(Immigration and Asylum Chamber) Appeal Number: HU/03521/2019
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 20 February 2020
On 5 March 2020
UPPER TRIBUNAL JUDGE KAMARA
MR LAWRENCE SIAME
(ANONYMITY DIRECTION not made)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr A Mackenzie, counsel instructed by Legal Rights Partnership
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer
DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Young-Harry, following an appeal heard on 10 May 2019 and promulgated on 13 September 2019. Permission to appeal was granted by First-tier Tribunal Judge Neville on 3 January 2020.
2. No direction has been made previously, and there is no reason for one now.
3. The appellant entered the United Kingdom on 22 March 2002 with entry clearance as a student, valid until 11 March 2003. He was granted several further periods of leave in the same capacity, the last of which expired on 30 April 2008. The appellant made an in-time application for further leave to remain as a student which was refused on 30 June 2008. He requested a reconsideration however the original decision was maintained on 11 August 2008. The appellant's appeal against that decision was rejected as being out of time. An application made for leave to remain outside the Rules was refused without a right of appeal on 28 February 2011. An application to reconsider that decision was refused on 28 April 2015 and the claim was certified as clearly unfounded. The appellant made a human rights' claim on 30 August 2016 and it is the refusal of this claim, on 8 February 2019, which is the subject of this appeal.
4. The appellant's human rights claim is based on there being very significant obstacles to his integration in Zambia, where it was said he had no social or family ties because he had left there 21 years ago. The respondent noted that the appellant spoke English, that his wife and child returned to Zambia and there was no evidence that his family would not be able to assist and accommodate him.
The decision of the First-tier Tribunal
5. The judge concluded that the appellant could reintegrate in Zambia and that his removal was a proportionate step.
The grounds of appeal
6. There were two grounds of appeal. Firstly, the judge erred in her understanding of the length of the respondent's delay in reviewing the earlier decision, failed to have regard to the principles set out in EB (Kosovo)  UKHL 41 and found it an aggravating feature that the appellant had essential NHS treatment for a condition which arose after the respondent's delay. Secondly, the judge's approach to proportionality of removal was simplistic and not the fact-sensitive individual assessment required.
7. Permission to appeal was granted on the basis sought.
8. Mr Mackenzie relied on the grounds. He contended that the appellant's history was not in dispute, in that he was born in Zambia in 1983, his parents died when young and he was raised by grandparents until both were deceased. The appellant was homeless from the age of about 8 or 9 until Christian missionaries took responsibility for him. He moved to Botswana at around the age of 14 where he was cared for by other missionaries. The appellant was sponsored to come to the UK in 2002 to study accountancy and had resided here since. He had leave to remain until June 2008, when he received a refusal of his application for further leave. The appellant left it too long to appeal and remained in the United Kingdom.
9. A further application made led to a refusal decision in 2011, regarding which the appellant requested a right of appeal. That request was chased for around 4 years and involved the support of an MP. The respondent informed the MP that the appellant was a legacy claimant. Ultimately a decision was made in 2015, certifying the claim as clearly unfounded. The appellant's further application of April 2016 was rejected under paragraph 353 of the Rules after a further delay of two and a half years; a decision which the appellant challenged successfully in order to obtain a right of appeal.
10. Mr Mackenzie emphasised that the appellant had no family of friends in Zambia. His relationship with a former partner, to whom he was not married, broke down and he does not know her whereabouts. The judge had not challenged the contents of the appellant's witness statement and it was unclear what was made of the family contact issue. The appellant left Zambia 21 years ago when a child, he had not been there since and his entire private life was in the United Kingdom. There was an absence of ties in Zambia, in the form of relatives, property and employment. The judge did not comment on that lack or say what importance attached to that. While the judge had said at  that they were adopting a balance sheet approach, this was not adopted in practice. The judge mentioned factors on the side of the respondent, however, there was no reference to any factors on the appellant's side of the balance sheet as described above.
11. Mr Tufan argued that it was wrong to say the appellant was a minor when he arrived in the United Kingdom. Furthermore, he made the application for entry clearance from Zambia. He denied that there had been any delay, stating that the appellant had completed his studies and had no right to be in the UK. The appellant was not kept waiting for a decision, he had already received it and he just wanted it to be reconsidered. As the previous judge had said, there was no prejudice to the appellant because he had finished his studies. Referring to EB (Kosovo), Mr Tufan submitted that the appellant's case did not involve delay as a result of a dysfunctional system and that the facts of his case were far from those of the claimant in that case. He suggested that EB (Kosovo) was no longer relevant because the case predated section 117B of the 2002 Act. He argued that there were no factors in the appellant's favour for the judge to consider because the appellant was an adult who came to the UK for a purpose which had been fulfilled. Furthermore, with reference to Agyarko, there were no unjustifiably harsh circumstances raised in this case.
12. In response, Mr Mackenzie commented that the respondent made no argument to the effect that the judge did not err in her approach. It was unsustainable to say the appellant's lengthy residence or almost complete lack of ties to Zambia was irrelevant. It was not argued on behalf of the respondent that the judge took these factors into account and she did not.
13. At the end of the hearing I announced that I was satisfied that the First-tier Tribunal made material errors of law.
14. I canvassed the possibility of proceeding immediately to remake the appeal however owing to the lack of common ground and issues raised by Mr Tufan during the hearing, the appeal could not proceed as further factfinding was required.
Decision on error of law
15. In relation to the first ground, the judge made a factual error in stating that the respondent's delay amounted to "2 years" . The delays totalled 6 and a half years. In addition, the judge applied the wrong test, in that she was of the view that the delay was irrelevant because it had not prejudiced the appellant . The correct test as set out in EB (Kosovo) is that delay could be relevant in three ways. The first and third of those are relevant here, in that a person may develop closer personal and social ties and establish deeper roots in the community than he could have shown and thus strengthen their case. In addition, delay may be relevant in reducing the weight that would otherwise be accorded to fair and firm immigration control if the delay is shown to be the result of a dysfunctional system which yields unpredictable and unfair results. The judge further erred in attaching weight to the fact that the appellant had "made use of the NHS" at  and appears to have taken this matter against him. The appellant's medical treatment arose from a medical emergency following his collapse which cannot reasonably be a factor on the respondent's side of the balance sheet.
16. The judge's treatment of the appellant's private life claim was limited to considering that he could replicate it in Zambia by joining another church . That was the beginning and end of the judge's consideration of the appellant's circumstances. At  the judge briefly lists the factors under consideration in the balancing exercise prior to concluding at  that the appellant's removal is a proportionate outcome. She mentions the public interest, his precarious and unlawful leave, that he speaks English and has made use of the NHS. There is no reference to the appellant's lack of ties in Zambia, that his relatives are deceased, that he has no friends, that he last lived there 21 years ago, that he has no property, never worked in Zambia and had spent the entirety of his adult life in the United Kingdom. This one-sided analysis is manifestly unfair and amounts to a material error of law.
17. While mindful of statement 7 of the Senior President's Practice Statements of 10 February 2010, it is the case that the appellant has yet to have an adequate consideration of his human rights appeal at the First-tier Tribunal and it would be unfair to deprive him of such consideration. In addition, the respondent was not represented before the First-tier Tribunal and as became apparent during the error of law hearing, there appeared to be issues in dispute.
The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Priory Court, with a time estimate of 3 hours by any judge except First-tier Tribunal Judge Young-Harry.
Signed: Date 25 February 2020
Upper Tribunal Judge Kamara