Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05587/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision and reasons promulgated
On 12th November 2021
On 24th January 2022

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

PAUL ONYANGO OTIENO ONGINJO
(anonymity direction NOT MADE)

Respondent

Representation:

For the Appellant: Mr T Lindsay, Home Office Presenting Officer
For the Respondent: Mr K Mukherjee, instructed by Davjunnel Solicitors

DECISION AND REASONS

1. Although this is an appeal by the Secretary of State, I shall refer to the parties as in the First-tier Tribunal. The Appellant is a national of Kenya born on 17 May 1980. On 16 November 2021, I found there was an error of law in the decision of the First-tier Tribunal dated 26 May 2021, allowing the appeal on human rights grounds, and I set the decision aside.

2. It was agreed by the parties that there was no dispute on the facts and a further hearing was not necessary. Further written submissions were submitted by the Respondent on 2 December 2021 and by the Appellant on 8 December 2021.

Factual findings

3. The Appellant came to the UK as a student in 2008 and has remained here in that capacity since then. He remained without leave from 12 October 2011 to 13 May 2012 because there was a problem obtaining relevant documentation for his application for further student leave made at that time. The Appellant made an in time application for indefinite leave to remain on 7 February 2020 on grounds of long residence. It is accepted the Appellant cannot satisfy paragraphs 276B, 276ADE or Appendix FM of the Immigration Rules.

4. The following findings of fact made by the First-tier Tribunal were preserved and are not in dispute.
(i) The Appellant speaks English and will not be dependent on the public purse.
(ii) He has no convictions or cautions recorded against him.
(iii) He has close ties with his brother's family.
(iv) He has a partner in the UK and they plan to marry.
(v) He has a particularly close bond with his partner's child who sees him as a father figure and relied upon him for support during his GCSE exams.
(vi) The Appellant has a genuine and subsisting relationship with his partner and her child.
(vii) He has undertaken significant work for the benefit of the community as a support youth worker, sports coach and a qualified football coach. He is also a volunteer at the church.
(viii) He is a qualified social worker and has a job offer with Buckinghamshire County
Council as a social worker (Children's Academy).
(ix) His profession is in the Home Office skilled worker shortage occupational list for
healthcare and education.
(x) His PhD research has the potential to enhance social work practice through improving understanding of how social media is used in child and family work and will assist social workers in the future.
(xi) The Appellant has been working closely with the British Association of Social Workers and was invited in April 2020 to deliver the findings of his PhD.
(xii) The Appellant is highly qualified in social work and will be an asset to the social work profession.
(xiii) Returning A to Kenya would mean that he would not be able to complete his PhD or take up his job offer which would have a detrimental effect upon social work in the UK.

5. Since the hearing before the First-tier Tribunal the Appellant has successfully defended his PhD Thesis. There is a letter from Dr Louise Grant dated 26 October 2021 which states that the Appellant ‘could contribute to address the skills shortage in social work in the UK’ and ‘his research will be a significant contribution to current social work practice nationally, especially safeguarding and child protection in this era of a digitalised society.’

Respondent’s written submissions

6. Mr Lindsay submits that, pursuant to section 117B(1) of the Nationality, Immigration and Asylum Act 2002 [NIAA 2002], substantial weight should be attached to the public interest because the Appellant cannot satisfy the immigration rules. Little weight should be attached to the Appellant’s private life, under section 117B(5) NIAA 2002, because his immigration status has been precarious since he entered the UK in 2008.

7. Mr Lindsay submits the Appellant’s family life in the UK does not engage Article 8 notwithstanding it is accepted the Appellant has a partner, whom he plans to marry in the future, and a particularly close bond with his partner’s child who sees him as a father figure. It is submitted the Appellant does not have a genuine and subsisting relationship with a qualifying child and section 117B(6) does not apply. Further or alternatively, if family life exists, it attracts little weight because the Appellant was aware when developing his ties in the UK that he should have no expectation of remaining in the UK indefinitely.

8. The Respondent accepts that the Appellant’s work as a qualified social worker, and the research he has conducted in relation to his PhD thesis, is capable of providing a significant benefit to UK society. The importance of safeguarding and child protection is not in dispute. Mr Lindsay submits the Appellant has not demonstrated that the dismissal of his appeal will lead to an irreplaceable loss to the UK community following Thakrar (Cart JR; Art 8: value to community) [2018] UKUT 336 (IAC). The weight to be attached to the public interest in effective immigration controls should not be reduced. In particular, the fact that the Appellant’s profession may be listed as a current shortage occupation in the UK cannot be a significant factor in the Article 8 assessment, as this would undermine the legislative scheme under Part 5A NIAA 2002 Act as well as the Respondent’s policy as stated in the immigration rules.

9. Mr Lindsay submits that if the Appellant considers he may meet the requirements for entry clearance to the UK under any of the potentially available routes, then it is open to him to return to Kenya in order to make the appropriate application. The Respondent submits that it would not be disproportionate in all the circumstances to expect the Appellant to take this course: Younas (section 117B(6); Chikwamba; Zambrano) [2020] UKUT 129 (IAC).

Appellant’s written submissions

10. Mr Mukherjee submits that on the undisputed facts, the Appellant has established family life in the UK even if he does not have a parental relationship with his partner’s son. Family life exists notwithstanding the Appellant does not live with his partner and her son because of his religious beliefs. Their intentions, emotional bonds and dependency were sufficient to engage Article 8. The Appellant’s family life is deserving of weight which is not significantly reduced because his immigration status was precarious. The balancing of interests requires consideration of the Appellant’s circumstances, immigration status and history.

11. The Appellant has a current and time-limited job offer in the Home Office skilled worker shortage occupation list and whose research has the potential to benefit social work practice in the UK. Mr Mukherjee submits the Appellant’s successful pursuance of a social work career in the protection and safeguarding of vulnerable children since his arrival in August 2008, must be similarly seen to be in the public interest and in the interests of the economic well-being of the United Kingdom. This is not the subjective decision-making prohibited by Thakrar, but an application of the objective decision-making, required by it. Where the Respondent accepts, through her policy, that it would be of benefit to the UK to attract those with a particular skill set, such as social workers, then the courts should view it as a significant positive factor in the balancing exercise.

12. Mr Mukherjee submits that it is difficult to see how the legislative scheme under Part 5A NIAA 2002 would be undermined by considering the Appellant’s profession as a significant positive factor in the Article 8 assessment. Part 5A recognises that the 'maintenance of immigration control is in the public interest'. It lists a number of factors which courts are bound to take into account in assessing the weight to be attached to the public interest, including those who can bring economic betterment to the UK. Given that such a list cannot be exhaustive, courts should extend the rationale of those factors, in this case to a migrant whose very particular skills set is needed by the UK and which by his removal, could be lost to it. There is nothing in that exercise that undermines effective immigration control, indeed the recognition of highly skilled and sought-after migrants, is the core of the Respondent’s immigration policy.

13. In his written submissions Mr Mukherjee stated, “Under section 117B(1), it is submitted that a maximum 7 month period of overstaying, found to be a caused by an administrative mix-up, without which [the Appellant] would have qualified for settlement under 10 yearlong (sic) residence, cannot properly undermine effective immigration control. This is a fact that could be said to be recognised by [the Respondent] through subsequent grants of leave to remain as a student.” He then addressed the factors in section 117B and submitted the Appellant’s relationship with his partner and her son was entered into at a time that he had been here almost completely lawfully for a decade.

14. Mr Mukherjee submitted the Appellant’s voluntary work was a benefit to the community and significant weight should be attached to his acknowledged skills set. Requiring the Appellant to return to Kenya undermined immigration control. The refusal of leave to remain was disproportionate and breached Article 8.

Conclusions and reasons

15. I have considered Mr Mukherjee’s written submissions in full and have attempted to summarise the most salient points. His submission set out at [13] above is a ‘near miss’ argument and I am not persuaded by it. The remainder of his written submission on section 117B at [12] onwards, in my view, do not demonstrate an exceptional case under paragraph GEN 3.2 of the immigration rules.

16. The Appellant has not made an application under the points based system and it is open to him to do so. The Appellant applied for indefinite leave to remain on grounds of long residence. It is accepted he cannot satisfy the requirements of the immigration rules. The Appellant has to show there are exceptional circumstances such that the refusal of leave to remain would result in unjustifiably harsh consequences for the Appellant, his partner or her son. On the undisputed facts, that threshold has not been met.

17. I am persuaded by the Mr Lindsay’s submissions. The Appellant cannot satisfy the immigration rules and I attach significant weight to the public interest. On the evidence before me, I am not satisfied that the Appellant’s removal would lead to an irreplaceable loss to the community of the UK or a significant element of it.

18. I find the Appellant’s family life is very limited and little weight should be attached to the Appellant’s private life under section 117B(5). The following factors weigh in the Appellant’s favour: he speaks English, he is financially independent, his profession is on the occupation shortage list and he has undertaken other work for the benefit of the community.

19. However, these matters are insufficient to outweigh the weight to be attached to the public interest in maintaining immigration control. On the facts, the refusal of leave to remain was proportionate. The Appellant’s appeal is dismissed on human rights grounds.

Notice of decision

The Appellant’s appeal is dismissed on human rights grounds.

J Frances
Signed Date: 21 December 2021
Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD

As I have dismissed the appeal I make no fee award.

J Frances

Signed Date: 21 December 2021
Upper Tribunal Judge Frances

_____________________________________________________________

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email