HU/03386/2015

• Status of case: Unreported
• Hearing date: 19 Jan 2017
• Promulgation date: 7 Feb 2017
• Publication date: 8 Oct 2021
• Last updated on: 8 Oct 2021

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03386/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 19 January 2017
On 07 February 2017



Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

Christine Kayemba
(anonymity direction NOT MADE)
Respondent


Representation:

For the Appellant: Mr. P. Duffy, Home Office Presenting Officer
For the Respondent: Ms P. Glass, Counsel instructed by Citywide Solicitors


DECISION AND REASONS

1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Metzer, promulgated on 18 August 2016, in which he allowed the appeal of Christine Kayemba against the Secretary of State's decision to refuse to grant leave to remain on the basis of her family and private life.
2. For the purposes of this decision I refer to the Secretary of State as the Respondent, and to Christine Kayemba as the Appellant, reflecting their positions as they were before the First-tier Tribunal.

3. Permission to appeal was granted as follows:

"The respondent alleges that the judge has failed to give adequate reasons for his conclusion that the appellant's private and family life outweighs the public interest factors that have been identified, most significantly that the appellant cannot meet the requirements of the immigration rules. The respondent also seeks permission because the judge has failed to have proper regard to the other public interest considerations in s.117B of the 2002 Act.

The grounds are arguable. It is arguable that at [14] and [15] that the judge has had regard to the strength of the appellant's private and family life as established over a 17-year period in the UK but has not identified the strength of the public interest considerations. As a result of this failure, it is also arguable that the judge has failed to give adequate reasons for finding that the former outweighs the latter."

4. The Appellant attended the hearing. I heard submissions from both representatives, following which I announced that I found the decision involved the making of a material error of law and that full reasons would follow.

Submissions

5. Mr. Duffy submitted that this was essentially a reasons challenge, but the judge had also misdirected himself in law. He had failed to look at the case through the prism of the immigration rules. He had failed to consider properly the factors set out in section 117B. The consideration of Article 8 outside the immigration rules was flawed and inadequately explained. It was not clear whether family or private life had been engaged. In [14] it appeared that the judge considered that family life had been engaged but there were no reasons given as to why this was. There must be an ongoing dependency beyond the normal emotional ties found between adult relatives. The test was "dependency" beyond the normal emotional ties, not a "relationship" beyond the normal emotional ties. The wrong test had been applied outside the rules. The decision involved making of material errors of law.

6. Ms Glass referred me to the case of Dube (ss117A-117D) [2015] UKUT 90 (IAC), in particular paragraphs (1)(e) and (2) of the headnote. Razgar [2004] UKHL 27 was crucial. If the judge had applied the test, it did not matter how it had been referred to. Substance not form was important. She referred to [15] where the judge had referred to section 117B. She submitted that the judge had had this in mind when he had undertaken his analysis. The judge had also referred to the key authority of SS (Congo) [2015] EWCA Civ 387 in [15]. She accepted that the decision was fairly brief but submitted that the essentials had been covered.

7. It was clear that the appeal was outside the immigration rules only, [1], and so the judge had moved immediately to a consideration under Razgar. It fell to be considered under SS (Congo) as was referred to in [15]. It was clear that the judge had considered all of the exceptional circumstances. The compelling circumstances were identified in [15]. She submitted that he had the circumstances set out in paragraph [5] in mind. It was accepted by the Respondent's representative in the First-tier Tribunal that there had been a delay by the Respondent in making the decision which had lead to the establishment of private and family life [1]. The delay had allowed roots to be put down. I was referred to the case of EB (Kosovo) [2008] UKHL 41.

8. The Appellant had no home to go to. The issues had all been pulled together in paragraph 15. It was unduly harsh for her to return as she had a bleak future. The judge was quite right to proceed to a Razgar analysis following the case of Dube. The judge had taken into account all of the points and weighed them up, had found that the relationship went beyond the usual ties, and that there was a disproportionate interference in her family and private life. He had noted the extent of the Appellant's involvement in the church and her friendships here. Ms Glass submitted the factors set out in section 117B had been considered, but the Appellant's compelling personal circumstances weighed heavily on the other side. It was disproportionate to interfere with her family and private life after the seventeen years she had spent as a carer and grandmother, given her age. I was referred to paragraph [14] where the judge found that the level of support that the Appellant had given to her grandson was greater owing to his illness.

9. In response Mr. Duffy submitted that this was not a case where the Respondent was submitting that the Appellant could not succeed, but rather that inadequate reasons had been given. A number of factors seemed to mitigate against the Appellant, and it was therefore not clear why the decision had been allowed. He submitted that on the face of it, it seemed like an appeal which should have been dismissed. In paragraph [14] the judge found that the Appellant had a substantial role, together with his mother, in looking after her grandson. However, he was now going to university and was not at the home for most of the week. He no longer had leukaemia so the same level of care was not required.

10. He accepted that family life had been accepted by the Presenting Officer at the hearing, but the test had been mischaracterised in terms of dependency not a relationship. The current and ongoing dependency had not been accepted, and there did not seem to be any. In relation to the case of Dube, this weighed in favour of the Respondent's case. Substance not form was important, and there was neither here. The judge had mentioned section 117B, but had not dealt with the factors set out within it. The appeal had not been considered through the lens of the immigration rules. There had been no balancing act. The assessment under Razgar was inadequate.


Error of Law Decision

11. The judge's findings are set out in two paragraphs, [14] and [15]. The evidence is set out in paragraphs [2] to [11], but there is no indication in the findings that this evidence has been accepted in its entirety. The judge does not refer back to the evidence in his findings.

12. In paragraph [1] the judge sets out that the appeal is solely under Article 8 outside of the immigration rules. This must mean that the Appellant has conceded that she cannot meet the requirements of the immigration rules in relation either to private or family life. Otherwise, she would have appealed against the decision on the basis that she met the requirements of the immigration rules. There is no consideration of this concession by the Appellant that she cannot meet the requirements of the immigration rules. There is no consideration of the weight that has to be given to this under section 117B(1).

13. An acceptance that the Appellant does not meet paragraph 276ADE(1)(vi) means that the Appellant has conceded that there would not be very significant obstacles to her reintegration into Uganda. Yet it was submitted by Ms Glass that she would have a bleak future in Uganda, and it would be unduly harsh to ask her to return there, although this was not found by the judge. The judge states that the Appellant has no family in Uganda, no home to go to and is no longer in good health [15]. However, given that the Appellant has accepted that she cannot meet the requirements of the immigration rules, the Appellant must consider that these factors would not prevent her from returning to Uganda. This is a relevant consideration for the balancing exercise outside the immigration rules, especially given section 117B.

14. I find that it is necessary to look at Article 8 outside the immigration rules through the prism of the immigration rules. Therefore even if an appeal is solely under Article outside of the immigration rules, there must be some acknowledgment of the fact that this is a concession on the part of an appellant that she cannot meet the requirements of the immigration rules.

15. I find that the judge has not considered Article 8 outside the immigration rules through the prism of the immigration rules. SS (Congo) necessitates looking at the immigration rules because it requires a judge to consider whether there are compelling circumstances above and beyond those covered by the immigration rules. Paragraph 15 contains the entirety of his assessment of the various factors. The "compelling circumstances", such as can be identified, appear to be the fact that the Appellant has been in the United Kingdom for a substantial period, the fact that she has built up a very close family unit with her daughter and grandson, and the fact that she has no family in Uganda, no home to go to and is no longer in good health. There is no reference to the fact that the substantial period was when she was in the UK illegally having entered on a false passport. In relation to the circumstances in Uganda, by accepting that she cannot meet the requirements of the immigration rules, she has accepted that these are not significant obstacles to her reintegration, and there are no reasons given for why therefore these are compelling circumstances.
16. In relation to section 117B, while this is mentioned in paragraph [15], the factors set out in that section are not given any consideration. There is no consideration given to the weight to be given to any private or family life established when a person's leave has been precarious or illegal as required by sections 117B(4) and (5). There is no reference to financial independence (section 117B(3)).

17. Although the Respondent had accepted that the Appellant had a family life in the United Kingdom, there is an inadequate consideration of the relationship between the Appellant and her grandson. There is no reference to the fact that her grandson's dependency on the Appellant has now reduced.

18. I find that the decision involves the making of a material error of law in the failure to give adequate reasons for finding that the Appellant's rights under Article 8 were breached. I find that the judge has erred in failing properly to consider the public interest considerations in section 117B.

19. I have taken account of the Practice Statement dated 10 February 2010, paragraph 7.2. This contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. Given the nature and extent of the fact-finding necessary to enable this appeal to be remade, having regard to the overriding objective, I find that it is appropriate to remit this case to the First-tier Tribunal.

Notice of decision

20. I find that the decision involves the making of a material error of law and I set the decision. No findings are preserved.

21. The appeal is remitted to the First-tier Tribunal to be remade.


No anonymity direction is made.



Signed Date 6 February 2017

Deputy Upper Tribunal Judge Chamberlain