Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00947/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 29 September 2016
On: 05 October 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

manuel [u]
(ANONYMITY DIRECTION NOT made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: No Appearance
For the Respondent: Mr S Kandola, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of USA, born on 22 January 1961. He has been given permission to appeal against the decision of First-tier Tribunal Judge Mozolowski, dismissing his appeal against the respondent's decision to refuse to grant entry clearance to the UK as a returning resident.

2. The respondent considered the appellant's application for entry clearance under paragraph 18 of the immigration rules. The respondent noted that his US passport showed that he had visited the UK on 18 May 2012, 12 May 2013, 15 May 2014 and 17 October 2014, but did not demonstrate that he had been granted indefinite leave to remain in the UK. Furthermore, he had stated that he had left the UK in 2001 to return to live in the United States. Therefore he had been away from the UK for longer than two years. Accordingly the application was refused under paragraph 18(i) and (ii) of the immigration rules.

3. The appellant appealed against that decision but did not request an oral hearing. He produced his old passport containing his indefinite leave to remain which was granted on 10 February 2000. His appeal was considered on the papers by First-tier Tribunal Judge Mozolowski on 22 December 2015 and was dismissed in a determination promulgated on 2 February 2016.

4. Judge Mozolowsi set out the relevant facts as stated by the appellant and as set out in two emails submitted from his wife. She noted that the appellant, a national of the USA residing in North Carolina, had worked in the UK on a US Air Force base and had met his British wife in the UK, 29 years ago, and had married her in 1986. He had remained in the UK and obtained indefinite leave to remain as a spouse. In early/mid 2001 he had moved with his family to the USA. However that had proved problematical financially for the family with the decline in the dollar and house prices rising in the UK and as a result the family could not afford to move back to the UK. In 2006 his wife returned to the UK with their daughter to see if she could adjust to a British high school and he remained in the USA with his son. That did not work out and so his wife and daughter returned to the USA and their children completed their education in USA. The appellant and his spouse now owned properties in the UK and USA. The appellant had been living in the USA but had visited the UK regularly on six month visit visas. His wife's mother had been diagnosed with Alzheimer's disease and his wife had been helping to care for her and, it was said, was now living full-time in the UK. Their UK property was near her mother's house. The appellant wished to return to the UK on a more permanent basis so that he could be there with his wife.

5. Judge Mozolowsi accepted that the appellant had indefinite leave to remain in the UK at the time he left in 2001, but was not satisfied that he did so when he last left the UK after his visit in October 2014. She noted a lack of any evidence before her to show that he had returned to the UK on a regular basis less than every two years since 2001. She considered that since 2001 he had not been normally resident in the UK and that he had employment and a home in the USA. She also noted that, although it was said that the appellant's wife was living full-time in the UK, there were clear indications in the evidence that she travelled between the UK and the USA. There was no evidence that the children were in the UK and there appeared to be strong ties to the USA. The judge did not, therefore, accept that the appellant's spouse had been shown to be living full-time in the UK. She found that the appellant was unable to meet the requirements in paragraph 18 and was unable to benefit from the discretion in paragraph 19. The judge then went on to consider Article 8 but considered that the appellant was unable to meet the requirements in Appendix FM or paragraph 276ADE of the immigration rules and that there was no case outside the rules.

6. Permission to appeal to the Upper Tribunal was sought by the appellant and granted on 1 August 2016. The matter then came before me.

7. There was no appearance by or on behalf of the appellant at the hearing and no explanation for the appellant's spouse's absence or for the absence of any other party on behalf of the appellant. Mr Kandola made brief submissions and I advised him that I was upholding Judge Mozolowki's decision.

8. My reasons for so doing are as follows.

Consideration and findings

9. The appellant's grounds seeking permission consist of a letter from the appellant and his wife responding to various points raised by Judge Mozolowsi which she noted had not been explained in the evidence before her and providing further details of the appellant's wife's concerns about being available for her mother's care. Permission was granted on the basis that the judge arguably gave insufficient weight to the question of emotional dependency by the appellant's wife's mother upon his wife.

10. However, as Mr Kandola submitted, the grounds do not in fact seek to identify any errors of law made by the judge, but simply provide a further narrative and a response to some of the judge's concerns arising from gaps in the evidence.

11. The evidence before the judge was extremely limited. She considered the accounts given by the appellant's spouse in her two emails produced for the appeal, setting out the family circumstances, but as she said at [26], there were more questions raised than answers given in that evidence. The judge pointed out in particular that there was no indication in the evidence that the appellant had travelled back to the UK on a regular basis less than every two years after 2001; there were clear indications in the evidence that his spouse travelled back and forth between the UK and the USA; there was no evidence where the children were; there was no explanation from the appellant as to whether he intended to settle permanently in the UK rather than just visit for extended periods; there was no evidence about the extent of the appellant's mother-in-law's condition or the level of care available to her from other family members, there was no evidence to explain the extent of the role played by the appellant's wife in her care; there was no indication how close the appellant's home was to his mother-in-law's home; and there was no evidence about what would happen to the appellant's home in the USA if he came to the UK on a more permanent basis. The grounds of appeal provide an answer to some of these questions, but the information provided was not before the judge at the time she made her decision, and she cannot be said to have erred in law by failing to consider evidence not provided to her.

12. On the evidence she had available to her, the judge considered and addressed all relevant matters. At [25] and [26] she considered in some detail the question of emotional dependence by the appellant's wife's mother. It seems to me that, faced with an appeal in which there was no oral evidence and very limited written evidence, the judge did all that she possibly could and provided clear and cogent reasons for reaching the conclusions that she did. The appellant plainly could not meet the requirements of paragraph 18 and the limited evidence before the judge provided no basis upon which he could demonstrate any entitlement to the discretion afforded under paragraph 19. The judge was unarguably entitled to conclude as such and, for the reasons cogently given at [16] to [28], to conclude that the appellant could not succeed under Article 8, either on the basis of Appendix FM and paragraph 276ADE or outside the immigration rules.

13. Accordingly, I find no errors of law in the judge's decision and I uphold the decision.

DECISION

14. The making of the decision of the First-tier Tribunal did not involve an error on a point of law. I do not set aside the decision. The decision to dismiss the appeal stands.

Signed
Upper Tribunal Judge Kebede Dated: 05 October 2016