Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-001795
First-tier Tribunal No: HU/03635/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 April 2023

Before

UPPER TRIBUNAL JUDGE KEITH
DEPUTY UPPER TRIBUNAL JUDGE METZER KC

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

IHUOMA AMOBI
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms A Ahmed, Senior Home Office Presenting Officer
For the Respondent: Ms V Akintola, Counsel, of Malcom & Co Solicitors

Heard at Field House on 23rd February 2023

DECISION AND REASONS
1. These are the reasons which reflect the oral decision which we gave to the parties at the end of the hearing.
2. This is an appeal by the Secretary of State against the decision of a Judge of the First-tier Tribunal, Judge Dean (the ‘FtT’) who allowed the Ms Amobi’s appeal, in a decision and reasons promulgated on 28th January 2022. To avoid confusion, we will refer to the appellant before us as the Secretary of State, and to the respondent, Ms Amobi, as the Claimant, for the remainder of these reasons.
3. Before the FtT, the Claimant had appealed against the Secretary of State’s decision dated 25th May 2021, to refuse her leave to remain in the UK outside the Immigration Rules. None of the facts were disputed. The context is that the Claimant is a citizen of Belize, with a date of birth given as 24th September 1969. She had entered the UK on 7th November 2019 with a valid visit visa for six months. We do not recite the remainder of the immigration history except to say that there has been no suggestion that the Claimant has ever overstayed. The Claimant then applied successfully to extend her leave during the Covid outbreak, when she was unable to return to Belize. During this period, the Claimant resided with her sister and her brother-in-law with whom she developed a close relationship. During her absence from Belize, the Claimant lost her accommodation and her job.
4. The FtT recorded at §8 of her decision that on 22nd August 2020, the Claimant made an application for leave to remain in the UK outside the Immigration Rules, on compassionate grounds. Those were that she had no job or accommodation to return to in Belize and was dependent on her sister. The FtT accepted the close relationship between the two and made repeated findings, including at §12, of dependency. The FtT went on to consider, at §13, the developing relationship between the Claimant and her 11-year-old niece. The Claimant had also developed a private life, including within her local UK church. The FtT accepted that the Claimant was an honest and straightforward witness, who did not seek to exaggerate her difficult situation, particularly of losing her job and home, in Belize. At §17, the FtT considered the Claimant’s proactivity in not letting matters simply take their course but instead, seeking to regularise her stay on a more permanent basis and making an application for leave. The Claimant was aware that she could apply as an adult dependent relative, but the problem was that she could not make the application from outside the UK, as she could not return to Belize, during the Covid pandemic in August 2020. As the FtT noted, once again at §17, without a job or home to return to, the Claimant had become dependent on her sister. The FtT noted:
“17. The exceptional circumstances in which she found herself meant that the Appellant was in the United Kingdom and therefore she made her application on compassionate grounds outside the Immigration Rules”.
5. The FtT went on to consider the Secretary of State’s consideration of the Claimant’s application. The Claimant could not meet the relevant provisions of the Immigration Rules. The Secretary of State did not accept that there were exceptional circumstances that would make a refusal of leave in breach of Article 8. The FtT was conscious of, and referred expressly at §19 to, the appeal being outside the Rules for the purposes of Article 8. The Claimant had to establish that there was family or private life which engaged Article 8 and also the wider impact on family members. The FtT found that the Claimant had a family and private life which engaged Article 8, and that there would, in the event that the Claimant was returned to Belize, be interference with those protected rights, at §20. At §21, the FtT went on to consider that an appeal outside the Immigration Rules, which involved a proportionality exercise, required the various factors to be sufficiently strong to outweigh the strength of the public interest in the maintenance of effective immigration control.
6. The FtT expressly referred at §21 to having regard to Section 117B of the Nationality, Immigration and Asylum Act 2002, which set out the public interest considerations, with particular regard to the maintenance of effective immigration controls being in the public interest. The FtT reminded herself that when conducting a required balancing exercise, that the public interest should be given considerable weight. At §22, the FtT went on to consider the lawfulness of the Claimant’s presence and her good character, which weighed in her favour. The FtT went on to consider at §23 the Claimant’s dependency on her UK family.
7. The FtT bore in mind that but for the fact that the Claimant was already lawfully in the UK, she would have made an application as an adult dependent relative under Appendix FM, Section EC-DR. The FtT was conscious at §25 that the Claimant could not meet the requirement of E-ECDR.1.1. but the FtT nevertheless took as her starting point the suitability and eligibility requirements of that section and found that the Claimant met those requirements. Apart from being in the UK by force of circumstance, the FtT concluded that the Claimant satisfied the requirements of entry clearance as an adult dependent relative, while plainly being conscious that in one respect the appeal had to be outside the Immigration Rules, because the Claimant was in the UK. The FtT continued, at §26:
“26. Accordingly, looking at the totality of the evidence before me, I find that the ability of the Appellant to meet the requirements of an application for entry clearance as an adult dependent relative weighs extremely heavily in the Appellant’s favour. The Appellant’s prolonged stay in this country was not out of choice and therefore I find that this does not weigh against her because she entered and remained here lawfully”.
8. The FtT went on to consider the caring role that the Claimant played, and her involvement in her local community, to which the FtT gave weight. There were strong integrative links, following an enforced and prolonged stay which, added to the earlier findings, weighed heavily in the Claimant’s favour. The FtT was anxious to stress at §30 that this case turned on its very specific facts, in particular what she described as “the compelling circumstances presented by the factual matrix” and acknowledged by the Secretary of State who twice granted the Claimant exceptional leave to remain. The FtT noted and acknowledged that the public interest was to be given considerable weight when carrying out a proportionality exercise but when looking at the totality of the evidence there were sufficiently strong factors weighing in the Claimant’s favour, and the FtT therefore found that the Secretary of State’s refusal of leave was a disproportionate interference.
The Grounds of Appeal and the Grant of Permission
9. The Secretary of State appealed against the decision in grounds of appeal dated 3rd February 2022. The paragraphs are numbered a) to h). Whilst we are conscious that Ms Ahmed was keen to rely on each part of those grounds, which we have considered both individually and altogether, they very broadly speaking fall into two headings, as indeed understood by the Judge who ultimately granted permission, to which we refer further below. The first was a challenge that the FtT had erred in failing to consider the requirement of paragraph E-ECDR.2.4 of Appendix FM which was that as a result of age, illness or disability, the applicant required long term care to perform everyday tasks. She had also failed to consider para E-ECDR.2.5, which stipulated that the level of care must be unavailable or unaffordable in a person’s country of origin.
10. We shall consider the remainder of those grounds in a moment, which deal with various aspects of the weight to be attached to elements of the Claimant’s private and family life, but we pause at this stage to address the issue of whether the two paragraphs from the Immigration Rules, relied on in the grounds, are relevant. As we canvassed with Ms Ahmed, para E-ECDR.2.1. plainly applies to siblings. This includes that an applicant must be a brother or sister aged 18 or over. The same section allows for applications by parents or grandparents. The provisions later include references that are clearly specific only to parents or grandparents either of a partner or the sponsor. These are paras E-ECDR.2.4 and 2.5. They are not applicable to the Claimant.
11. We come on to the grant of permission. Whilst we are not bound to attach particular weight to any grounds as described by the Judge in granting permission, we observe that in the grant of permission dated 12th April 2022, Judge Monaghan stated that the FtT had arguably made an error of law in failing to take into account sections E-ECDR.2.4. and 2.5. Judge Monaghan went on to conclude that while the remaining grounds were less meritorious, she did not limit the grant of permission.
The Hearing Before Us
12. As we have indicated, we canvassed with Ms Ahmed whether the first ground, which focussed on paras E-ECDR.2.4 and 2.5, could be correct. While Ms Ahmed was not instructed to make any concession, she provided no submissions on how they could be applicable and could only repeat the grounds. She raised the question as to what else a sibling applicant needed to prove, if anything. The crucial additional factor, in our view, is a requirement of dependency. We are therefore able to deal with this element of the appeal swiftly and conclude that not only is there no error of law in the FtT’s decision as the two particular paragraphs relied upon in the grounds are plainly inapplicable to the Claimant, but also that this is not a ground on which permission should ever have been granted. The first ground, as we frame it, fails and is dismissed.
13. We turn to the remainder of the grounds. They are challenges to various aspects of the FtT’s proportionality assessment. We pause to note that the Secretary of State did not challenge the FtT’s findings on the existence of family and private life, or the FtT’s numerous findings that the Claimant is dependent on her sister and brother-in-law. Instead, at §§ (d) to (e) of the grounds, the Secretary of State argues that the FtT failed to consider the precarious nature of the Claimant’s family life. Rajendran (s117B – family life) [2016] UKUT 00138 (IAC) is authority for the proposition that the scope of the statutory provisions in section 117B of the 2002 Act did not prevent decision-makers from attaching limited weight to precarious family life. The Secretary of State also argued at § (g) that the FtT had failed to identify unjustifiably harsh consequences, as considered by the Supreme Court in R (Agyarko and Ikuga) v SSHD [2017] UKSC 11, or any adverse consequences arising for the Claimant or her family, should she return to Belize. The FtT had made no findings on whether there were very significant obstacles to her integration in Belize. Finally, the Secretary of State argued that the FtT had erred at §29 of her decision by attributing significant weight to the Claimant’s private life contrary to the provisions in Section 117B(5) of the 2002 Act.
14. Ms Akintola relied on the Rule 24 response, which it is unnecessary for us to repeat in detail. In short, the Secretary of State’s appeal “island-hopped” between various pieces of evidence, in attempting to challenge a proportionality assessment that was open to the FtT (see Joseph (permission to appeal requirements) [2022] UKUT 00218 (IAC)).
15. We are very conscious that our role is not to ask ourselves what we would have decided in the FtT’s position, but to ask ourselves, particularly in a paradigm case of an assessment of the weight of factors in a proportionality assessment, and where there are no disputed facts and no perversity challenge, whether the FtT’s reasons were insufficient; or whether there was a material misdirection or misapplication of the law.
16. We have set out the FtT’s reasons at some length, to explain the clarity and adequacy of those reasons. In our view, the FtT was plainly aware of the necessity of “exceptional circumstances” (in the sense discussed in Hesham Ali v SSHD [2016] UKSC 60). She directed herself to the significant weight to be placed on public interest in the maintenance of immigration controls, but also, for example, the fact of the two prior grants of exceptional leave (§22). While the FtT did not expressly refer to para GEN.3.2 of Appendix FM, namely unjustifiably harsh consequences, she had turned her mind to the core of this appeal, which was the relationship between the Claimant and her family in the UK. The FtT considered, correctly, the article 8 claim through the lens of the Immigration Rules, with a focus on the Claimant as an adult dependent relative. Her conclusion on exceptional circumstances was because of the unchallenged dependency. She referred expressly to Section 117B of the 2002 Act, but also to the unusual facts in this case. In allowing the appeal based primarily on family life, the FtT did not err in failing to consider very significant obstacles to integration in Belize, in relation to private life. While we may not necessarily have reached the same conclusion ourselves, where, as here, there has been no challenge to the clear and well-reasoned findings on dependency, we are satisfied that the FtT did not misdirect herself in law or ignore the provisions of Section 117B of the 2002 Act. In reality, the Secretary of State’s challenge amounts to a disagreement with the weight placed by the FtT on various accepted facts. The challenge discloses no error of law in the making of the FtT’s decision. The FtT’s decision therefore stands.
Notice of Decision
17. The FtT did not err in law in the making of her decision. The FtT’s decision stands.
18. The Secretary of State’s appeal is dismissed.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15th March 2023