Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11945/2018

THE IMMIGRATION ACTS

Heard at Manchester Civil Justice Centre
Decision & Reasons Promulgated
On 8th March 2019
On 5th April 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Mrs H C
(ANONYMITY direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr F Aziz (Counsel)
For the Respondent: Mr A McVeety (Senior HOPO)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Brookfield, promulgated on 30th July 2018, following a hearing at Manchester on 23rd July 2018. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a citizen of China, a female, and was born on 24th April 1942. She is 76 years of age. She appealed against the decision of the Respondent dated 18th May 2018, refusing her application for leave to remain in the UK on the basis of her family life with a Mr [W], his wife, Mrs [C], and their minor son, whom she looks after, ever since he was born in 2003. The decision appealed against is dated 18th May 2018.
The Appellant's Claim
3. The essence of the Appellant's claim is that she left China in 1999, when she was aged 57 years, but she is a 76 year old lady now, does not have the support of her husband who left her over ten years ago and returned back to China because he owed people money there, and at the same time has a family relationship with Mr [W] and his family, looking after their son who is now 15 years of age. She has nothing to return back to in China.
The Judge's Findings
4. At the hearing before Judge Brookfield, the Appellant's representative relied only upon paragraph 276ADE of the Immigration Rules and Article 8 of the ECHR. That being so, the judge observed that the Appellant did not have a partner or any children in the UK. She did not meet the requirements for leave to remain in the UK as a partner of a person living and settled in this country or as a parent of a child living in this country. The judge went on to consider the Appellant's claim to remain in this country on the basis of her private life. She observed that the Appellant had not lived in the UK for a period of twenty years or more. She had lived the majority of her life in China, having come to this country at the age of 57 years, so that her formative years had been lived in China. She spoke Cantonese. She had familiarity with the culture and customs of China. She would enjoy all the benefits of citizenship on return to China. On the other hand, she had been able to live and work, and make friends in the UK. However, she did not speak any English.
5. Relying upon the case of Treebhawon [2017] UKUT 00013, the judge held that "mere hardship, mere difficulty, mere hurdles, mere upheaval, mere inconvenience, even where multiplied, are unlikely to satisfy the test of very significant obstacles". As for the Appellant's claim under Article 8, she held that Article 8 was not engaged in relation to the Appellant's family life, although she clearly had established private life in the UK, and bearing in mind Section 117B of the 2002 Act, the public interest in the maintenance of immigration control, meant that she could not succeed.
6. The appeal was dismissed.
Grounds of Application
7. The grounds of application state that, given that the Appellant had lived in the UK for eighteen years, and that it was accepted that the Appellant had established a private life in this country, the decision under Article 8 was disproportionate, because the Appellant had befriended Mr [W] and his family, and was taking care of their son, who was now 14 years of age. Second, her age was a relevant factor, in that now she was 76 years of age, and she no longer had the support of her husband who had left her over ten years ago, because he owed people money in China. In her witness statement (paragraph 17), the Appellant had explained that she did not have an ID card in China, has never had a passport, and would not be able to apply for any social benefit or a pension in China, if she were to be returned. Finally, she had also explained (paragraph 24 of her witness statement) that her home had been destroyed in flooding, and as a 76 year old, she would have no home to return to in China now.
8. Permission to appeal was granted on 27th November 2018 by the Upper Tribunal on the basis that it was arguable that the judge failed to properly consider the evidence set out in the grounds of application in the assessment of the Appellant's appeal under Article 8 of the ECHR.
9. On 18th December 2018, a Rule 24 response was entered, to the effect that the judge had considered all the relevant factors, and the claimed obstacles to reintegration, and had properly concluded that the Appellant could not succeed.
Submissions
10. At the hearing before me on 8th March 2019, Mr Aziz, appearing on behalf of the Appellant, directed my attention to paragraph 8(iii), and argued that the judge's conclusion here that the Appellant had remained in China for 57 years of her life, before coming to the UK in 1999, had spent the formative years there, was conversant with Cantonese culture, and could return there, overlooked the fact that she had no passport, no ID documents, was elderly, no home left in China, and could not return there to access social benefits in any way whatsoever. Her husband had left her to return back to China and she was no longer in contact with him.
11. For his part, Mr McVeety submitted that this was nothing more than a disagreement with the judge's findings. The Appellant has benefited by remaining in this country. The evidence showed that she had been accessing medical care in this country (see page 10 of the Appellant's bundle), without any trace of any evidence that she had paid for such medical treatment. She was fairly independent. There was no evidence that she had even tried to get a Chinese passport in this country. China was one of the most heavily documented countries in the world. It was inconceivable that she would not be able to get any ID documents. She was not fully integrated into British culture. She did not have a family life in this country. She was in good health. The decision of the judge could not be faulted.
12. In reply, Mr Aziz drew my attention to the supplementary bundle, dated 4th March 2019 (of eighteen pages), which showed that the Appellant was not even registered with a GP in this country, so that any treatment that she would have had, would have been privately paid for.
13. I note that the supplementary bundle also contains additional medical reports from Dr R C Patterson (dated 12th February 2019), and an earlier report (dated 15th August 2018). The bundle also contains photographs at the end (pages 11 to 18) of the Appellant with the boy of whom she has care, and has had care ever since he was born, throughout his adolescent years.
Error of Law
14. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law. My reasons are as follows. First, this is a case where the Appellant has no passport, no ID documents, and no home left in China to return to. That condition, in which the Appellant finds herself, has to be evaluated in the context of the Court of Appeal decision in Kamara [2016] EWCA Civ 813, where it was explained that the concept of "integration" is one which "is a broad one" because "it is not confined to the mere ability to find a job or sustain life while living in the other country".
15. Instead, the term 'integration' is one which
"calls for a broad evaluative judgment to be made as to whether the individual would be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there" (paragraph 4).
16. The determination does not demonstrate enough by way of reasons that the Appellant would have "a capacity to participate" in life in China, given the absence of the essential documentation, which she should have, but does not have. At present, it does appear that she would face "very significant obstacles" given the facts as presently stated.

17. Second, the judge has failed to engage with the impact of the removal of the Appellant on the family that she is living with, Mr [W], and in particular his son, who gave evidence at the hearing, and who the Appellant has been looking after for the last fourteen years, ever since he was born: see Beoku-Betts [2008] UKHL 39. The question of disproportionately or otherwise has to be seen in the context which reflected other family members who are to be potentially regarded as victims. In this case, the judge has held that the Appellant enjoys no family life with Mr [W] and his family. That question may in itself require revisiting. But in any event, the impact upon the private life of the remaining family as a whole, by the Appellant's removal, is a matter which does engage the question as to whether they are also potentially to be regarded as victims, in the light of Beoku-Betts.
Notice of Decision
18. The decision of the First-tier Tribunal involved the making of an error on a point of law. I set aside the decision of the First-tier Tribunal. I re-make the decision as follows. This appeal is remitted back to the First-tier Tribunal to be determined by a judge other than Judge Brookfield, pursuant to Practice Statement 7.2(b) of the Practice Directions.
19. An anonymity Order is made.
20. This appeal is allowed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 3rd April 2019

Deputy Upper Tribunal Judge Juss