Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08697/2015

THE IMMIGRATION ACTS

Heard at: Columbus House, Newport
Decision and Reasons promulgated
On: 1 August 2016
On: 30 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SADIQ [K]
(anonymity direction not made)
Respondent

Representation
For the Appellant: Mr I Richards, Home Office Presenting Officer
For the Respondent: Mr M Paur, Counsel instructed by Gillman Smith Lee Solicitors

DECISION
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Suffield-Thompson in which she allowed the appeal of Sadiq [K], a citizen of Pakistan, against the Secretary of State's decision to refuse to grant leave to remain on human rights (Article 8 ECHR) grounds. For the sake of clarity, I will refer to Mr [K] as 'the Applicant'.
2. The Applicant arrived in the United Kingdom on 29 April 2006 and was given leave to remain as student. His leave to remain on this basis eventually expired on 14 January 2012. A subsequent application for leave to remain was refused and the Applicant's appeal against that refusal was dismissed by Judge Rowlands on 21 August 2013. The Applicant exhausted his appeal rights on 27 November 2013. On 28 January 2015 the Upper Tribunal granted a stay of removal pending the Secretary of State's consideration of a report from an independent social worker. On 9 February 2015 the Secretary of State reconsidered and again refused the application to remain on human rights grounds and on 16 February 2015 removal directions were given. The Applicant exercised his right of appeal against the Secretary of State's decision and this is the appeal that came before Judge Suffield-Thompson on 30 September 2015 and was allowed. The Secretary of State applied for permission to appeal against the First-tier Tribunal Judge's decision. The application was granted on 1 April 2016 by First-tier Tribunal Judge Kimnell in the following terms
It is arguable that the Judge failed to carry out a proper balancing exercise having regard to s.117B of the Nationality Immigration and Asylum Act 2002 as amended.
3. At the hearing before me Mr Richards appeared for the Entry Clearance Officer and Mr Puar appeared on behalf of the Applicant.
Submissions
4. Mr Richards said that the grounds are fairly brief and clear. The previous appeal had been dismissed by the First-tier Tribunal (Judge Rowlands) and permission to appeal to the Upper Tribunal was not granted. Whereas the Judge in the appeal now being challenged was not bound by the previous findings these should have been the starting point. The Judge failed to take into account Judge Rowlands conclusions. There is no record of his findings in her decision and this is a clear misdirection. It was irrational for the Judge to conclude that the Applicant was a "third parent" to his cousin's children. The Judge's overall conclusions in this respect are put in extreme terms and are little more than hyperbole. The Judge has also erred in her conclusions concerning section 117B. By concluding that the Applicant, not currently claiming benefits for himself, was not a financial burden on the state the Judge has used the wrong test the correct question being whether the Applicant was financially independent.
5. For the appellant Mr Puar said that the Judge correctly self-directed to Devaseelan v SSHD [2002] UKAIT 00072 at paragraph 28. Judge Rowlands did not make any adverse factual findings, he made an assessment of proportionality. The Judge points to evidence that was not before Judge Rowlands. The Judge sets out her reasoning correctly and was quite entitled to come to the conclusions that she did. So far as family life is concerned Judge Rowlands found that there were more than normal ties between the Applicant and the children. There is nothing irrational about the Judge's conclusions. When dealing with section 117 the Judge points out at paragraph 45 that the Applicant speaks excellent English, has never been convicted of a crime, and is not claiming benefits. She was right to point out that there are no countervailing features. Section 117 is not exhaustive and the Judge correctly takes into account all relevant factors before reaching her conclusion.
Decision
6. The factual matrix involved in this appeal is unusual. The Applicant came to the UK as a student in 2006 and went to live with his cousin Sohail before moving to live with his cousin Shakeel and his family in 2001. The Appellant and Shakeel had been very close as children. Shakeel and his wife both have severe mental health problems. Having moved in with Shakeel the Applicant very soon became an integral part of the household looking after Shakeel's four children and due to their health issues also looking after Shakeel and his wife. The extent of the family responsibilities that the Applicant has taken on is detailed in the decision of judge Rowlands and well as the decision under appeal.
7. As Mr Puar rightly pointed out there were no adverse factual findings made by the previous Immigration Judge. In a decision made following a hearing on 14 August 2013 Judge Rowlands recites the facts at paragraph 12 i) and concludes that the Applicant has an established family life with Shakeel [S] and that his relationship with 'Shakeel's family and aunt and Lubna' form part of the Appellant's established private life in the United Kingdom. Judge Rowlands went on to find at paragraph 12 ii) that the Respondent's decision interferes with the Applicant's family and private life sufficiently significantly to engage Article 8. At paragraph 12 iv) Judge Rowlands considers the issue of proportionality at length before reaching the conclusion that it is not disproportionate for the Applicant to leave the United Kingdom.
8. There is in my judgement nothing at all in the decision now under appeal to indicate anything other than that the Judge took Judge Rowlands decision as the starting point. The Judge correctly self-directs to Devaseelan (at paragraph 28) and refers to Judge Rowlands' decision (paragraphs 28 to 32). There is no error of law apparent and indeed with Judge Rowlands having found that the Respondent's decision was an interference in the Applicant's established family and private life a review of proportionality taking into account the passage of time and events since Judge Rowlands' decision was undoubtedly the proper approach. The first ground of appeal must fail.
9. Equally the second ground of appeal cannot succeed. The Secretary of State complains that the Judge's conclusion that the Applicant was a third parent to his cousin's children is irrational particularly in circumstances where the family admit that they have never sought the assistance of social services. In fact, the Judge carefully examines the circumstances of this family, circumstances that Judge Rowlands had already found constituted a family life in which the Applicant was involved, and reaches the conclusion that a protected family and private life exists. Her assessment of the quality of that family life is clearly shown by the conclusion that the Applicant is a third parent to the children. Whilst the wording of this conclusion may have an element of hyperbole the facts behind it are quite clearly and indeed comprehensively set out. The Judge was entitled to come to such a conclusion having examined the facts and it cannot be described in my judgment as irrational.
10. The final ground of appeal suggests that the Judge's finding that the Applicant, not claiming benefits, was not a financial burden on the state and so the Secretary of state could 'only rely upon the maintenance of immigration control' was a misdirection in law the correct test being whether he was financially independent.
11. There are a number of reasons in my judgement why there is no material error in this respect. Firstly, the maintenance of immigration control is of itself in the economic interests of the United Kingdom it is not a distinct public interest. The Judge clearly took into account the economic interests aspect of the maintenance of immigration control by considering whether the Appellant was a financial burden on the state. Secondly and in any event the factors detailed in section 117B are not exhaustive. It is not a requirement that an Appellant be financially independent, this is a factor to be considered and to be taken into account when dealing with the issue of proportionality. Thirdly it is very clear that in reaching her decision the Judge took into account a full panoply of reasons of which the fact that the Appellant was not a financial burden upon the state was just one. The decision is comprehensive and thoroughly reasoned and the Judge makes it very clear in terms that are, in my judgment unassailable, why she makes the finding that the Secretary of State's decision is disproportionate.
Conclusion
12. There is no error of law material to the decision to allow the appeal.
13. The decision of the First-tier Tribunal stands.

Signed: Date: 30 August 2016

J F W Phillips
Deputy Judge of the Upper Tribunal