Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/24812/2016

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 31 July 2019
On 13 August 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

Y J
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Appellant in person
For the Respondent: Ms H Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS
1. To preserve the anonymity direction deemed necessary but the First-tier Tribunal, I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellant.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge O'Brien promulgated on 18 January 2019, which dismissed the Appellant's appeal on article 8 ECHR grounds.

Background

3. The Appellant was born on 26 December 1975 and is a national of Zimbabwe. On 5 October 2015 the respondent refused the appellant's for leave to remain in the UK.

The Judge's Decision

4. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge O'Brien ("the Judge") dismissed the appeal on article 8 ECHR grounds. Grounds of appeal were lodged and on 21 March 2019 Upper Tribunal Judge Davey granted permission to appeal stating inter alia

Grounds 1 and 3

The Judge gave adequate and sufficient reasons why there was no current family life rights being exercised [D52-54} and why the respondent's decision was an interference in the appellant's "?substantial private life in the UK" and Article 8 ECHR was engaged [D55].

The fact that the appellant had sole responsibility for Sherwin Spain (date of birth 30 July 1997)(AB297), now an adult, was not the current issue, but whether family life rights were being exercised.

Sherwin, although 21 and no longer a child, has a statement of SEN until May 2015, lives at home, functions of the level of a child or very young teenager according to an ISW report dated 1 December 2018, it is arguable that the Judge's finding on the exercise of family life rights was flawed.

Given the history of this matter, if an error of law is established it plainly would be desirable for this matter to be dealt with in the Upper Tribunal,

Ground 2 and the fear of violence are not errors of law by the Judge.

The Hearing

5. (a) The appellant was present but was not represented. I discussed her application for permission to appeal and the grant of permission to appeal with her. The appellant told me that the Judge had failed to properly consider article 8 family life. She told me that the Judge gave inadequate reasons for dismissing the independent social work report. The appellant told me that if the Judge had paid full attention to the independent social work report he would have come to the conclusion that article 8 family life exists because of her son's continuing dependency upon the appellant. She told me that the Judge's findings between 49 and 54 flawed

(b) The appellant told me that the Judge's proportionality assessment was inadequate and that although the Judge gives consideration to article 8 private life, the Judge does not adequately explain his conclusion that the appellant's established article 8 private life is outweighed by the public interest in immigration control.

(c) The appellant told me that she feels that she has been unfairly treated by the respondent and spoke about the history of applications, blaming the respondent for delay in consider the case.

6. For the respondent, Ms Aboni told me that the decision does not contain errors of law. She told me that the Judge's proportionality assessment is properly carried out. She told me that the Judge concluded that article 8 family life is not established and gives adequate reasons for doing so. Mrs Aboni told me that the Judge took account of the appellant's sons needs at secondary school, but said that those needs were in the past. She told me that the Judge gives adequate reasons for finding that the appellant's son is now an independent adult. Mrs Aboni urged me to dismiss the appeal and allow the decision to stand.

Analysis

7. The appellant entered the UK as a visitor on 16 January 2002. The appellant was then granted leave to remain as a student, which expired on 24 July 2009. The appellant's son entered the UK as a visitor on 29 October 2002 when he was five years old. He was granted leave to remain as the appellant's dependent. On 30 May 2014 the appellant applied for leave to remain on article 8 grounds. That application was refused & the appellant did not have the right to appeal the decision.

8. In the meantime, the appellant's son submitted his own application for leave to remain. The appellant's son was granted leave to remain until January 2019. He now has an outstanding application for further leave to remain. The appellant submitted an application for leave to remain on article 8 grounds on 30 November 2015. That application lead to the refusal decision dated 5 October 2016 which remains the subject of this appeal.

9. This case turns largely on the relationship between the appellant and her son Sherwin. Sherwin was born in 1997 and is now 22 years old. He experienced difficulties as a child and was identified as a child with special educational needs between August 2009 and April 2015.

10. More than four years have passed since the appellant's son had special educational needs. The adaptations provided to assist him in secondary school bore fruit, because he completed his A levels and has been offered a place to study an undergraduate degree. He has not taken a place at University because, at the moment, he cannot secure funding. Instead, he now has full-time work and enjoys the company of his girlfriend.

11. An independent social work report dated 1 December 2018 was placed before the First-tier Tribunal. The Judge considered that the report between [48] and [53] before reaching his conclusion that family life within the meaning of article 8 does not exist between the appellant and her son.

12. In Kugathas v SSHD (2003) INLR 170 the Court of Appeal said that, in order to establish family life, it is necessary to show that there is a real committed or effective support or relationship between the family members and the normal emotional ties between a mother and an adult son would not, without more, be enough. In PT (Sri Lanka) v Entry Clearance Officer, Chennai [2016] EWCA Civ 612 it was held that some tribunals appeared to have read Kugathas v SSHD (2003) INLR 170 as establishing a rebuttable presumption against any relationship between an adult child and his parents or siblings being sufficient to engage Article 8. That was not correct. Kugathas required a fact-sensitive approach, and should be understood in the light of the subsequent case law summarised in Ghising (family life - adults - Gurkha policy) [2012] UKUT 160 (IAC) and Singh [2015] EWCA Civ 630. There is no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8 nor is there any requirement of exceptionality. It all depends on the facts. The love and affection between an adult and his parents or siblings do not of itself justify a finding of a family life. There has to be something more. A young adult living with his parents or siblings would normally have a family life to be respected under Article 8. A child enjoying a family life with his parents does not suddenly cease to have a family life at midnight as he turned 18 years of age. On the other hand, a young adult living independently of his parents might well not have a family life for the purposes of Article 8.

13. The Judge gives clear and sustainable reasons for finding that he cannot rely on the independent social work report. The author of the report was not available to give evidence; the appellant's son was. The Judge explains at [51] that having seen and heard the appellant's son give evidence he could not liken him to the young man described in the independent social work report. The Judge explains that the special needs identified for the appellant's son are an historical matter. There is a difference between the appellant's sons needs between 2009 - 2015 and his needs at the date of the Judge's decision.

14. Between [48] and [54] the Judge sets out adequate reasons for finding that the appellant does not establish family life within the meaning of article 8 of the 1950 convention. The Judge does not simply look at the appellant's son's age. The Judge considers all of the evidence and evaluates the evidence to determine the nature of the relationship between the appellant and her son. Having done that, the Judge finds that the nature of the relationship between two adults lacks the degree of dependency necessary to engage article 8. The Judge finds that it is a relationship of love and affection.

15. At [55] the Judge finds that the appellant establishes article 8 private life. At [58] the Judge considers paragraph 276ADE of the rules, and finds that the appellant does not establish that very significant obstacles to integration exist. From [59] to [68] the Judge takes a balance sheet approach, weighing the component parts of article 8 private life that the appellant enjoys against the public interest in immigration control. Having carried out that assessment, the Judge makes a clear finding at [68] that the respondent's decision, against which the appellant appeals, is proportionate.

16. In R (on the application of Luma Sh Khairdin) v SSHD (NIA 2002: Part 5A) IJR [2014] UKUT 00566 (IAC) it was held where the Upper Tribunal is considering whether there is an error of law in the decision of the First-tier Tribunal involving Article 8 proportionality, the task of the Upper Tribunal is confined (at that point) to deciding if the First-tier Tribunal's assessment of where to strike the balance was unlawful, according to the error of law principles set out in R (Iran) [2005] EWCA Civ 982. In R (Iran) v SSHD (2005) EWCA civ 982 the Court of Appeal said that a decision on proportionality of an Adjudicator or Immigration Judge who has properly directed himself can only be overturned on reconsideration on traditional public law grounds.

17. I have no doubt that there is a strong, reciprocated, bond of love and affection between the appellant and her son, but the Judge gives adequate reasons for finding that the relationship is a normal relationship between parent and adult child lacking the extra element of dependency which would engage article 8. The Judge gives sustainable reasons for finding that article 8 family life is not engaged in this appeal. The Judge finds that article 8 private life is established, and carries out a well-balanced proportionality exercise.

18. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.

19. A fair reading of the decision demonstrates that the Judge applied the correct test in law. The Judge carried out a holistic assessment of all of the evidence. There is nothing unfair in the procedure adopted nor in the manner in which the evidence was considered. There is nothing wrong with the Judge's fact-finding exercise. The appellant might not like the conclusion that the Judge arrived at, but that conclusion is the result of the correctly applied legal equation. The correct test in law has been applied. The decision does not contain a material error of law.
20. The decision does not contain a material error of law. The Judge's decision stands.
DECISION
21. The appeal is dismissed. The decision of the First-tier Tribunal, promulgated on 18 January 2019, stands.

Signed Date 5 August 2019
Deputy Upper Tribunal Judge Doyle