Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12205/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 October 2016
On 19 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MANUELL

Between

S M R
(ANONYMITY Direction MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr J Waithe, Counsel (instructed by Solomon Shepherd)
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

1. The Appellant appealed with permission granted by Upper Tribunal Judge Finch on 15 September 2016 against the decision of First-tier Tribunal Judge Eban made in a decision and reasons promulgated on 17 June 2016 dismissing the Appellant's asylum, humanitarian protection and human rights appeals.

2. The Appellant is a national of Rwanda, born on 20 February 1980. At the hearing through her counsel she withdrew her asylum claim, and elected to proceed with her Articles 3 and 8 ECHR appeals only. These were based respectively on her ethnicity and imputed political opinion, and her family and private life.

3. The judge found that there was no Article 3 ECHR risk on return. The Appellant met no part of Appendix FM, whether as partner or parent, nor paragraph 276ADE of the Immigration Rules. Her Article 8 ECHR claim failed on proportionality grounds. The judge gave extensive consideration to the best interests of the Appellant's daughter in that process.

4. When granting permission to appeal, Upper Tribunal Judge Finch considered that it was arguable that Judge Eban had erred in allowing the asylum appeal to be withdrawn in that the Appellant claimed that her instructions had not been given. The Appellant had also sought to challenge the Article 3 and 8 ECHR findings which had been raised in the onwards grounds of appeal. Permission to appeal was given in general terms.

7. The Respondent filed notice under rule 24 dated 6 October 2016 indicating that the appeal was opposed as it had no substance. Standard directions were made by the tribunal and the appeal was listed for adjudication of whether or not there was a material error of law.

Submissions

8. Mr Waithe for the Appellant relied on the grounds of appeal and on the grant of permission to appeal by the Upper Tribunal. He accepted, however, that he was in difficulties as to the withdrawal of the asylum claim authorisation issue, as there were no supporting witness statements. As to the Article 8 ECHR claim, the judge had given insufficient consideration to the various problems which the Appellant would face if returned to Rwanda, given her unhappy experiences there in the past. It would not be in the Appellant's daughter's best interests to live in Rwanda. The appeal should be reheard.

9. Mr Jarvis for the Respondent relied on the Respondent's rule 24 notice. He submitted that the decision and reasons disclosed no error of law and should stand.

No material error of law

10. The tribunal indicated at the conclusion of submissions that it found no material error of law and otherwise reserved its decision which now follows. In the tribunal's view, the grant of permission to appeal in the Upper Tribunal was excessively generous by a considerable margin. The Appellant's appeal was heard before an experienced judge of the First-tier Tribunal and the Appellant was represented by experienced counsel of good standing. No doubt the possibility of misunderstanding is always present in the heat of the courtroom, but the decision to withdraw the asylum element of the claim was hardly a surprising one, particularly as it left the Article 3 and 8 ECHR claims intact. More to the point, there was simply no supporting evidence produced to the Upper Tribunal, either with the application or at the substantive hearing, to show that the Appellant's instructions had not been faithfully followed. There was, in short, no proper basis on which to grant permission to appeal on that head.

11. The grant of permission to appeal under Article 3 ECHR by the Upper Tribunal was also over generous. The decision and reasons demonstrates the most careful analysis of the Appellant's evidence, much from a positive credibility perspective. Mr Waite rightly did not seek to persuade the tribunal otherwise. No relevant risk factors which had not been considered by the judge were identified. There was no defect in the Article 3 ECHR decision.

12. As to the Article 8 ECHR challenge, as noted above, permission to appeal on that head was not specifically granted by the Upper Tribunal. Article 8 ECHR had, however, been raised in the onwards grounds of appeal to the Upper Tribunal, so that argument was permissible. But the arguments raised were so exceedingly feeble that they showed that the Upper Tribunal should also have refused permission to appeal on the Article 8 ECHR decision.

13. The judge considered every Article 8 ECHR aspect of the appeal in [30] onwards of her decision, first in effect through the lens of the Immigration Rules (Appendix FM and paragraph 276ADE) and then at large on Razgar [2004] UKHL 27 principles. It may well be that, in the light of SS (Congo) [2015] EWCA Civ 387, there was no need for the tribunal to go beyond the Immigration Rules, in that no compelling circumstances were identified requiring such consideration. Nevertheless, many judges prefer to cover every possibility by way of cross check and that can hardly be cause for complaint by the present Appellant.

14. Mr Waithe was unable to identify any relevant or material fact or matter which the judge had misunderstood or omitted to consider when considering the Article 8 ECHR case put forward on the Appellant's behalf. On the contrary, there was a meticulous examination of the evidence, clear findings and a balanced evaluation of proportionality. In the tribunal's judgment, the judge's decision was a comprehensive reflection on the various issues raised in the appeal. There is no basis for interfering with the judge's decision to dismiss the Appellant's appeal, which dismissal must stand.

DECISION

The tribunal finds that there is no material error of law in the original decision, which stands unchanged

Signed Dated

Deputy Upper Tribunal Judge Manuell 19 October 2016