The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10382/2013


Heard at Field House
Determination Promulgated
On 4th December 2013
On 23rd December 2013


upper tribunal judge MARTIN




For the Appellant: Mr P Turner (instructed by Farani. Javid. Taylor Solicitors)
For the Respondent: Ms S Ong (Senior Home Office Presenting Officer)

1. This is an appeal to the Upper Tribunal by the Respondent against the decision of the First-tier Tribunal, Judge Rothwell, who in a determination promulgated on 12th August 2013 allowed the Appellant’s appeal on Article 8 grounds.
2. For the sake of continuity and clarity I shall continue to refer to Miss Caizapanta as the Appellant and the Secretary of State as the Respondent.
3. The Appellant is a citizen of the United States of America born on 25th January 1992. In the UK she lives with her mother who is a national of Ecuador, her mother’s partner, her own partner and her young daughter.
4. She entered the UK with her mother as a visitor in September 2004, when aged 12 and they both overstayed. On 15th June 2011 they both submitted applications for leave to remain on Article 8 grounds. On 15th March 2013 the Secretary of State made a decision to refuse both of them leave to remain on human rights grounds. The Secretary of State had already served form IS.151A on 14th August 2012.
5. Both appealed and the appeals came before Judge Rothwell. The Appellant’s mother lost her appeal and has exhausted her avenues of appeal. The Appellant’s appeal was allowed on Article 8 grounds and it is that decision which the Secretary of State challenges as containing errors of law.
6. The grounds seeking permission to appeal are fairly lengthy. The first ground argues that the Judge erred in allowing the case on Article 8 grounds when the Appellant did not meet the requirements of Appendix FM to the Immigration Rules. The second ground argues that the Judge failed to give reasons or adequate reasons on material matters and in particular argued that in finding removal disproportionate the Judge had failed to consider that the Appellant could reside in Colombia with her partner and child. That latter ground was the one relied upon before me by Ms Ong.
7. The facts found by the Judge are not challenged. The Appellant’s mother is a national of Ecuador. She crossed the border into the United States of America when heavily pregnant so the Appellant was born in the USA and is therefore a USA national. Her mother returned with her to Ecuador as a baby where she lived until she was five. The Appellant has not been back to Ecuador since the age of five. The family then lived in Spain for seven years and then came to the UK when she was aged twelve and where she has lived for nine years. Her only family member in the USA is a sister who resides in a mental hospital in New Jersey.
8. She is in a relationship with Mr Rojas who is a Colombian national and with whom she lives. He is the father of her daughter who was born on 18th October 2011 and his name appears on the birth certificate. She, Mr Rojas and their daughter have a family life together. Mr Rojas has no status in the United Kingdom. He was in fact deported following criminal convictions in 2009 but re-entered the UK with a student visa in May 2010. The Secretary of State is seeking to remove him to Colombia.
9. The Judge found that the Appellant was not responsible for coming to the UK or for overstaying; the decision was made on her behalf when she was a child. She has no ties whatsoever to Ecuador and no ties to the USA, the country of her nationality. She has been in the UK for nine years. The judge considered the best interests of the Appellant’s daughter and found that her best interests were for her to be brought up by and to live with both of her parents. There was no evidence before the Judge as to the baby’s nationality and whether she was entitled to USA citizenship and no evidence that Mr Rojas would be permitted to enter the USA. Indeed if he has committed criminal offences in the United Kingdom it seems unlikely. The Judge therefore found it unlikely that he would be able to accompany the Appellant to the USA.
10. The Appellant’s father and his family live in Spain but there was no evidence before the Judge that the Appellant could live in Spain or that she could live in Ecuador which is the country to which her mother will be removed.
11. The Judge therefore found that in the particular factual matrix and on the evidence before her it would be disproportionate for the Appellant to be removed to the USA. She accepted that it was not attractive that she should be allowed to remain given her position but she has few connections if any to any other country through no fault of her own and the Respondent had delayed making decisions by which time she had given birth to her daughter.
12. It is true that the Judge did not give consideration as to whether or not she would be able to accompany her partner to Colombia if and when he is removed. However, the burden of proof to show that removal is disproportionate rests with the Respondent. Ms Ong acknowledged that to be the case. She also accepted that there was no evidence before the First-tier Tribunal that the Appellant and her daughter would be permitted entry to Colombia. If the Secretary of State is arguing that a person’s removal to another country is proportionate it is incumbent upon her to show that the person will be accepted by that country. The Respondent adducing no evidence to that effect, it was not an error of law for the Judge to fail to deal with the reasonableness of the Appellant and her daughter living in Colombia.
13. Whilst another judge may have decided this appeal in a different way, this Judge has looked at the appeal in accordance with established case law in relation to Article 8 of the ECHR and has given reasoned findings as to why she found removal disproportionate. I therefore find there is no error of law and the decision of the First-tier Tribunal shall stand.
14. The appeal to the Upper Tribunal is dismissed

Signed Date 5th December 2013

Upper Tribunal Judge Martin