Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number
UI-2021-001276 (HU/51225/2020)
UI-2021-001277 (HU/51226/2020)
[IA/02800/2020 & IA/00111/2021]

THE IMMIGRATION ACTS

Heard at George House, Edinburgh
Decision & Reasons Promulgated
On the 5 May 2022
On the 11 July 2022

Before

UT JUDGE MACLEMAN & UT JUDGE RINTOUL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

YUIRI DUDEK GROENAWALD & GEORGE GROENAWALD
Respondents

For the Appellant: Mr A Mullen, Senior Home Office Presenting Officer
For the Respondents: Ms E Osei-Agyemang, of Immigration Advice Services Ltd, Oldham

DETERMINATION AND REASONS
1. The parties are as above, but the rest of this decision refers to them as they were in the FtT.
2. The SSHD appeals against the decision of FtT Judge Prudham, dated 26 June 2021, allowing the appellants’ appeals.
3. Permission was granted by Judge Martin on 18 November 2021 on the view that arguably Judge Prudham gave inadequate reasons “for allowing the appeal outside the rules when the appellants are both adults, have been in the UK for only 2 years having lived with their grandmother and father in Botswana for 3 years and no proper assessment of any medical evidence in relation to the sponsor’s mental health”.
4. The appellants are citizens of Botswana, born on 2 December 2001 and on 1 April 2003. They lived in Botswana until they applied in August 2009 for visas as dependent children, which were granted until 11 February 2012. They were granted further leave until 27 May 2015, and returned to Botswana in or around December 2016. They lived again in Botswana until they re-entered the UK on 22 December 2019 on visit visas, valid until 22 June 2020. On 15 June 2020, they applied for leave to remain based on their family and private life.
5. The appellants’ mother is a citizen of Botswana, living at present in the UK. She accompanied her children to Botswana in December 2016 and returned here at some time in 2017. The appellants’ father is a citizen and resident of Botswana. (While in Botswana, the appellants lived variously with their grandmother and with their father, although he is said to have taken responsibility only unwillingly).
6. The respondent refused the appellants’ applications by letters dated 23 December 2020, giving similar reasons, apart from noting that at that time the first appellant was then an adult and the second was a child.
7. The appellants have not disputed that the SSHD’s decisions approach the case by reference to the correct legal framework. The FtT appears to have lost sight of that. We find it useful to summarise the decisions and to set out the most relevant legal considerations.
8. The decisions firstly narrate in terms of family life that the appellants are not eligible to apply under appendix FM of the rules “because your parent [i.e., mother] does not have a partner who is British, settled or in the UK with refugee or HP leave, and because you live as part of a family unit with your mother and brother. We have therefore considered your claim under the private life route only.”
9. The next point of reference is paragraph 276ADE of the immigration rules:
(1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.
10. The appellants may qualify only in terms of sub-paragraph (vi).
11. The respondent noted that the appellants lived in Botswana in their early years, returned for several years, and had been away again for only a year, and therefore held that “… you will have retained significant knowledge of the life, language and culture and would not face significant obstacles to re-integrating”.
12. The decisions next turn to GEN.3.2 and 3.3 of appendix FM, the relevant parts of which are:
GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.
(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.
…
GEN.3.3.(1) In considering an application for entry clearance or leave to enter or remain where paragraph GEN.3.1. or GEN.3.2. applies, the decision-maker must take into account, as a primary consideration, the best interests of any relevant child.
13. The decisions note that the appellants had said that their mother has a mental illness; it would be a breach of family life to refuse their applications; they cannot stay in Botswana because their grandmother is old and frail; and their mother has sole responsibility for them. However, the decisions are reached on the view that the appellants have not been in the same country as their mother for 3 of the last 4 years; have been able to “grow and thrive with family members” in Botswana; their mother’s mental problems centre around not being with her children, but she is free and able to return to them in Botswana; her limited leave was due to expire in April 2021; they could return to Botswana as a family unit; and any disruption to private life would be proportionate.
14. The decisions next refer to section 117B of the 2002 Act:
Article 8: public interest considerations applicable in all cases
(1)  The maintenance of effective immigration controls is in the public interest.
(2)  It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a)  are less of a burden on taxpayers, and
(b)  are better able to integrate into society.
(3)  It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a)  are not a burden on taxpayers, and
(b)  are better able to integrate into society.
(4)  Little weight should be given to—
(a)  a private life, or
(b)  a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5)  Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6)  In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a)  the person has a genuine and subsisting parental relationship with a qualifying child, and
(b)  it would not be reasonable to expect the child to leave the United Kingdom.
15. The decisions do not proceed to detailed consideration of section 117B. They end by saying that the appellants do not qualify for leave under the private life rules, “or outside the rules on the basis of exceptional circumstances”.
16. Judge Prudham at [19] says that the appellants “ who are young adults living with the sponsor, give the sponsor support and commitment that goes beyond normal emotional ties and so I accept that article 8 has been engaged.”
17. Although Judge Prudham does not say so expressly, he appears to mean that the evidence established that family life for article 8 purposes existed among mother and her two children, although all were adults at the time of decision, and that the case involved not only private but also family life considerations.
18. The SSHD’s grounds are all headed as “failure to give adequate reasoning”. They do not specifically challenge the implicit finding on family life.
19. We consider that the finding that family life existed was open to the Judge. It should have been more clearly expressed, but the reasons given are adequate. That finding, based on circumstances as they then existed, will be the starting point in any further decision-making.
20. In his next paragraph, [20], Judge Prudham cites the 5 Razgar tests. At [21] he says that the issue is proportionality, and at [22] directs himself to balance the impact on family life against the public interest in refusal.
21. We consider that at that point the Judge departs from the tests established by statute and the rules, and embarks on a broad proportionality exercise as if unrestricted by that structure. He also loses sight of a central part of the respondent’s decision.
22. At [23] the Judge finds that return to Botswana would have “harsh consequences” for the appellants based on their “limited experience of life in Botswana” and their “lack of experience of work or living independently”.
23. The SSHD’s grounds say that the appellants are both adults with an expectation of living an independent life in a country in which they were living 2 years ago.
24. We find the reasoning on the appellants’ return to Botswana inadequate to support the outcome of the appeals in terms of private life. The Judge overlooks that the principal criterion is “very significant obstacles to integration”. His decision founds on nothing which reaches that level. He does not consider whether the appellants would be “insiders” or “outsiders” in Botswana.
25. At [24] the Judge explains the outcome in terms of the significant impact on the mental health of the sponsor and on one of her “possible protective factors … being with her children”.
26. The SSHD’s grounds on this point state that there was no recent evidence to show that deterioration in health was likely if the appellants were to leave, and that it would be open to remain in contact through “modern means of communication” and by visiting.
27. “Modern means of communication”, even among adults, are a poor substitute for personal proximity. Such communication has very little bearing on whether separation of family members is justified. We accept that visits would be a possibility.
28. Judge do not have deal with every aspect of the evidence before them; but the grounds, as anticipated in the grant of permission, disclose an absence of an adequate basis for the findings on mental health at [24].
29. More generally, the grounds and submissions for the SSHD show that the Judge overlooked the first point in the decisions appealed against, which was that there was nothing to prevent the appellants and their mother carrying on their family life in Botswana. The Judge leapt from his finding that family life was constituted to an unstated acceptance that the respondent’s decisions imposed a separation.
30. In summary, the grounds and submissions for the SSHD disclose material error in these respects:
(i) no adequate reasoning for the finding on the private life of the appellants;
(ii) no adequate reasoning for the finding on the mental health of the sponsor; and
(iii) basing the decision on an unexplained assumption that family life would be interfered with by separating the parties.
31. (One aspect of the case in the FtT, although not part of the basis of the decision, was that the appellants were to give evidence in a prosecution against their mother’s former partner for domestic abuse. We were told at the end of the hearing that he was convicted and sentenced to community service, and that the sponsor has some form of restraining order in place against him.)
32. Mr Mullen submitted that the case should be remitted to the FtT. Ms Osei-Agyemang made no submission on what the outcome should be, if we were to find error. Neither party has sought to submit any further evidence, but it is likely that the appellants will wish to update their position.
33. Under section 12 of the 2007 Act, and under Practice Statement 7.2, the decision of the FtT is set aside. It stands only as a record of what was said, and as a starting point on the existence of family life.
34. The case is remitted to the FtT for a fresh hearing, not before Judge Prudham.
35. No anonymity direction has been requested or made.

H Macleman

18 May 2022
UT Judge Macleman

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.