Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12203/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 February 2017
On 15 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

STACHANA CONONA RODNEY
(anonymity direction NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms C Hulse, Counsel instructed by CK Solicitors
For the Respondent: Mr C Avery, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal from a decision of First-tier Tribunal Judge Talbot which was promulgated on 8 July 2016. The appellant is a national of Jamaica now aged 27 who came to the United Kingdom at the age of 12. Since then, she has lived with her father from whom she had been separated for about three years, save for a period when she was in tertiary education. She has developed a particular relationship with her half-sister Kalifah who has Downs syndrome and associated learning difficulties.

2. The appellant had appealed the respondent's refusal of leave to remain, communicated by letter dated 16 March 2015. The matter was advanced in the First-tier Tribunal under the Immigration Rules and under human rights grounds, namely private and family life under Article 8 of the European Convention on Human Rights. The appeal was dismissed on both bases.

3. The appellant's case was argued before me today by Ms Hulse of Counsel. She placed reliance upon the original grounds of appeal (on which permission was refused by First-tier Tribunal Judge Colyer on 21 November 2016) and upon the renewed grounds (on which permission to appeal was granted by Upper Tribunal Judge McWilliam on 3 January 2017).

4. In essence, Ms Hulse advances three discrete grounds of appeal. First she argues that Article 8 was not properly considered by the judge in that proper consideration was not given to the private life and family life which had been established by the appellant during her time in the United Kingdom. In particular, she lays emphasis on the fact that the appellant was nearly 12 years of age when she arrived in the United Kingdom and throughout the formative years of her adolescence she has lived here continuously. Particular reliance was placed on the fact that the appellant's immigration status ought not to be considered as precarious whilst she was a minor: the sins of the parent should not be visited on the child where immigration history is concerned.

5. The second ground was in relation to a suggested misapplication of the provisions of paragraph 276ADE, and in particular the conclusions which the judge came to on whether it would be impossible for the appellant to reintegrate upon return to Jamaica. In partly overlapping submissions, Ms Hulse made argued that the judge's assessment was not open to her on the evidence.

6. The third ground was in relation to Kalifah. It was argued that the judge was wrong not to give greater prominence to the best interests of this child. In advancing her submissions, Ms Hulse cross-referenced certain matters raised in the earlier two grounds which I have very briefly outlined.

7. Ms Hulse's arguments, both individually and cumulatively, are directed not so much towards material errors of law on the part of the First-tier Tribunal, but in effect amount to a re-arguing of the case that was heard and determined in the First-tier Tribunal. Ms Hulse makes particular reference to insufficient weight being ascribed to various features in the evidence and to the judge not balancing relevant features appropriately. However, I cannot identify in what is a lengthy, careful and thorough decision any error of law as contended for on behalf of the appellant. On the contrary, the decision is a model of clarity in that the judge with considerable care balances the relevant features on each side of the argument and comes to fully reasoned and soundly-based conclusions in relation to: paragraph 276ADE; arguable interference with the appellant's Article 8 rights; countervailing public interest requirements under Section 117B; and in the weight to be given to the best interests of Kalifah.

8. I do not consider it appropriate to rehearse and rebut each and every challenge made by Ms Hulse to the evidential findings of the judge which, it was argued, served to undermine the conclusions in the decision. The judge's finding at paragraph 19 of the decision with regard to the support structures which might exist for the appellant were she to return to Jamaica were open to her based upon careful assessment of the evidence. It must be remembered that the judge had benefit of testimony from appellant, her father, her paternal aunt and a close friend. The judge has drawn a legitimate inference as to the availability of a network which was properly open on the evidence.

9. Similarly, in assessing Article 8, the judge did not reject out of hand the possibility that family life might extent to a parent and adult child, but in paragraph 21 assessed the possible application of Article 8 on the fact specific case before her properly (if succinctly) applying the principled approach advocated in Kugathas [2003] EWCA Civ 3.

10. The best interests of Kalifah were the subject of a balanced evaluation by the judge as is apparent from paragraph 23. The decision identifies various competing factors, recognises the weight which must attach to such best interests considerations, and comes to a properly reasoned evaluation.

11. The judge's discussion of section 117B at paragraph 24 identifies the public interest factors for an appellant whose immigration history has been precarious. Admittedly in this paragraph she traces such immigration history back to the time of the appellant's arrival in the United Kingdom at the age of 12, but this must be seen in the context of the entire decision. Read holistically, it fully appreciates the appellant's immigration history as part of the background. The judge is patently aware of the distinction between matters occurring during the appellant's minority, and subsequent events. This public interest consideration is not afforded determinative status but is fairly recorded as part of the constellation of factors relevant to the balancing exercise which is the function of the First-tier Tribunal.

12. It is, of course, conceivable that a different judge might have come to a different conclusion. That is inevitably where issues are finely balanced and the outcome turns on the evaluation of evidence and the assessment of relevant and competing considerations. In this instance the judge's decision is fully reasoned and readily comprehensible. I cannot find any material error of law such as to justify interference by the Upper Tribunal in a decision properly located within the facts as found by the judge, which demonstrates the measured and reasoned exercise of judicial discretion in accordance with the law.

13. In the absence of any error of law, this appeal must be dismissed and the decision of Judge Talbot affirmed.

Notice of Decision

Appeal dismissed.

No anonymity direction is made.

Signed Mark Hill Date 14 February 2017

Deputy Upper Tribunal Judge Hill QC