Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03446/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 November 2016
On 15 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

MISS REGINA MAPURANGA
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Muzira, Solicitor
For the Respondent: Mr P Nath, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal from the decision of First-tier Tribunal Judge Andrew promulgated on 11 March 2016. The appellant is a citizen of Zimbabwe who was born on 15 November 1962. On 16 July 2015 the Respondent refused the appellant's application for leave to remain in the United Kingdom, which had been pursued primarily under human rights grounds.
2. The appellant is some 54 years of age and has a lengthy and complex immigration history, having arrived in this country as a visitor in May 1999. Throughout 1999 into 2001 and further into 2004 various applications were made for further leave to remain which were all dismissed. She was declared an overstayer by the issuance of form IS151A on 22 December 2004. Her current claim, under human rights considerations, dates from 13 May 2008. The judgment of the First-tier Tribunal sets out the findings which the judge came to based upon the matters that were in issue before her. Paragraph 20 reads as follows:
"The Appellant's representative's skeleton argument confirms reliance on two matters, the first of which is Paragraph 276ADE(vi). I am satisfied, on the evidence that is before me, the Appellant has not lost all her ties to Zimbabwe and there are not significant obstacles to her returning to that country. She has her mother and one daughter there. The Appellant has spent the majority of her life there. While I accept she has lived in the United Kingdom for seventeen years for the first thirty seven years she lived in Zimbabwe. There is no reason why she should not obtain some form of employment in Zimbabwe such as to be able to maintain herself. I accept there may be difficulties and challenges for the Appellant but these do not amount to significant obstacles".
In consequence upon those findings, in paragraph 21 of the determination, the judge dismissed the appeal under the Immigration Rules.
3. The judge went on to consider applying SS (Congo) and Others [2015] EWCA Civ 387 where compelling circumstances could be demonstrated justifying an assessment outside the Rules. The judge did not in paragraph 22 immediately identify such compelling circumstances but proceeded in the following paragraphs to analyse the various matters to be considered under the guideline authority of Razgar [2004] UKHL 27. The judge said as follows:
"25. In making my proportionality assessment I must, of course, consider the best interests of [the Appellant's grandchildren]. However, for the reasons that I have given above I am not satisfied that the Appellant's care for the children is as claimed by her and [her daughter]. Whilst I have little doubt that the children will miss their grandmother it is in their best interests for them to remain with their mother in their family unit.
26. Article 8 does not give a right of home or accommodation or even employment for those returning to their own country. However, for the reasons that I given above I do not find the Appellant would be in very severe hardship on her return. The Appellant has spent most of her life in Zimbabwe and will be better equipped on her return by reason of her education and experience in the United Kingdom.
27. I have to have regard to the public interest considerations under Section 117B including that immigration control is in the public interest. Whilst I accept there have been delays on the part of the Respondent the fact remains that much of the private life the Appellant has developed whilst she has been in the United Kingdom is at a time when her presence was precarious. This means that I am able to attach little weight to the Appellant's private life developed in the United Kingdom including her relationship with her family members.
28. I do accept that the Appellant speaks English. However she has not demonstrated her present ability to be financially independent.
29. Putting all these factors together and considering the case in the round, I find, for the reasons set out above, that there are no compelling circumstances and that the decision of the Respondent was not disproportionate to the family and private life circumstances of the Appellant and her family members".
4. In granting permission to appeal in this matter, Upper Tribunal Judge Perkins stated the following:
"3. I am far from satisfied that any error will be found to be material but the appellant has lived in the United Kingdom for more than 17 years and she claims that for 7 of those years she was awaiting a decision from the Respondent.
4. It is arguable that, in the absence of a proper explanation for the delay, she should have been allowed to remain".
5. In advancing the appeal before me this morning Ms Muzira makes her primary focus the issue of delay. She says that the judge failed properly to take into account the unexplained delay both in her Article 8 proportionality assessment and that such a view similarly infected her assessment of the case under the Immigration Rules and that delay was a criterion which should have featured more heavily in the issue of determining whether there were insurmountable obstacles to returning to Zimbabwe.
6. Ms Muzira made particular reference to the decision of the House of Lords in EB (Kosovo) (FC) v Secretary of State for the Home Department [2008] UKHL 41 and took me in particular to paragraphs 14 and 15 of the opinion of Lord Bingham of Cornhill. There are two ways in which delay is relevant in a decision making process. First, the applicant may during a period of any delay develop closer personal and social ties and establish deeper roots in the community than would otherwise have been the case. Lord Bingham continues at paragraph 15 that there is a second less obvious way in which delay is relevant and this is as follows:
"An immigrant without leave to enter or remain is in a very precarious situation, liable to be removed at any time. Any relationship into which such an applicant enters is likely to be, initially, tentative, being entered into under the shadow of severance by administrative order".
Lord Bingham continues:
"If months pass without a decision to remove being made, and months become years, and year succeeds year, it is to be expected that this sense of impermanence will fade and the expectation will grow that if the authorities had intended to remove the applicant they would have taken steps to do so. This result depends on no legal doctrine but on an understanding of how, in some cases, minds may work and it may affect the proportionality of removal".
7. Ms Muzira also took me briefly to Enforcement Instructions and Guidance, a policy document of the Secretary of State and in particular to Chapter 53 which deals with issues of exceptional circumstance. She took me to a number of matters within that guidance where delay is referred to, although she conceded this was not part of the case as advanced on the appellant's behalf before the First-tier Tribunal.
8. I have read with care the factual findings which the judge made and it is plain to me by reference to paragraphs 10 and 27 that the judge had uppermost in her mind the issue of delay when coming to the conclusions that she did. I do not think she can be criticised for failing to make any reference to EB (Kosovo) because it is clear from the tenor of the decision that the import of the observations I have quoted lay at the heart of her consideration of the appeal before her. I do not consider there to be any error of law in the judge's analysis of the factors relevant to paragraph 276ADE(vi) and the judge coming to the conclusion that the appellant had not lost her ties to Zimbabwe such that there were not significant obstacles to her returning. In my assessment that factual conclusion is unimpeachable.
9. That then brings me next to the criticism made of the Article 8 assessment and the proportionality assessment. The submission here is that the judge gave undue prominence to the public interest considerations under Section 117B and insufficient weight to the considerable delay in determining this matter. Mr Nath was not in the position to offer any explanation for the Secretary of State's delay. Of course it is regrettable and unfortunate that lengthy delays occasionally occur in the administration of immigration control. Nonetheless, reading the determination it is plain to me that the fact of unexplained delay was in the forefront of the judge's mind and that it was taken fully into account. I accept that it is a little unfortunate that in paragraph 10 the judge states:
"However, I have nothing before me to show that had the Respondent dealt with the Appellant's applications efficiency, as it should have done, there would have been any leave granted to the Appellant".
That is not necessarily the sole way of looking at delay but even taking that sentence out of context, it does not detract from the fact that the judge put all factors into consideration including the delay but nonetheless came to the conclusion that there was no compelling circumstance permitting the matter to be successfully reviewed and allowed under Article 8.
10. In my view, the judge's assessment was within the broad parameters of discretion properly allowed to fact-finding Tribunals. Other judges may have come to another conclusion, but the conclusion of this judge is not one which can in any way amount to a material error of law. In the circumstances this appeal must be dismissed and the decision of the First-tier Tribunal is maintained.

Notice of Decision
This appeal is dismissed and the decision of the First-tier Tribunal maintained.
No anonymity direction is made.

Signed Mark Hill Date 11 November 2016

Deputy Upper Tribunal Judge Hill QC