Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-005303
On appeal from: HU/53592/2021
IA/09278/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 April 2023

Before

UPPER TRIBUNAL JUDGE sheridan
deputy Upper Tribunal judge metzer

Between

the Secretary of State for the Home Department
Appellant
And

MR GALAYAYE DHAMMADASSI THERO
(no anonymity direction given)
Respondent

Representation:
For the Appellant: Mrs A Nolan of a Senior Home Office Presenting Officer
For the Respondent: Mr R Solomon Counsel instructed by Lawland solicitors

Heard at Field House on 6 March 2023

DECISION AND REASONS
1. The appellant challenged the decision of the First-tier Tribunal allowing the respondent’s appeal against the appellant’s decision promulgated on 27 May 2022 on human rights grounds.
Background
2. The respondent is a citizen of Sri Lanka who was born on 28 December 1991. He entered the UK on 8 September 2014 and had periods of valid leave to enter thereafter. He applied for leave to remain on the basis of his private and family life on 8 December 2020. His sponsor was his paternal uncle who is the chief Buddhist monk in the temple where the respondent works. The respondent claimed to be the sponsor’s primary full-time carer and his appeal was based upon Article 8 of the ECHR outside the immigration rules.
First-tier Tribunal decision
3. The First-tier Judge found at paragraph 40 that the appellant provided both physical and emotional care for the sponsor and at paragraph 43 that since the appellant has been in the UK, the sponsor’s health has deteriorated significantly and the medical professionals confirm that the appellant is his main carer. She saw the sponsor who he found to be “clearly a very unwell, elderly man”.
4. The First-tier Judge also found at paragraph 45 that the appellant (who had received an awards by the Mayor of London for his outstanding contribution to life in London) had not only fully integrated into life in the UK but he had dedicated himself to making a genuine and positive contribution to the lives of others.
5. The First-tier Judge referred to the appellant speaking good English in paragraph 46 under the heading: Section 117B and then confirmed in the following paragraph that he was not underestimating the real significance of the public interest in maintaining a firm but fair immigration policy and protecting the economic wealth of the UK before concluding at paragraph 48 that it was unreasonable to expect the appellant to “remove from the UK” which as set out at paragraph 49 would have a significant impact on the sponsor who would “have to go into a nursing home which is not only not in his interests, nor is it in the interests of the UK taxpayer either” and concluded applying the ‘test approved by Sedley LJ” that “there was far more than mere hardship in this appeal” and allowed the appeal under Article 8 of the ECHR, the decision which the appellant appealed to the Upper Tribunal.
Grounds of appeal
6. The grounds of appeal asserted that the First-tier Judge erred in failing to have regard to the considerations in s117B of the 2002 Act and/or failed to apply them properly, specifically that the First-tier Judge failed to give adequate reasons why expecting the respondent to return to Sri Lanka to make an entry clearance application was disproportionate; that she arguably treated the respondent’s ability to speak English as a positive factor in para 46 contra s117B(2); that she arguably failed to consider the weight to attach to a private life established over a precarious period of stay contra s117B(4) and that whilst she expressly recognised the public interest in maintaining effective immigration controls at para 47, she arguably failed then to give it any weight per para 44 contra s117B(1).
Permission to appeal
7. Permission to appeal was granted on 11 November 2022 by First-tier Judge O’Brien on all grounds.
Upper Tribunal hearing
Submissions
8. We heard submissions for the appellant from Mrs Nolan about the First-Tier Judge’s analysis of section 117B; her consideration of the public interest and the weight to be attached to that; her finding that it was unreasonable to expect the respondent to return to Sri Lanka; how she dealt with the respondent speaking good English.
9. We also heard submissions for the respondent from Mr Solomon who maintained, in summary, that the First-tier Judge had carried out the proportionality test on all the points advanced on behalf of the appellant.
10. We indicated after brief deliberation that we dismissed the appeal on all grounds with written reasons to follow our decision, which we now give.
Analysis
11. We consider that the First-tier Judge carried out the proportionality test required under section 117B appropriately. Although rather curiously, she appeared to suggest at paragraph 44 that there was no public interest in removing the respondent, that needs to be read in the context of the section headed Section 117B and it is clear that she did make specific reference of the public interest at paragraph 47 and paragraph 44 is to be understood as a finding after carrying out the exercise in other words presaging paragraph 47 and not to mean there is no public interest to consider.
12. The First-tier Judge took into account the public interest but found it was outweighed on the particular circumstances of the case given what would have happened if the respondent had been forced to leave the UK and apply from Sri Lanka. She also noted at paragraph 48 that the appellant had always been granted lawful leave to remain and “the only reason he could not go back and reapply for his last visa renewal was due to Covid Travel restrictions and the [appellant] should have given him an extension of time to do that and it was unreasonable for this not to have happened’.
13. The First-tier Judge did refer to the respondent’s good English speaking but did not say this was a positive factor in his favour, and did not take into account any irrelevant factors in carrying out the necessary balancing exercise. She referred to the correct test in respect of how to attach weight appropriately, albeit that she did not mention the case (Rhuppiah v Secretary of State for the Home Department[ 2018] UKSC 58) by name and gave clear and cogent reasons for her findings. There was no challenge to any of the First-tier Judge’s primary findings of fact summarised above. We remind ourselves that it is not for us to determine what we would have found on this evidence and in all the circumstances, we found all the appellant’s grounds amounted simply to a disagreement on those facts.
14. We therefore dismissed the appellant’s appeal as we found the First-tier Judge had made no material error of law.
Notice of Decision
15. For the foregoing reasons, our decision is as follows:
The making of the previous decision did not involve the making of an error on a point of law. We dismiss the appellant’s appeal.

Anthony Metzer KC
Date 14 March 2023
Deputy Upper Tribunal Judge Metzer

Dated: 14 March 2023