Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA106902015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th May 2016
On 15 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Ms Germaine Deroux
(anonymity direction NOT MADE)
Respondent

Representation:

For the Appellant: Mr Wilding, Home Office Presenting Officer
For the Respondent: Mr Ousseynou, Counsel, instructed by Harding Mitchell Solicitors

DECISION AND REASONS
EXTEMPORE JUDGMENT

1. The Appellant in these proceedings was the Respondent before the First-tier Tribunal and I am going to refer to the parties as the Secretary of State and claimant for my ease of reference.
2. The Secretary of State appeals with permission from the First-tier Tribunal a decision of Judge Bird promulgated on 21st March 2016 in which Judge Bird allowed, on Article 8 grounds, the claimant's appeal against a decision of the Respondent to grant her leave.
3. The grounds upon which permission are granted are in essence twofold, firstly that there was an inadequate proportionality assessment and secondly that there is inadequate reasoning.
4. The grounds set out at (a) and (b) are that the judge has failed to take into account matters adverse to the claimant, as required by Section 117B of the nationality, Immigration and Asylum Act 2002. The issue before me turned on the treatment of the public interest, and specifically the public interest as reflected by the refusal under the Immigration Rules.
5. I turn to the judge's decision.
6. On the face of the decision there does not seem to have been any dispute before the judge that the Appellant had a family and private life with which the decision interfered. Certainly that is not apparent on the face of the refusal.
7. Judge Bird at paragraph 6 of her decision noted that the grounds are within and outside of the Rules, in the context of Article 8.
8. At paragraphs 18 to 20 she sets out her findings relevant to the Rules in respect of Appendix FM and the Rules in respect of paragraph 276ADE, private life requirements.
9. At paragraph 21 the judge considers whether or not it would be right for her to move on to consider the claimant's case outside of the Rules and in particular considers the issue as to whether or not the Rules provided an adequate or full consideration of the circumstances of the Appellant.
10. In that context I am satisfied that the judge has correctly self-directed in terms of the structure of her decision-making task.
11. In terms of the public interest requirements the judge notes at paragraph 21 the public weight attaching to the Immigration Rules in the context of Section 117B when considering Article 8. It is important to note that in that context she has taken her consideration of Section 117 through the lens of the Immigration Rules, having set out in the paragraphs immediately preceding the position in respect of the Rules, to the point that I am satisfied that the reasons for rejecting the Appellant's Grounds of Appeal in respect of the Rules were clearly held in her mind at the point of moving on to consider the matter outside of the Rules.
12. Judge Bird took the public interest in the maintenance of immigration control and the point is set out at 117B(1) as being her starting point, and has accurately therefore identified in her consideration the relevance of the position under the Rules as being her starting point in making her proportionality assessment, and so brings forward the reasons for why she has found that the requirements of the Rules are not met. Those are set out at 19 and 20 of her decision and reflect difficulties with the specified evidence submitted with the application, and the absence of evidence in terms of the ability of the Sponsors in the United Kingdom to be able to afford the sort of help that the claimant would require on return, and, in terms of the claimant's private life, the issues in respect of her linguistic ability in speaking French, the language of the country of origin, and the presence of friends in the context of integration.
13. The Secretary of State argued before me that the matters that the judge has taken into account in the context of the Rules are in reality no different from those taken into account in the context of her family life and matters pertaining to the proportionality exercise. With respect to Mr Wilding, I disagree.
14. The judge has made findings of fact, which are not significantly disputed before me.
15. The judge found that the Appellant had been here since 2004, having entered lawfully, and at paragraph 2 of her determination, that following that initial position the claimant was here unlawfully. That she is now a 67 year old lady who is frail and a vulnerable adult. Vulnerability is not a matter which is considered in the context of the personal assistance required in Appendix FM, or as set out in the context of paragraph 276 ADE.
16. The judge has made findings in terms of the claimant's ethnicity, and the difficulties in her home area that have arisen out of the political conflict. Specifically that the claimant has no relatives in her country of origin, that her home had been destroyed or burnt down, and that her village is now occupied by the rebels who, the judge had found, had destroyed it and who have a history of antagonism and hostility to those of the claimant's ethnicity.
17. The judge found that the claimant was dependent on her son and daughter in the United Kingdom, and took into account medical evidence including difficulties with the claimant's memory which had led her to previously adjourn the proceedings, and it is clear that when at paragraph 25 of her decision the judge is refers to the family circumstances of the claimant that is the background that she is clearly referring to.
18. In those circumstances it is not at all surprising that the judge found that the private life requirements at paragraph 276ADE and the Rules in respect of Appendix FM did not provide an adequate consideration of this claimant's family life and that there were exceptional circumstances which required her to consider the matter in the context of Article 8 ECHR outside the Rules.
19. In short, I am satisfied that the judge has adopted the correct structure to her decision-making task and has given due and proper account to the public interest question as required by Section 117B. Further that the conclusion is sustainable on the evidence that was before the judge and that the overall decision is not perverse.
20. In respect of the adequate reasoning ground I am satisfied that for the reasons I have already given the ground is not made out.
21. I turn briefly to deal with the suggestion that there is an irrelevant factor in the context of the position of accommodation and in that regard I am satisfied again that the judgment reveals no error, the ground drawn by the Secretary of State being a mischaracterisation of the finding in respect of the Appellant's position in her home village on return.
Notice of Decision

The appeal is dismissed.

The Judge's decision allowing the appeal reveals no error of law and stands.

Signed E Davidge Date 13 June 2016

Deputy Upper Tribunal Judge Davidge