Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11216/2012

THE IMMIGRATION ACTS

Heard at Glasgow
Determination promulgated
on 19 June 2013
on 20 June 2013

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

NABIL DJAMAL LEGHMARA
Respondent

For the Appellant: Miss N Weir, of Latta & Co, Solicitors
For the Respondent: Mrs M O’Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1) This determination refers to parties as they were in the First-tier Tribunal.

2) The appellant is a citizen of Algeria, born on 29 January 1975. No anonymity order has been requested or made.

3) The appellant made a fresh application to remain on asylum and human rights grounds. The respondent rejected that by letter dated 11 December 2012, declining to accept that the appellant was entitled to protection under the Refugee Convention as a homosexual. The letter does not contain any consideration of Article 8 of the ECHR.

4) First-tier Tribunal Judge Agnew dismissed the Refugee Convention appeal under reference to HJ and HT v SSHD [2010] UKSC31. She said at paragraph 21:

… The appellant has not established … that he would act otherwise in Algeria than he has in the UK, that is, in a deliberately chosen discreet manner which would not draw attention to himself as a homosexual man … The appellant would live discreetly as a homosexual in Algeria not because he feared persecution but because that is now he chooses to live his life as a homosexual.

5) At paragraph 24 the judge found that the appellant had not established that he met the requirements of “the new Immigration Rules introduced on 9 July 2012”. She turned to Article 8, referring to Razgar v SSHD [2004] UKHL 27 and to Huang v SSHD [2007] UKHL 11. She found that the appellant, who has been in the UK for a long time, has close relationships in the UK with his brother, his sister-in-law and their children and that in his particular circumstances removal would be a disproportionate breach of Article 8.

6) The SSHD appeals to the Upper Tribunal on the following grounds:

Ground one: Making a material misdirection of law

1 The Tribunal considered the relevant Immigration Rules but made its assessment on Article 8 by reference to case law which pre-dated the relevant provisions of the Immigration Rules and was established in the absence of a clear expression of the public interest as set out by the Secretary of State and endorsed by Parliament. In doing so … it misdirected itself in law.

2 The Immigration Rules are a detailed expression of Government policy on controlling the immigration and protecting the public. The relevant provisions of the Immigration Rules take into account the public interest element of an assessment of proportionality under Article 8. They reflect the broad principles set out in Strasbourg and domestic jurisprudence. Therefore, when a Tribunal considers an individual appeal it should consider proportionality in the light of this clear expression of public policy; and the Secretary of State would expect the Courts to defer to her view, endorsed by Parliament, on how, broadly, public policy considerations are weighed against individual family and private life rights, when assessing Article 8 in any individual case. The failure to do so means that the decision the Tribunal made on Article 8 is incomplete and that it is also unsustainable as it failed to apply a key element in the assessment of the case.

Ground two: Failing to give reasons or adequate reasons for findings on a material matters

3 … At paragraph 28 the Tribunal have found that the appellant has established a private and family life in the UK, however … the Tribunal has failed to provide any reasons as to why. The Tribunal has found at paragraph 28 that the appellant has close relationships with his brother, sister-in-law and their children, but has provided no reasons as to why and on what basis. Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 (21 January 2003) states that “Because there is no presumption of family life, in my judgment 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.” … the Tribunal had not provided any reasons as to why these close relationships amount to anything more than mere emotional ties. … The appellant could continue these relationships from Algeria via modern methods of communication.

4 … the Tribunal erred in law as they have also found at paragraph 28 that the appellant has established a private life in the UK. Whilst it is noted that the appellant has resided in the UK for a lengthy time period it is not considered significant. … the appellant was 26 years of age when he came to the UK and as noted by the Tribunal returned to Algeria for 3 months … The appellant could fully readapt to life in Algeria having spent his formative years in Algeria and as he has demonstrated he can do by returning there for a lengthy period … The Tribunal has failed to consider whether the appellant could return to Algeria and placed too much weight on his length of residence here.

7) On 11 February 2013 a Designated Judge of the First-tier Tribunal granted permission to appeal to the Upper Tribunal, on the view that while ground had little or no merit, particularly following Izuazu (Article 8 – new rules) [2013] UKUT 00045 (IAC), the second ground was arguable.

8) The appellant has filed a response to the grant of permission under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The response firstly indicates that the appellant has an outstanding application for permission to appeal against the refusal of his appeal under the Refugee Convention. However, Miss Weir indicated that in light of recent country guidance the appellant no longer seeks to pursue that. The rest of the response is as follows:

…The SSHD’s first ground of appeal has no merit in light of the findings of MF (Nigeria) UKUT 00393 (IAC) and Izuazu (Article 8 – new rules) [2013] UKUT 00045 (IAC).

In any event … the appellant arguably meets the requirements of the Immigration Rules having spent more than twenty years outside of his country of origin and having no ties with that country.

There is little merit in the second ground of appeal. The SSHD argues that the judge has failed to consider the issues identified in Kugathas v SSHD [2003] EWCA Civ 31. … The judge’s conclusion that the removal of the appellant to Algeria would be disproportionate was a conclusion that was open to her on the information before her. She did not find that there was a higher than normal level of dependency between the appellant and this brother and did not specifically find that he had established a family life in the United Kingdom with his brother and his family. Rather the judge’s findings that removal would be disproportionate seem to be impliedly based on the appellant’s private life in the United Kingdom.

The argument is also made that the judge has erred in law in finding that the appellant has established a private life in the United Kingdom. It is agreed that this is the implication of the judge’s findings, although she does not specifically state this … The appellant has resided in the United Kingdom for a period of over 11 years during which time he has established a private life. He has lived outside of his country of origin for over half of his life and has no strong ties with that country. Evidence was before the judge in support of the appellant’s position that he has established a private life in the UK and insufficient reasoning has been given by the SSHD as to why this would not be the case. The findings of the judge that removal would be disproportionate were correctly made and open to her.

9) Mrs O’Brien argued the case along the lines of the grounds of appeal.

10) I indicated that the appeal would not succeed.

11) The appellant’s grounds of appeal to the First-tier Tribunal were only generic, but they did include the brief allegation that his rights under the ECHR, including Article 8 would be breached were he to be removed. Although the focus of the hearing was whether he was entitled to protection as a homosexual, the case was also put under Article 8, and the evidence emerged upon which the judge relied in reaching her conclusions in that branch of the case, as she was bound to do.

12) The first of the SSHD’s grounds is not completely without merit, but it depends upon hindsight. It goes too far in saying that the courts are to defer to the SSHD’s view that the “new Rules” are effectively decisive of Article 8. The judge did not consider the extent to which the new Rules are “designed to cover the considerations that are relevant to an Article 8 claim in a normal case”: see now MS v SSHD [2013] CSIH 52 at paragraph 30, where the Court went on to say that in most cases the new rules will ensure that the assessment is properly carried out. However, the judge would still have had to consider the appellant’s submission that he was entitled to remain under Article 8, outwith the amended Rules. In this case she can scarcely be criticised for turning directly to that exercise, when the refusal decision makes no mention of Article 8 either within or outwith the Rules, when it was accepted on both sides at the hearing that the appellant could not succeed within the Rules, and when the SSHD made no further submissions upon the correct legal approach.

13) The first ground of appeal shows no material misdirection of law.

14) On the second ground, it is plain that the judge’s decision is based on private life, including close relationships with extended family. Any test laid down in Kugathas, as the appellant’s submission points out, had no bearing. The amount of weight to place on any individual factor was very much a question for the judge. The ground amounts to disagreement with the striking of the proportionality balance in a way which was rationally open to the judge and for which legally adequate reasons have been given.

15) The SSHD’s appeal to the UT is dismissed. The determination of the First-tier Tribunal will stand.

19 June 2013
Judge of the Upper Tribunal