Tribunal decisions

The decision

UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Appeal No. IA/01825/2014

THE IMMIGRATION ACTS

Heard at: Birmingham
Decision Promulgated
On: 4 September 2014
On: 8 September 2014

Before

Upper Tribunal Judge Pitt

Between

Rhona Belle Raras
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Rashid instructed by Blavo & Co Solicitors
For the Respondent: Mr Mills, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of the Philippines and was born on 23 September 1984.
2. This is her appeal against the determination promulgated on 13 May 2014 of First-tier Tribunal Judge Hawden-Beal which refused the appeal under the Immigration Rules and Article 8 ECHR brought against the respondent's decision of 10 December 2013 to refuse leave.
3. The most expedient way to address the grounds here is to refer initially to two recently issued reported decisions of the Upper Tribunal.
4. The first case is VHR (unmeritorious grounds) Jamaica [2014] UKUT 00367 (IAC). The head note of the case states:
"Appeals should not be mounted on the basis of a litany of forensic criticisms of particular findings of the First Tier Tribunal, whilst ignoring the basic legal test which the appellant has to meet."
5. The second case is Nixon (permission to appeal: grounds) [2014] UKUT 00368 (IAC). The head note states:
"Whilst making due allowance where an applicant for permission to appeal to the Upper Tribunal is unrepresented and in respect of the requirement to consider obvious points arising under the Refugee Convention or ECHR (R v Secretary of State for the Home Department ex parte Robinson [1997] 3 WLR 1162), the First-tier Tribunal and the Upper Tribunal can be expected to deal brusquely and robustly with any application for permission that does not specify clearly and coherently, with appropriate particulars, the error(s) of law said to contaminate the decision under challenge. Besides placing unnecessary demands upon the judiciary, poorly compiled applications risk undermining the important value of legal certainty and causing unfairness to the other party."
6. Nixon goes on to state at [6] that:
"Given recent experience, it may be timely to formulate some general rules of practice. It is axiomatic that every application for permission to appeal to the Upper Tribunal should identify, clearly and with all necessary particulars, the error/s of law for which the moving party contends. This must be effected in terms which are recognisable and comprehensible. A properly compiled application for permission to appeal will convey at once to the Judge concerned the error/s of law said to have been committed. It should not be necessary for the permission Judge to hunt and mine in order to understand the basis and thrust of the application. While in some cases it will be possible for the permission Judge to engage in a degree of interpretation and/or making inferences for this purpose, this should never be assumed by the applicant and cannot operate as a substitute for a properly and thoroughly compiled application. These are elementary requirements and standards."
and at [10] to [12]:
"10. The application for permission to appeal in the present case did not satisfy the requirements and standards rehearsed above. It made no attempt to specify the error/s of law said to have been committed by the FtT. It employed the vague language of "erred", without more. This was inadequate and unacceptable. In principle, an error of law may take a number of forms. Inexhaustively, these include a failure to have regard to material evidence; taking into account and being influenced by immaterial evidence; inadequate reasons; unfair procedure; misunderstanding or misconstruction of the law; disregarding a relevant statutory provision; failing to give effect to a binding decision of a superior court; and irrationality. It should not be difficult for those who compile applications for permission to appeal to do so in terms which specify clearly and coherently, with appropriate particulars, the error/s of law said to contaminate the decision under challenge. Terms such as "erred" or "erred in law" or "was wrong in law" or "misdirected itself in law" are unacceptable unless accompanied by a clear specification of the error/s of law alleged and suitable brief particulars. If the application for permission fails to satisfy this standard and the Judge concerned is unable to identify with confidence the error/s of law asserted, the appropriate course will be a refusal.
11. One of the negative consequences of poorly compiled applications for permission to appeal is the inappropriate expenditure of judicial time in attempting to understand the basis and thrust of the application. This occurred in the present case, both in advance of the substantive hearing and at the hearing itself. Given the pressures on Tribunals to process large volumes of cases efficiently and expeditiously, in circumstances where there has been a notable recent increase in applications for permission to appeal to UTIAC, this is unacceptable. Furthermore, it is inimical to the overriding objective enshrined in rule 2(1) of the 2008 Rules. This provides, inter alia, that the Upper Tribunal must be enabled to process cases in a manner which avoids delay. Poorly compiled applications for permission to appeal can have other undesirable consequences. These include undermining the important value of legal certainty and unfairness to the other party. Henceforth, applicants can expect unsatisfactory applications for permission to appeal to be dealt with brusquely and robustly.
12. The nebulous terms of the application for permission to appeal in the present case are reflected in the grant of permission. The former had a contagious effect on the latter. The Judge granted permission, firstly, on the ground that the FtT had arguably erred in law in its assessment of the credibility of three particular witnesses: see the second ground of appeal reproduced in [2] above. It may be observed that it will very rarely be appropriate to grant permission to appeal on this kind of ground. Credibility assessments by first instance fact finding Tribunals will normally be challengeable only on the basis of irrationality (or, as it is sometimes inelegantly termed, perversity): Edwards - v - Bairstow [1956] AC 14. Judges should be very slow to grant permission on such a ground. The second striking feature of the grant of permission is the statement:
"It is arguable that the Judge gave inadequate reasons for finding that the Appellant lived with his wife in a subsisting relationship."
There was no contention in the application for permission that the FtT's determination was inadequately reasoned. Thus there was a mismatch between application and grant. It seems likely that the permission Judge was struggling to comprehend the application and was driven to this formulation in consequence. Finally, as regards the first ground of appeal, also quoted in [2] above, it is abundantly clear from the determination that the Judge had considered the emails from the local authority but, on perfectly rational and clearly explained grounds, declined to accord them any weight."
7. Those comments appeared to me to be applicable to the grounds and grant of permission here. The Immigration Judge took into account the relevant evidence and was manifestly entitled to find that the appellant did not qualify for leave under Article 8 ECHR. She has been in the UK only since 2009 in a limited capacity. She came here as an adult having spent most of her life apart from her birth mother and half-sister. She has a number of immediate relatives in the Philippines, including the sister with whom she grew up. The First-tier Tribunal was correct to point out at [16] that the appellant worked in the Philippines as a nurse before coming to the UK so it was reasonable to expect her to be able to find work there again. The judge was equally correct to identify at [17] that the appellant's mother brought up her half-sister for most of her life without any input from the appellant and could have expected to have to continue to care for the child alone when the appellant's studies ended.
8. The grounds do not come close to identifying that the approach taken by the First-tier Tribunal was perverse or relied on immaterial matters or failed to take into account material ones. It is clear reading the determination as a whole that the First-tier Tribunal accepted that the appellant had a private life in the UK and a family life of sorts with her mother and sister. The determination identifies the latter in terms at [18]. The judge sets out in clear and reasoned terms why the appellant's family relationships will not be interfered with disproportionately by the decision. Her private life was clearly limited and could not entitle her to leave under Article 8; see Patel and others v SSHD [2013] UKSC 72 at paragraph 57. The decision was manifestly not made on the basis of the comment at [19]. The consideration at [15] to [20] covers the factors material to a second stage Article 8 assessment and finds against the appellant. The grounds are merely a disagreement dressed up as an error of law challenge.
9. I must admit to being somewhat perplexed by the grant of permission to appeal. I cannot parse the first paragraph in a way that shows what arguable error of law arose in relation to the case of Gulshan (Article 8 - new rules - correct approach) [2013] UKUT 00640. The case law has moved on in that regard in any event, following MM and Others v SSHD [2013] EWHC 1900 (Admin). The second paragraph ignores the question of materiality and the finding of a family life at [18]. The second paragraph reflects the vagueness and lack of any specific error of law challenge of the grounds of appeal.
10. The grounds of appeal do not show an error on a point of law in the decision of the First-tier Tribunal.
DECISION
11. The decision of the First-tier Tribunal does not contain an error on a point of law and shall stand.

Signed: Date: 4 September 2014
Upper Tribunal Judge Pitt