Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA079922015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26th May 2016
On 20th June 2016

Before

DEPUTY upper tribunal JUDGE RENTON

Between

TAMIYO FUKUDA GRIFFIN
(ANONYMITY DIRECTION Not MADe)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr B Hoshi, Counsel instructed by Solomon Taylor and Shaw Solicitors
For the Respondent: Mr S Whitwell, Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellant is a female citizen of the United States of America born on 5th July 1928 and hence 87 years of age at the time of the hearing. She first arrived in the UK on 15th May 2014 when she was granted leave to enter as a visitor until 15th November 2014, subsequently extended until 13th December 2014. On 10th December 2014 she applied for further leave to remain on human rights grounds. That application was refused for the reasons given in the Respondent's Refusal Letter dated 11th February 2015. The Appellant appealed that decision and her appeal was heard by First-tier Tribunal Judge Bird (the Judge) sitting at Taylor House on 29th September 2015. She decided to allow the appeal under Article 8 ECHR, but to dismiss it under the Immigration Rules and Article 3 ECHR. Both the Appellant and the Respondent sought leave to appeal that decision and both were granted such permission on 18th April 2016.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside. I decided to hear the Appellant's application first.
3. The Judge allowed the appeal under Article 8 ECHR because to begin with she found that there were exceptional circumstances which allowed her to consider the Appellant's human rights outside of the Immigration Rules. These exceptional circumstances were that the Appellant was 87 years of age and was unable to cope without a great deal of personal care owing to her physical and mental difficulties. The Appellant needed the emotional support of her family in the UK. The Judge then found that the Appellant had a private life in the UK which would be interfered with by the Respondent's decision to a degree of gravity which engaged the Appellant's Article 8 ECHR rights, and which was disproportionate. The Judge took into account the public interest represented by the fact that the Appellant had no right to remain in the UK under the Immigration Rules, but found that the Appellant's personal circumstances carried the most weight.
4. At the hearing, Mr Whitwell argued that the Judge had erred in law in coming to this conclusion. He referred to the grounds of application and argued that the Judge had failed to identify sufficiently compelling circumstances to consider the Appellant's Article 8 ECHR rights outside the Immigration Rules as required by the decision in SSHD v SS (Congo) and Others [2015] EWCA Civ 387. Further, the Judge had erred in law by attaching insufficient weight to the public interest. The Appellant had spent only a very limited period of time in the UK prior to the hearing before the Judge, and the Judge had earlier found at paragraph 39 of her Decision that there were no significant obstacles to her integration into the country of return for the purposes of paragraph 276ADE(1)(vi) of HC 395. There was evidence before the Judge that there were ample financial resources available to the Appellant to finance the Appellant's care in the country of return. The Judge had failed to attach sufficient weight to the public interest. She had failed to give sufficient consideration to her earlier finding that the Appellant had failed to meet the requirements of the Immigration Rules as an adult dependant relative.
5. In response, Mr Hoshi argued that there had been no such error of law. He described the Respondent's grounds of application as amounting to no more than a disagreement with the decision of the Judge. The Judge had identified at paragraph 40 of the Decision sufficient exceptional circumstances allowing her to consider the Appellant's Article 8 ECHR rights. That being the case, the Respondent's grounds of application amounted to an irrationality challenge which required a high threshold which had not been met. At paragraph 32 of the Decision, the Judge had found credible the expert medical evidence of three physicians which clearly showed that owing to her physical and mental incapacities the Appellant was unable to look after herself.
6. Mr Hoshi went on to argue that the proportionality decision of the Judge was rational. She had carried out a proper balancing exercise in which she had given a proper consideration of the public interest. The Judge had correctly mitigated the weight to be given to that public interest on the basis that there was medical evidence to say that the Appellant was not fit to fly.
7. I find no error of law in the decision of the Judge to allow the appeal on Article 8 ECHR grounds which I therefore do not set aside. The Judge had first decided that the Appellant did not qualify under the Immigration Rules for leave to remain as an adult dependant relative, and then also found that the Appellant did not meet the requirements of paragraph 276ADE of HC 395. However, those decisions in themselves did not preclude the Judge from considering the Appellant's Article 8 ECHR rights. At paragraph 40 of the Decision the Judge found that there were exceptional circumstances which he set out in that paragraph. She gave sufficient reasons for that decision which in my view cannot be described as irrational nor perverse.
8. The Judge then considered the Appellant's Article 8 ECHR rights. The Judge found that the Appellant had developed a private life in the UK since her arrival in May 2014 based upon her relationship with her children and grandchildren resident in the UK. The Judge then considered the interference which the Respondent's decision would cause to that private life. She carried out a proper balancing exercise and found the interference to be disproportionate. The Judge referred to the public interest at paragraph 41 of the Decision, but found that the Appellant's circumstances carried most weight. This was a decision fully explained by the Judge. It was not irrational nor perverse for the Judge to find that the Appellant's personal circumstances carried the most weight, particularly those relating to her health which resulted in the Appellant being incapable of looking after herself. I agree with the submission of Mr Hoshi that the Respondent's ground of application in this respect amounts to no more than a disagreement with the decision of the Judge.
9. For these reasons I find that the decision of the Judge to allow the appeal under Article 8 ECHR contained no error of law and therefore I do not set it aside. Having announced that decision at the hearing, both parties declined the opportunity of addressing me further in respect of the Appellant's application. I make a decision that there was no error of law in the decision of the Judge to dismiss the appeal under the Immigration Rules and on Article 3 ECHR grounds. I do not set those decisions aside. In my view the Judge correctly applied the provisions of paragraph 276ADE(1)(vi) of HC 395, and did not err in law in finding that the Appellant's poor health did not meet the very high threshold given by the jurisprudence in Article 3 ECHR cases.

Notice of Decision

The making of the decisions of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside those decisions.

The appeals to the Upper Tribunal are dismissed.

Anonymity

The First-tier Tribunal did not make an order for anonymity. I was not asked to do so and indeed find no reason to do so.

Signed Date 20th June 2016

Deputy Upper Tribunal Judge