Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03853/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 January 2017
On 6 February 2017

Before

THE HONOURABLE MR JUSTICE SUPPERSTONE
DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

Mrs toritse fakeye
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Walsh
For the Respondent: Mr Melvin

DECISION AND REASONS
1. The appellant is a citizen of Nigeria born on 26 September 1976. She applied to remain in the UK with her husband Mr Michael Fakeye a British citizen on 9 June 2015. Her application was refused by a decision made on 28 July 2015 and she appealed against that decision. Her appeal was dismissed by First-tier Tribunal Judge Reid in a decision promulgated on 28 July 2016. She now appeals to this Tribunal with permission granted by First-tier Tribunal Judge Osborne on 22 November 2016. The facts are these.
2. The appellant had married her husband on 11 December 2010 in Lagos. She had made an unsuccessful application for entry clearance to join him in the UK which was refused by a decision dated 8 September 2012. She then attempted to enter the UK as a visitor on 7 December 2012 and had been given temporary admission following a decision to cancel her leave as a visitor. That visitor decision was appealed and the decision was upheld by Judge Denson in a decision dated 13 May 2013.
3. The appellant then made a further application on 16 October 2013 to remain on the basis of her life in the UK which was refused by a decision dated 31 March 2014. In the decision dated 28 July 2015 the Secretary of State accepted that the appellant has a genuine and subsisting relationship with her British partner. However whilst it is acknowledged that her partner has lived in the UK all his life and is in employment here, this does not mean that they are unable to live together in Nigeria. The appellant did not meet the requirements of Appendix FM R-LTRP1.1.(d) nor did she qualify for leave under the ten year route. In refusing her application consideration was given to her private life under Article 8 which from 9 July 2012 falls under paragraph 276ADE(1) of the Rules. However she did not meet the requirements of the Rules.
4. Finally the Secretary of State considered whether the particular circumstances set out in her application constituted exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 ECHR, might warrant a grant of leave to remain in the UK outside the requirements within the Immigration Rules. In support of her claim the Secretary of State noted that it is stated in her solicitor's letter that during the course of residing in the UK the appellant met up with her ex-husband and her daughter whom she had not seen since her ex-husband took her daughter away from her. She was reunited with her daughter but unfortunately her daughter passed away after a brief illness on 23 July 2013. The appellant stated that she had visited her daughter's grave every month in the UK since then but that it would be impossible for her to continue to do this should she be returned to Nigeria. The Secretary of State took the view that this did not warrant a grant of leave outside the Rules as the appellant could apply in the future as a visitor and return to visit her daughter's grave.
5. First-tier Tribunal Judge Reid then noted in the reasons promulgated on 28 July that the respondent was represented by a Presenting Officer but the appellant was not represented and did not attend. The hearing proceeded in the absence of the appellant pursuant to Rule 28 of the Tribunal Rules of 2014 in the interests of justice. An application on behalf of the appellant to change the hearing to a paper hearing had been made on 15 July but refused by letter from the Tribunal dated 18 July. A telephone call was made to the appellant's representative at 9.55am on 20 July and the Tribunal was informed that no-one would be attending the hearing. Subsequent to the hearing at 11.51am a fax was received from the appellant's representative. There appeared to have been some confusion but it was confirmed in any event that the appellant wanted a paper hearing and so would not have attended on 20 July or on any other date in any event.
6. Judge Reid identified the issue before the Tribunal as being whether by virtue of Section 6 of the HRA 1998 there was a breach of any of the appellant's rights under the ECHR and in particular as regards the claimed breach of Article 8. The judge's conclusions are set out at paragraphs 39 to 40 and they read as follows:
"39. I conclude that the decision does not breach Article 8 as regards the appellant's family life or private life in the UK taking into account the above findings. Although Article 8 is engaged as regards her relationship with her husband the decision is proportionate taking into account the maintenance of immigration control (Section 117B(1) Nationality Immigration and Asylum Act 2002), the public interest in financial independence (Section (117B(3)) and the fact that her private life was established whilst her status was precarious (Section 117B(5)). Although there has been a longer period of residence in the UK with her husband than had applied when Judge Denson found the visitor decision proportionate in 2013, I conclude that this longer period does not justify a departure from Judge Denson's finding in 2013 that the decision was proportionate as regards both family and private life in the UK.
40. I have weighed in the balance the fact that a part of the appellant's life in the UK is the fact her daughter is buried here and whilst this is very sad and the decision removes the possibility of regular visits, it does not tip the decision over into no longer being proportionate. In coming to this conclusion I have taken into account that the law recognises the importance of the ability to enter as a visitor to visit a family member's grave depending on the circumstances (Abbasi and Another (visits - bereavement - Article 8) [2015] UKUT 463 (IAC))."
Accordingly the judge dismissed the appeal.
7. Granting permission to appeal First-tier Tribunal Judge Osborne summarised the grounds of appeal at paragraph 2 of his reasons. He noted that the appellant contended that she was not given the opportunity of commenting upon new documents A to E provided by the respondent at the hearing. Copies were not sent to her representatives. The judge, she contended, should not have accepted that evidence without an adjournment. Further the appellant contended that the judge arguably erred when he found that there are no insurmountable obstacles to family life outside the UK. Judge Osborne in his reasons expressed the view that it was arguable that in permitting the respondent to adduce new evidence in the form of documents at A to E and in failing to ensure that the appellant had the opportunity of considering those documents, the judge erred in law and/or caused the appellant to suffer a procedural unfairness. That being so he considered all the issues raised in the grounds to be arguable.
8. Mr Walsh who appears on behalf of the appellant has in his oral submissions focused on two points. First, in relation to documents A to E, the new documents, he contends that the appellant would not know that the judge would rely on the previous decision of Judge Denson; and second, Mr Walsh mounts a perversity challenge to the findings in relation to whether there were insurmountable obstacles to the appellant's ability to visit her daughter's grave and whether family life could be pursued outside the UK.
9. We accept that there was a procedural irregularity in that the respondent's bundle of documents was supplemented by further documents at the hearing and to that extent the appellant and her representatives did not have an opportunity to consider those documents and their relevance to the appeal. However we are satisfied that that irregularity had no material bearing on the outcome of the appeal. Although Judge Reid referred to the judgment of Judge Denson in relation to his assessment of proportionality, it is clear that Judge Reid reached her own conclusion on proportionality. We are further satisfied that there is no basis for the perversity challenge to the judge's findings as to there are insurmountable obstacles to family life outside the UK in the light of the evidence before her.
10. Finally we would observe that the judge dealt in our view in a compassionate way with the sad circumstances relating to the appellant's child. For the reasons we have given we find there is no material error of law in this case and accordingly this appeal fails.

No anonymity direction is made.

Signed Date

Mr Justice Supperstone

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Mr Justice Supperstone