Tribunal decisions

The decision

IAC-AH-DP-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/03830/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28th November 2016
On 19th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

ms frida vukaj
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M Blundell, Counsel
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Albania born on 27th September 1987. The Appellant entered the UK on 14th August 2016 following a grant of leave as a student until 14th August 2007. The Appellant was most recently granted discretionary leave to remain on 25th November 2011 until November 2014 under Article 8 of the European Convention of Human Rights on the basis of the Appellant's relationship with Rebani Mucobega. On 21st November 2014 the Appellant applied for further leave to remain in the United Kingdom. However the Appellant confirmed that her relationship with Mr Mucobega was no longer subsisting. The Appellant's application was refused by Notice of Refusal dated 8th January 2015.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Grant sitting at Hatton Cross on 20th May 2016. In a decision and reasons promulgated on 22nd June 2016 the Appellant's appeal was dismissed under the Immigration Rules. On 6th July 2016 Grounds of Appeal were lodged to the Upper Tribunal. Those grounds contended firstly that the judge misdirected herself in law at paragraph 31 by refusing to undertake an Article 8 ECHR consideration outside the Immigration Rules and secondly that the judge erred in making irreconcilable findings with regard to the Appellant's claim that she was a victim of domestic violence.
3. On 24th October First-tier Tribunal Judge Ford granted permission to appeal. Judge Ford considered that it was arguable that the First-tier Tribunal may have erred in failing to conduct a proportionality assessment outside the Rules given the acceptance by the Tribunal that the Appellant had left her husband due to domestic violence. Judge Ford did not consider that it was arguable that the findings made on the issue of domestic violence were inconsistent as between paragraphs 24 and 29 in that at paragraph 24 it was accepted that the Appellant had left her husband due to his violence towards her. Judge Ford noted that at paragraph 29 Judge Grant had found that the Appellant could not succeed under the domestic violence concession because the marriage was short and because she did not report the matter to the police and did not seek an injunction. Judge Ford considered that such findings might strengthen the argument that the First-tier Tribunal Judge should have gone on to consider the proportionality of the decision outside the Rules.
4. On 11th November 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24 contending therein that the judge found no compelling features within the appeal, rejected the Appellant's claim of fear from her family as exaggerated, had found that whilst the Appellant had a difficult marriage she had exited it quickly and had given clear reasons why there were no insurmountable obstacles to her returning to Albania and made findings that there were no exceptional circumstances that would warrant consideration of the circumstances outside the Immigration Rules.
5. It is on that basis that the appeal initially comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by her instructed Counsel Mr Blundell. Mr Blundell is familiar with this matter being the author of the Grounds of Appeal. The Secretary of State appears by her Home Office Presenting Officer Mr Bramble.
Submissions/Discussion
6. Mr Bramble starts by reminding me that the Rule relating to a claim for indefinite leave to remain as a victim of domestic violence which was originally enshrined in paragraph 289(A) of the Immigration Rules is now to be found in Appendix FM at E-DVILR.1.1 and that that Rule sets out a test of four requirements all of which must be met. He contends that the judge is not constrained by the IDIs and that it was necessary for the judge to consider the evidence holistically. He takes me to page 11 where the judge accepts that the Appellant was a victim of domestic violence and refers me to Section E-DVILR which sets out the eligibility for indefinite leave to remain as a domestic violence victim in particular paragraph E-DVILR.1.2 and that the initial leave was granted outside the Rules and not as a partner and therefore it was not open to the Appellant to benefit from the provisions of the Immigration Rules.
7. Mr Blundell starts by addressing the history of the case set out at paragraph 4 of Judge Grant's decision and that the Appellant's leave was lawful and continuous from August 2006. He acknowledges that the Appellant cannot meet the ten year residence requirement required under the Immigration Rules failing by some three months at the date of the hearing. He reminds me that the Appellant speaks fluent English and refers me to the Appellant's witness statement and the skeleton argument that were produced before the First-tier Tribunal. In particular he refers me to the features which relate to the expressed closeness of the Appellant to her sister and to her personal and professional life within the United Kingdom.
8. He asked the Tribunal to note, and give consideration which should have been addressed to paragraph 276ADE(vi) namely that the requirements to be met by an applicant for leave to remain on grounds of private life in the UK are at the date of the application that the Appellant is aged 18 years or over, has lived continuously in the UK for less than twenty years but there would be very significant obstacles to the applicant's integration into the country to which he or she would have to go if required to leave the UK. He submits that Rule requires the Tribunal to look at the Appellant's ability to reintegrate in Albania and not to look at her position within the UK and that if due consideration is given to paragraph 31 of the judge's decision it is clear from that paragraph that the approach adopted by the judge was to look at the wrench that would be upon the Appellant in leaving the UK rather than her inability to return and integrate in Albania.
9. He takes me to the extensive judgment of Mr Justice Edis in Sunassee [2015] EWHC 1604 (Admin) which sets out the proper approach to Article 8 outside the Rules and Judge Edis's proper analysis that the first stage in an Article 8 consideration is to assess how completely the Rules reflect Article 8. He submits therefore if looking at paragraph 276ADE there would be punitive circumstances in removing the Appellant to Albania and that there has been no consideration made by the judge of her ties to this country. Consequently following the guidance in Sunassee it is appropriate for the judge to consider this initially and she has failed to do so. He submits that that position is accepted by the Home Office but that the judge effectively applied the wrong test by applying Gulshan and therefore an error of law arises.
10. Mr Bramble accepts the submission made by Mr Blundell but disagrees with his conclusions pointing out that a lot depends on how you interpret paragraph 31 of the immigration decision. He accepts that potentially the judge has fallen into error. He submits it is not a matter as to whether I would have come to a different decision and much of Mr Blundell's argument amounts to disagreement. He takes me to paragraph 29 of the decision which he states addresses the issue of domestic violence as a freestanding exercise and that the thrust of the arguments are considered by the judge at paragraph 30. He acknowledges that at paragraph 31 the Appellant's relationship with her sister has not been considered but queries whether this in itself would constitute an error of law. He poses the rhetorical question as to what are weighty issues and whether or not there has been a proportionality exercise carried out. He asked me to sustain the decision of the First-tier Tribunal.
11. In short response Mr Blundell submits that there has been no proportionality assessment carried out and that there has been a material error of law setting out that the judge has made no balancing exercise and no reference to paragraph 117B of the 2002 Act. As specifically the judge has failed to make any reference to the consequences that might apply to this Appellant on return. He contends that the determination is not well set out, that there has been no consideration of the Appellant's relationship with her sister, nor a period of long residence and what is called in this day and age the "near miss point". He submits that defectively there has been no evidence of an Article 8 exercise. He asked me firstly to find an error of law and then to go on and remake the decision allowing the appeal.
The Law
12. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
13. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
14. The correct first approach in this matter is as Mr Blundell has submitted to me for the judge to consider how completely the Immigration Rules reflect the range of Article 8 considerations upon which the Appellant relies. Much guidance is given on this issue by Mr Justice Edis in Sunassee. I agree with Mr Blundell that the judge has failed to undertake that exercise.
15. There seems to be agreement between the legal representatives as endorsed by the record of the Presenting Officer's submissions at paragraph 17 of Judge Grant's decision that this was a case where private life should be considered outside the Immigration Rules. It appears to be agreed that there was no express mechanism by which the Appellant's relationship with her sister could be considered or indeed that by which her ties to the UK and status as a victim of domestic violence could be factored in to an Article 8 assessment within the Rules.
16. In such circumstances I agree with the submissions made by Mr Blundell that the judge has failed to follow the general guidance and in particular the useful structure set out within Sunassee albeit that I accept that it is not necessary merely to rely on Sunassee to come to such findings. The question arises as to whether or not there is or is not a two stage approach i.e. where an applicant relies on his or her private or family life. Firstly it should be considered whether leave should be granted under the relevant provisions of the new Rules and only if the answer is no to go on to consider Article 8 in its unvarnished form. As Mr Justice Edis states in Sunassee the law is that there is always a second stage but where all relevant considerations have been weighed under the Rules and there are no compelling circumstances that are sufficiently recognised under the Rules it will be enough for the decision-maker simply to say that. I am satisfied that looking at this case that is not the approach that has been adopted by the First-tier Tribunal Judge and that it was indeed recognised by the Secretary of State that there had to be a second stage assessment under the Immigration Rules. By adopting the intermediary step I agree that the judge has materially erred in law.
The Re-Hearing
17. I am urged by Mr Blundell to go on and remake the decision allowing the appeal. Mr Bramble agrees that this is a case that if I found a material error of law it is appropriate to go on and reconsider immediately. I do not entirely agree with the submission made by Mr Blundell that merely by addressing at paragraph 31 the wrench that leaving the UK would have on the Appellant's life established in the UK that the judge has failed to address the issues in paragraph 276ADE. To a certain extent the position that the Appellant may find herself in Albania is addressed at paragraph 30 of the decision.
18. I accept that the decision is strangely set out. Much of the decision consists of quite simply scanning and inserting the Appellant's witness statement and Counsel's skeleton argument. There is no consideration of an issue which both Mr Bramble and Mr Blundell acknowledge is of significance namely the relationship the Appellant has with her sister. Further it is clearly accepted that the Appellant is a victim of domestic violence.
19. This is an Appellant who has now lived in the UK for over ten years. I am satisfied that there would be significant obstacles to her reintegration into Albania. She has an established relationship in the UK with her sister. She speaks fluent English and has integrated into UK society and is in employment within the UK. Carrying out a proportionality exercise and looking at the whole history of this matter and applying those principles I am satisfied that the submissions made by Mr Blundell are correct and that this is an Appellant whose claim consequently should succeed on human rights grounds. I consequently go on to remake the decision allowing the appeal.
Notice of Decision

The appeal is allowed on human rights grounds.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made

Signed Date

Deputy Upper Tribunal Judge D N Harris