Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05344/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 18 March 2016
On 7 April 2016

Before

UPPER TRIBUNAL JUDGE STOREY

Between

MS FREDERICA RUBY ESTHER WYSE
(ANONMYITY DIRECTION NOT MADE)

Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M Ume-Ezeoke, Counsel, instructed by Charles Ete & Co Solicitors
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Sierra Leone aged 69. She has been granted permission to bring an appeal against the decision of First-tier Tribunal Judge Lingam sent on 8 September 2015 dismissing her appeal on human rights grounds against a decision made by the respondent on 10 January 2015 refusing to vary her leave to remain and to remove her by way of directions under s.47 of the Immigration, Asylum and Nationality Act 2006. The appellant had been coming regularly to the UK on a visitor's visa since 2007. On the last occasion she entered the UK on 14 May 2014 on a 6 months visitor's visa valid until 20 March 2016 and submitted an in-time application for indefinite leave to remain based on Article 8 grounds. In rejecting this application the respondent stated that she did not meet the requirements of the Immigration Rules and had not shown there was an exceptional basis for her to stay outside the Rules.

2. In refusing her appeal against this decision the judge concluded that the appellant had not shown she met the substantive requirements of the Rules or that the respondent was not entitled to refuse her on general grounds of refusal under para 322(1) as well. At [38] the judge decided it would be appropriate for her to consider the appellant's Article 8 circumstances outside the Rules as "the Rules do not adequately consider all of the appellant's family life circumstances in the UK".

3. In the course of her findings, the judge accepted that the appellant had become a widow in 2002 and had lost a son in 2009. By virtue of the appellant having made trips to the UK to see her daughter, the judge accepted that there was a close relationship with her daughter and probably with her daughter's spouse and children, but concluded that, applying the principles set out in Kugathas [2003] EWCA Civ 31, her bond with her daughter and family "does not suggest something more than normal emotional ties" ([47]). The judge found that she was in relatively good health, has a respectable pension and also has property in Sierra Leone. The judge did not accept that the appellant's claim that her home situation in Sierra Leone had become untenable as a result of continued thefts and burglaries. The judge also considered that the appellant would have support on return from her neighbour and lawyer as well as other friends.

4. At [26] the judge referred to the evidence before her from the appellant's neighbour in Sierra Leone and his mention that he regarded himself as the appellant's son. The judge stated that this indicated that he had a high regard for the appellant and genuinely cared for her well-being and "would avail himself to the appellant if required".

5. At [28] the judge said:

"I find it not credible that despite the appellant being born and raised in Sierra Leone; having led a married life and having raised two children; having enjoyed a respectable position with UNICEF based in Sierra Leone, that she practically had no knowledge of anyone she could rely upon to assist her with her general household chores or that even if with the small social group she claims to associate with that no one is able to recommend a reliable person to help with her care or household chores, simply lacks credibility. The evidence and probable reality is that she has not looked for or hired help to assist her. Therefore her claim she would be without reliable help or assistance is not credible".

6. At [34] the judge noted that "[t]he evidence is that she has a reliable and supportive neighbour, a trustworthy lawyer and loyal friends who would probably be accessible to the appellant should she require assistance?"

7. In light of her finding that the appellant did not family life ties within the meaning of Article 8(1) the judge stated at [48] that she declined to proceed to assess proportionality. However, at [49] she went on to "complete the assessment" in any event. In this context she considered the appellant's circumstances in light of the considerations set out in ss.117A-D of the Nationality, Immigration and Asylum Act 2002. The judge also found that her daughter in the UK would be able to afford care for the appellant if needed.

8. At [68] the judge concluded:

" ?I have taken full account of the interruption in the appellant's established relationship with the sponsor including her grandchildren. I am satisfied that the appellant's relationship before September 2014 was one that was enjoyed from overseas through short periods of yearly visits. I am satisfied that the sponsor and her spouse will preserve their children's best interests. Hence, the appellant's removal would probably not cause the sponsor and her family members to suffer any hardship that would go far enough beyond the baseline as she would be returned to her birth country where she had lived the majority of her life and continues to have strong personal and economic connections in Sierra Leone?"

Grounds of appeal

9. The appellant's first ground of appeal is that the judge wrongly took irrelevant factors into consideration. She was said to have done this (i) by concluding that the appellant's neighbour would care for the appellant just because he referred to himself as her son and was sending regular messages. It was stated that nowhere in his evidence had he said he would take care of the appellant and indeed he had said he had his own family and would not be available to care for her; (ii) by concluding she had sufficient funds when the evidence was that she only had $400 per month; (iii) by drawing an adverse inference from the decision of the appellant not to sell her property (when she had explained it was an ancestral property of her husband's family); by drawing an adverse inference as to whether the appellant faced continued break-ins to her home from her delay in making a visa application.

10. The appellant's second ground was that the judge had misquoted and misapplied paragraph 276ADE(1)(vi) and wrongly stated that this paragraph required the appellant to have lived in the UK for at least 20 years. This error was said to have affected the judge's assessment of the appellant's human rights.

11. The third ground was that in finding that there would not be very significant obstacles to the appellant's reintegration into Sierra Leone the judge had failed to take into account the appellant's age and lack of family members in Sierra Leone and the evidence that her property had been targeted by thieves because they knew she had previously worked for UNICEF and thought she had money and thus her situation was more risky compared to others living in the area.

12. The fourth grounds of appeal was that the judge erred in finding that the appellant did not have family life with her daughter and family in the UK, given that she was 68 and dependent on her daughter both physically and financially.

Analysis

13. I am not persuaded the appellant's grounds disclose error of law on the part of the judge.

14. Dealing first with the second ground, I accept that at [33] the judge appeared to consider wrongly that the appellant could only succeed if able to show she had lived continuously for no less than 20 years in the UK. Paragraph 276ADE(vi) clearly permits persons who have lived in the UK for less than 20 years to succeed if able to show "very significant obstacles" to integration back in the country to which they will have to go if required to leave the UK. However, that error was wholly academic because the judge at [33]-[35] proceeded to assess whether there were very significant obstacles and concluded at [35] that the evidence did not establish any such obstacles.

15. Reverting to normal order, I consider the first ground to amount to no more than a series of disagreements with the judge's findings of fact. It is clear from [26] that the judge took into account the evidence that the appellant's neighbour had his own family. In the absence of any country of origin information evidence to show that the appellant's pension level would mean that she could not support herself, it was open to the judge to consider that she had sufficient income of her own. In any event, on the judge's findings the appellant could look to her UK daughter for financial help if needed: see [25]. As regards the appellant's property, the judge paid particular attention to the conflicting state of the evidence regarding whether or not the appellant could sell it given that it was her late husband's ancestral land ([27]) and in the absence of any evidence of any other surviving relatives on her husband's side the judge was entitled to find that she could sell it if she wished. Similarly, it was within the range of reasonable responses for the judge when assessing whether the appellant had given a credible account of continued targeting from burglars and thieves, to attach significant weight to the apparent lack of urgency in applying for a visa to visit the UK ([25]).

16. Turning to the third ground, this really does no more than contend that the judge should have attached more weight than she did to the appellant's evidence that her previous work for UNICEF made her more of a target for break-ins than others living in the area. It is clear that in finding that the appellant had failed to show that there was an ongoing problem of thefts and break-ins at her home in Sierra Leone, the judge took into account all the evidence and reached entirely sustainable conclusions. Various paragraphs of her decision attest to the time and thought she put into deciding this issue on the basis of all the evidence before her: see e.g. [25], 27], [34] and [67].

17. As regards the fourth and final ground, this also amounts to no more than a disagreement with the judge's findings of fact. It is entirely clear that the judge properly applied the established principles of Article 8 jurisprudence regarding family life ties between a parent and adult children and grandchildren; and the judge was quite entitled to weigh in the balance in deciding this matter that the appellant was in relatively good health and had been content hitherto to restrict herself to yearly visits to see her daughter without making a settlement application and had not shown any significant change in her circumstances in Sierra Leone since. It was also open to the judge to find significant the sponsor's explanation for her current application being her desire to avoid costly visit visa applications and flight tickets.

18. The grounds do not articulate a clear challenge to the judge's conclusion that the appellant could not succeed under the Immigration Rules, but it is simply not arguable that she could have succeeded, not least because the grounds make no challenge to the refusal on general grounds under para 322(1). As regards the substantive Rules, Mr Ume-Ezeoke sought in submissions before me to argue that the judge had erred in failing to find that there were very significant obstacles to the appellant's re-integration into Sierra Leone. However, I consider the judge gave cogent reasons for concluding that there were no such obstacles, highlighting, inter alia, her continuing close connections of language and culture with Sierra Leone; her continuing ability to live an independent life in that country; her small but important network of neighbours and friends; the fact that for 5 years she had been content to pursue contact with her daughter and family in the UK through short visits without there being any significant change in her circumstances. On the totality of the evidence, and given the high threshold set both under the Immigration Rules (which specify very significant obstacles) and Article 8 jurisprudence, which variously refers to insurmountable obstacles or serious hardships, in my judgment it would indeed have been perverse of the judge to have found the relevant thresholds were met. To the extent that the grounds challenge the judge's findings on some of these matters, I have already given my reasons why challenges of that order must fail.

19. I should also mention that Mr Tufan expressed doubt as to the propriety of the judge's basis for deciding to consider the appeal outside the Immigration Rules - he drew attention to the fact that the judge was not satisfied the appellant had established the seemingly sweeping claim made at [38] that the Rules "do not adequately consider all of the appellant's circumstances in the UK". Given that I have found no errors in the judge's findings of fact or in her assessment of the appellant's Article 8 circumstances generally, it is unnecessary to address whether the judge was justified in considering the appeal outside the Rules on the basis she identified. That is because her reasons for dismissing the appeal both inside and outside the Rules are free of legal error. I would observe, however, that to the extent that Mr Ume-Ezeoke sought to argue that the judge's assessment of the appellant's Article 8 circumstances outside the Rules was flawed, he not only failed to identify any legal error in that assessment; he also failed to address the evident problem for his argument in this context that the judge was bound to apply s.117B(5) and to find that "little weight" could attach to the appellant's private life by virtue of her immigration status being precarious. Given the judge's error-free finding that the appellant had not shown she had a family life within the meaning of Article 8(1), private life was the only Article 8(1) right she was entitled to invoke. In any event, even if the judge had considered there was a family life within the meaning of Article 8, she would still have had to apply established case law treating as a factor adverse to an applicant that they have established or developed their family life ties at a time when their immigration status was precarious: see Rajendran (s117B - family life) [2016] UKUT 138 (IAC)).

20. For the above reasons I conclude that:

The First tier Tribunal judge did not err in law and accordingly her decision to dismiss the appellant's appeal must stand.

Signed

Judge of the Upper Tribunal