country unlawfully, and therefore little weight must be attached to the private life that she has established.
66. I therefore attach significant weight to the fact that the Appellant cannot satisfy the Immigration Rules in relation to her family life, and the maintenance of effective immigration control is in the public interest.
67. I also take into account that compelling circumstances are required to justify a grant of leave to remain pursuant to Article 8 outside the Immigration Rules.
68. Notwithstanding the weight to be attached to the failure to satisfy the Immigration Rules, I find that there are compelling circumstances in this appeal. Those circumstances are a particularly strong family life established between the Appellant and her daughter, and the significant factor is the grant of refugee status to the daughter because of her sexuality. There is a very high level of dependence by the couple on each other. They do not have any other supportive family members. The Appellant would have no family support if she returned to Malawi, no accommodation, and there would be an irrevocable separation of the Appellant and her daughter, as the daughter could not travel to Malawi because of her well-founded fear of persecution, which is accepted by the Respondent.
69. The Respondent in the refusal dated 21st April 2015 indicated that the Appellant had not provided satisfactory evidence to show that the circumstances of the previous grant of leave remained the same. I find that the Appellant has provided such evidence, and that the circumstances do remain very much the same. It is correct, as pointed out by Mr Bates, that no expert evidence has been submitted to confirm the level of emotional dependence, but I am satisfied having considered all the evidence, that such emotional dependence does exist in this case, that the circumstances of the Appellant and her daughter are unusual, and compelling, and therefore I conclude that refusing her leave to remain in the United Kingdom would be a disproportionate interference with the family life established with her daughter, and therefore would breach Article 8 of the 1950 Convention. On that basis the appeal is allowed.
Notice of Decision

The decision of the First-tier Tribunal contained an error of law and was set aside.

I substitute a fresh decision.

The Appellant's appeal is allowed on human rights grounds in relation to Article 8 of the 1950 Convention.

Anonymity

No anonymity direction was made by the FtT. There has been no request for anonymity made to the Upper Tribunal and I see no need to make an anonymity order.

Signed Date 7th November 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal I have considered whether to make a fee award. I do not find that it is appropriate. Evidence was presented to the Tribunal which was not before the original decision maker and therefore there is no fee award.

Signed Date 7th November 2016

Deputy Upper Tribunal Judge M A Hall