Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06928/2015
IA/06926/2015

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Decision & Reasons Promulgated
On 20th September 2016
On 22nd September 2016

Before

DEPUTY JUDGE of the UPPER TRIBUNAL
G A BLACK

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

MRS GANGA SHRESTHA
MR ASHISH RAI
NO ANONYMITY ORDER MADE
Claimants/Respondents

Representation:
For the Appellant: Ms Z Ahmad (Home Office Presenting Officer)
For the Respondent: Mr M Aslam (Counsel instructed by Mailk & Co Solicitors)

DECISION AND REASONS
1. The appellant in this matter is the Secretary of State and I shall refer to the parties as the "the Secretary of State" and to the respondents Mrs Shrestha and Mr Rai as "the Claimants". The Claimants are a married couple and are citizens of Nepal. This is an error of law hearing which comes before me for consideration as to whether or not there is a material error of law in the decision the First-tier Tribunal (Judge Hendry) ("FtT") promulgated by on 18.3.2016 in which he allowed the appeals of the Claimants under Article 8 outside of the rules.
The FtT decision
2. The FtT found that the Claimants could not meet the Immigration Rules for family or private life. The FtT found compelling circumstances existed, namely that following the earthquake in Nepal in April 2015 the homes and businesses of the Claimants families had been destroyed and that it would be a disproportionate interference with their private lives if required to return to Nepal in such circumstances [57 - 61].
Grounds of application for permission
3. The Secretary of State appealed on the grounds that the FtT failed
- to explain how an earthquake could interfere with family life when the claimants would be returning as a couple and were adults.
- why the Claimants should be put in a better position that other Nepalese who had endured the earthquake.
- to acknowledge that Government support was available for a temporary period and found that the Claimants would be homeless.
- failed to consider that the Claimants could relocate to another area in Nepal where they could find accommodation and employment.
4. There had been no express consideration of the public interest factors, specifically that the private lives had been established during a time when their immigration status was precarious (AM (S 117B) Malawi 2015 UKUT 0260 (IAC)).
Permission
5. Permission was granted by FtT Judge Ransley on all grounds.
Submisssions
6. Both representatives made submissions. Ms Ahmad relied on the grounds of appeal and argued that the FtT erred by failing to specifically address section 117 public interest factors [59] and there was no evidence to show that the links with Nepal were severed or why the earthquake impacted on their private lives and why the Claimants should be in a better position than other Nepalese people. She relied on AM (Malawi) (cited above), Rhuppiah [2016] EWCA Civ 803 and the Upper Tribunal decisions dealing with private life for students (Nasim & Others (Article 8) [2014] UKUT 25 (IAC) and Patel & Others [2013] UKSC 72).
7. Mr Aslam submitted that the FtT had produced a detailed and considered decision and reasons in which the Rules are considered and the proper approach taken to Article 8 outside of the Rules following Razgar. He accepted that family life was not a relevant issue in the appeal given the Claimants would be returning together. The FtT found that the earthquake was an exceptional factor in the light of the fact that the Claimants families lived in an area effected by the quake and they were homeless and had no means of survival. There was photographic evidence in support.
8. The FtT was not required to recite section 117 but to have regard to relevant factors [59]. The Claimants had made in time applications and were not over stayers as in Rhuppiah. The fact of the earthquake enabled the FtT to make the findings that the Claimants would be homeless and without employment and were open to it to make.
Discussion and conclusion
9. I find that there was a material error of law in the decision made by the FtT which I set aside. Following the approach in the cases cited by the Secretary of State as to the limited scope of private lives for students under Article 8 and the public interest factors now codified in section 117, I am satisfied that the FtT made a misdirection in law and further in differentiating the Claimants appeals from those in Nasim and Patel. The FtT cited section 117 but did not consider the relevant provision under section 117B(5) as to the weight to be attached to private life established in precarious circumstances. The FtT placed too much weight on the occurrence of the earthquake and failed to make specific findings as to how it impacted on or interfered with the private lives of the Claimants. Reference was made to the likelihood of their being homelessness and jobless but there was no consideration of why they could not move to a less effected area in Nepal or why their supporters in the UK would not be able to continue to provide financial support in Nepal.
10. The FtT failed to consider that the Claimants were student and dependent spouse and that their leave in that capacity would be temporary and limited and not capable of engaging Article 8, and that there was no expectation of staying in the UK beyond that period (Patel [57]).
Remaking the decision
11. In remaking the decision I heard submissions from both representatives. Mr Aslam indicated that upto date objective evidence should be obtained on the situation in Nepal. I did not consider that such general evidence would be relevant. I determine this appeal on the evidence that was before the FtT.
12. I find that the Claimants have established private lives in the UK by reasons of the length of residence (7 years) during which they have studied and worked. They have friends and live in rented accommodation. In the event of returning to Nepal they would cease to have the standard of living and opportunities available to them in the UK by reasons of the earthquake. The decision is lawful as the Claimants do not meet the Immigration Rules. The question is whether the interference is proportionate having regard to the public interest or whether the interests of the Claimants could outweigh that public interest. In considering the same I refer to section 117B Nationality, Immigration & Asylum Act 2002 as amended by the Immigration Act 2014.
13. The Claimants were student and dependent husband and their leave in that capacity ended in 2014. The Claimant has obtained various qualifications and her husband gained work experience and earned an income from employment. They both speak English and have been supported financially by friends since the student visa expired. They have lived lawfully in the UK throughout. However, their private lives have been established when in a precarious situation with no expectation of being able to remain in the UK in any other capacity. Section 117B(5) provides that little weight is to be placed on private lives developed when their immigration status is precarious. It is not unreasonable for persons who obtained leave as a student to leave at the end of the period of study. There was no evidence to show that the Claimants had developed especially strong private lives in the UK such that they should be accorded greater weight in the Article 8 balancing exercise.
14. I fully acknowledge that the earthquake could have some impact on their lives in Nepal as it has for Nepalese people living there, but this is not a factor that can be relevant unless it can be shown that the Claimants meet Article 3 or that the Claimants themselves would be effected by the earthquake amounting to compelling circumstances to justify a departure from Section 117B. Their families are living with Government support and have temporary accommodation. The Claimants are better placed to obtain employment and accommodation having benefitted from studying and working in the UK. There was no evidence to show why the Claimants should be in a better position than those already living in Nepal.

Decision
There is a material error of law in the decision which shall be set aside.
I remake the decision by dismissing the appeal.

Signed Date 21.9.2016

GA Black
Deputy Judge of the Upper Tribunal

NO ANONYMITY ORDER
NO FEE AWARD

Signed Date 21.9.2016

GA Black
Deputy Judge of the Upper Tribunal