Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA023332015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th June 2016
On 14th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

LINA VICTORIN BELASSE
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss R Uko, Counsel, instructed by Joseph Mynah & Co
For the Respondent: Miss N Willocks-Briscoe, Home Office Presenting Officer

DECISION AND REASONS

1. This is the Secretary of State's appeal; however for ease of comprehension, I will refer to the parties according to their status before the First-tier Tribunal.
2. The Respondent appeals with permission against the decision of First-tier Tribunal Judge Wylie allowing the Appellant's appeal against the Respondent's decision to remove her under section 10 of the Immigration and Asylum Act 1999.
3. Permission to appeal was granted by First-tier Tribunal Judge Hollingworth. The grounds upon which permission was granted may be summarised as follows.
(i) It is arguable that the judge erred in relation to the question of exceptional circumstances granting leave to remain outside the Rules.

Error of Law
4. At the close of submissions I indicated that I would reserve my decision which I shall now give. I find that there is no error of law in the First-tier Tribunal's decision. My reasons for so finding are as follows.
5. In relation to the consideration of exceptional circumstances, the Respondent's complaint as encapsulated in her grounds, is in essence that "The fact that an Appellant has a court case ongoing in the United Kingdom cannot be an exceptional circumstance". In my view this complaint in of itself displays the nature of the ground which is a disagreement with the decision of the First-tier Tribunal. The nature of the exceptional circumstances criterion, as supported by higher court authority (see MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, for example), is that if there are matters which do not fall within the purview of the Immigration Rules they are for all intents and purposes exceptional, and having not enjoyed consideration under the Immigration Rules, are matters which naturally fall for consideration outside of those Rules otherwise the decision of the Secretary of State solely taken under the Rules could render a decision non-compliant with Section 6 of the Human Rights Act 1998.
6. In this determination the judge has made particular findings concerning the Appellant's private life outside of the Rules from paragraphs 26 to 29 and the circumstances outlined at paragraph 28 are typical of matters which would not normally fall for consideration under the Immigration Rules and therefore required consideration outside of them under the exceptional circumstances criterion which the judge has righty pursued.
7. As to the question of what forms an exceptional circumstance, I find that the judge reached findings upon the evidence that were open to her and which she was entitled to reach. It might be that another judge would not have reached the same conclusion on these facts; however the findings are neither perverse nor irrational in a Wednesbury sense for that reason. In that respect, I remind myself of the dicta of Baroness Hale in Secretary of State for the Home Department v AH (Sudan) & Ors [2007] UKHL 48, wherein the following was stated inter alia at [30]:
"... This is an expert tribunal charged with administering a complex area of law in challenging circumstances ... and they alone are the judges of the facts. It is not enough that their decision on these facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirection simply because they might have reached a different conclusion on the facts or express themselves differently."
8. Regarding Judge Wylie's consideration on the exceptional circumstances, they do not reach the level of perversity or irrationality that would be necessary for one to find a material error of law. Consequently that ground is not made out.
9. Turning to the remaining ground that was not mentioned in the grant of permission but which I consider at any rate, the Secretary of State generally complains that the judge has allowed the appeal without giving consideration to Section 117B of the 2002 Act. In my view the judge gives due regard to the statutory considerations at paragraph 26 of the determination. This is plainly so given that the judge states in terms that she has "had regard" to Section 117A and 117B of the 2002 Act and that she also has taken into account the consideration that the maintenance of effective immigration control is in the public interest, and furthermore that the family and private life of the Appellant were established whilst she was present in the UK unlawfully. Consequently to my mind the judge has given the due regard required of her to the statutory considerations under Section 117B of the 2002 Act.
10. Finally the Secretary of State attempted to further argue that there was an inadequacy of reasoning in the determination. I made clear to the Presenting Officer that the Grounds of Appeal to the First-tier Tribunal upon which permission was granted, did not complain of an inadequacy of reasoning but went towards the Article 8 assessment and the consideration of 117B of the 2002 Act. I therefore informed the Presenting Officer in clear terms that if there were to be any consideration of a reasons challenge, the Secretary of State would be required to make an application seeking permission to appeal out of time and an application for an extension of time for that ground to be considered with explanation for the delay in seeking permission. No application was forthcoming and consequently I have not had cause to consider any complaint concerning the adequacy of reasons given in the determination. At any rate, in my view the judge has given sufficient reasons for her determination and has clearly formed a view that was open to her based upon the evidence heard and seen by her firsthand and having formed a view as to the proportionality of the scenario as she was entitled to do. This was particularly so given that the Secretary of State chose not to attend the hearing and consequently there was no cross-examination to contradict the Appellant's oral evidence nor any submissions made that could counteract the Appellant's evidence heard by the judge.
11. Consequently I do not find that there is an error of law in the determination such that it should be set aside.

Notice of Decision
12. The appeal of the First-tier Tribunal is affirmed and the Respondent's appeal is dismissed.

Signed Date 10 June 2016

Deputy Upper Tribunal Judge Saini