Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05542/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd August 2016
On 16th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

THE Secretary of State FOR THE Home Department
Appellant
and

Mr Ajwinder Singh
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Ms Z Ahmad (Senior Home Office Presenting Officer)
For the Respondent: Mr S Ahmed (Counsel)

DECISION AND REASONS

1. It is convenient to refer to the parties as they were before the First-tier Tribunal. The appellant, Mr Ajwinder Singh, is a citizen of Egypt. His appeal against a decision to remove him from the United Kingdom was allowed by First-tier Tribunal Judge Obhi ("the judge") in a decision promulgated on 27th October 2015. The judge made an assessment under the Immigration Rules ("the rules"), in relation to paragraphs 276B and 276ADE and concluded that the appellant had not made out his case. She made a finding of fact that he had been present in the United Kingdom since August 2004, without any leave to remain. She then proceeded to make an assessment outside the rules, under Article 8 of the Human Rights Convention and concluded by allowing the appeal on this basis.

2. The Secretary of State, the respondent before the judge, applied for permission to appeal on the basis that the judge erred in several respects. First, although she found that the appellant could not succeed under paragraph 276ADE of the rules, she made no finding regarding sub-paragraph (1)(vi), in relation to significant obstacles to the appellant's integration into the country of his nationality, India. The very general finding that the requirements of paragraph 276ADE were not met as the appellant had been present here for only about eleven years was insufficient. A finding regarding obstacles to integration was required before the judge could properly consider whether an Article 8 assessment outside the rules was required.

3. Secondly, the judge erred in relation to section 117A to D of the 2002 Act. Little weight was required to be given to the appellant's private life, under section 117B(4)(a) and as the appellant had not shown that he had learned English or that he was financially independent, these factors fell to be weighed against him and as illustrating the public interest in his removal. Similarly, the judge appeared to give weight to the absence of offending behaviour or reliance upon public funds but these were not properly to be taken into account as positive factors and, in any event, the judge's findings in this context overlooked the lengthy period of illegal residence and evasion of immigration control. Finally, the judge appeared to overlook that the appellant could re-establish himself and his private life in India, following his return.

4. Permission to appeal was granted by a First-tier Tribunal Judge on 13th April 2016. No rule 24 response was made on the appellant's behalf.

5. Ms Ahmad said that reliance was placed upon the written grounds. The judge moved from a conclusion that the appellant could not meet the requirements of the rules, at paragraph 41 of the decision, immediately to an Article 8 assessment outside the rules, at paragraph 42. She did so without considering paragraph 276ADE(1)(vi) and this was a clear error of law in the light of SS (Congo) [2015] EWCA Civ 387, and paragraph 51 in particular of the judgment in that case. As the Upper Tribunal decision in Miah [2016] UKUT 00131 shows, Home Office guidance issued to decision makers ranks as a relevant consideration. The current guidance shows that there must be an assessment of whether there are very significant obstacles to integration into the country of return, with the starting point being that an applicant will be able to integrate, unless he or she can demonstrate why this is not the case. The judge made no findings under paragraph 276ADE(1)(vi) and erred as a result.

6. In addition, the judge failed to identify any compelling circumstances explaining why he felt able to make an assessment outside the rules. The consideration of section 117A to D of the 2002 Act was also insufficient as it was far too brief. There was nothing in the decision to show that she properly took into account all the discrete factors in that part of the statute.

7. Mr Ahmed said in response, taking section 117A to D first, that the judge had in fact given sufficient reasons for her overall assessment. Paragraph 43 of the decision showed, for example, that she was aware that the appellant had not learned to speak English and had not integrated into the wider community and it was clear from paragraph 42 that she was aware of his precarious immigration status, seen in the light of his presence in the United Kingdom for eleven years, as she found. The evidence before her also included an ESOL certificate regarding the speaking element of English. The judge noted that the appellant had worked illegally, again at paragraph 43 of the decision. The judge also took into account the extraordinary delay in dealing with the appellant's application for leave, between 2009 and 2015 and the decision showed that this was a salient feature in her decision to go outside the rules to make an overall Article 8 assessment. The period of delay of six years was clearly a key factor. Although the judge had not used the particular phrase "compelling circumstances", these could be seen in her decision.

8. Turning next to the justification for moving from the rules to an Article 8 assessment outside them, the appellant relied on Singh and Khalid [2015] EWCA Civ 74 and particularly paragraph 60 of the judgment onwards. In effect, a second stage assessment would always be present and a decision maker had to ask whether the factual matrix satisfied the requirements of the rules and, if not, whether to go on to consider the position outside them. Accepting that the Court of Appeal in Agyarko [2015] EWCA Civ 440 had emphasised that a failure to meet the requirements of the rules had to be taken into the second stage of the analysis, paragraph 43 of the decision contained sufficient to explain the judge's decision to allow the appeal. The delay point was there and the findings of fact in that paragraph and in the following one bore directly on the prospects of integration into India, even though that factor was not expressly mentioned.

9. Even if an error were found in relation to the link between the rules and Article 8 outside them, the error was not material. Overall, the judgment was soundly reasoned.

10. In reply, Ms Ahmad said that it was clear from Khalid and Singh, at paragraph 64 for example, that it was not always necessary to go outside the rules. Both SS (Congo) and Agyarko went further and made it clear that compelling reasons were required to be identified to explain why an Article 8 assessment outside the rules was required. The judge's failure to make a finding on 276ADE(1)(vi) was significant.

11. At paragraph 43 of the decision, there was nothing to show that the judge fully appreciated the importance of section 117B of the 2002 Act, which required little weight to be given to a private life established in certain circumstances. The errors were material and it was clear that if the Secretary of State's guidance had been taken into account and the judge had properly considered all of paragraph 276ADE, she might very well have reached a different conclusion.

Conclusion on Error of Law

12. There has been much guidance given recently by the Court of Appeal on the correct approach to the rules, section 117A to D of the 2002 Act and the relationship between the rules and a broader Article 8 assessment made outside them. It is clear from SS (Congo) and Agyarko in particular that considerable care is required on the part of courts and Tribunals in cases where the requirements of the rules in paragraph 276ADE and Appendix FM are not met. Judges are required to identify "compelling reasons" why an assessment outside them is required and the particular failure in an individual case to meet the requirements of the rules retains its weight and legal significance in any such assessment.

13. The difficulty with the decision in the present appeal is that the judge has moved swiftly from finding that the requirements of the rules were not met by the appellant to an assessment outside them under Article 8 without identifying the compelling reasons which justified or explained that step. The findings of fact made by the judge in paragraphs 43 and 44 do not explain which aspects of the appellant's case amount to compelling reasons. The long delay of some six years in dealing with the application for leave was given weight by the judge but as this period of time simply enabled the appellant to continue to develop his private life ties and to work illegally, it is not clear why it would amount to a compelling circumstance. Moreover, it is difficult to see how many of the findings in those paragraphs can sensibly be seen as anything other than adverse factors, as they include the appellant's limited English, his failure to integrate into the wider community and his illegal work.

14. Secondly, the findings regarding the requirements of the rules are not complete. Ms Ahmad is right to point to the absence of any finding regarding the prospects of reintegration into India, following the appellant's removal. In the light of the judge's finding of fact that he has been present here for about eleven years, waiting for a decision from the Secretary of State for six of them, and as the overwhelming bulk of his private life has been established within his own community while he has been here, the importance of a discrete finding regarding paragraph 276ADE(1)(vi) is apparent. In order to properly consider whether compelling reasons were present, requiring an Article 8 assessment outside the rules, a full rules-based assessment was an essential first step.

15. Thirdly, I conclude that the judge's brief mention of section 117A to D of the 2002 Act in paragraph 43 is insufficient to show a proper engagement with the discrete factors set out there. For example, the absence of any leave given to the appellant, his immigration status being precarious or unlawful, required the judge to begin with section 117B(4) and (5). As now explained by the Court of Appeal in Rhuppiah [2016] EWCA Civ 803, a court or Tribunal must have regard to the consideration that little weight should be given to private life established in certain circumstances, albeit that this normative guidance may be overridden in an exceptional case by particularly strong features of the private life in question. The very brief mention of the section itself is insufficient to show that the judge has fully engaged with the particular features of the statutory scheme.

16. I conclude that the decision of the First-tier Tribunal contains material errors of law and must be set aside and remade. In a brief discussion regarding the appropriate venue, there was some canvassing of whether some of the judge's findings of fact might be preserved but I conclude that none can and that the remaking should proceed on a de novo basis. Given the extensive fact-finding that will be required and the passage of time since the decision was promulgated, the appropriate venue is the First-tier Tribunal, in Birmingham, before a judge other than First-tier Tribunal Judge Obhi.

NOTICE OF DECISION

The decision of the First-tier Tribunal is set aside and shall be remade in the First-tier Tribunal, at Birmingham, before a judge other than First-tier Tribunal Judge Obhi.

Signed Date

Deputy Upper Tribunal Judge R C Campbell

ANONYMITY

There has been no application for anonymity at any stage in these proceedings and I make no direction on this occasion.

Signed Date 16/08/2016

Deputy Upper Tribunal Judge R C Campbell