Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12895/2015
& IA/12896/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 10 October 2016
On 21 December 2016

Before

UPPER TRIBUNAL JUDGE JORDAN

Between

(1) Alina [B]
(2) Vladislav [B] (a minor)
Appellants
and

The Secretary Of State For The Home Department
Respondent

Representation:
For the appellant: Mr B. Hawkin, instructed by Arlington Crown, solicitors
For the respondent: Mr D. Clarke, Home Office Presenting Officer

DECISION AND REASONS
1. The appellants are both citizens of the Ukraine. The first appellant was born on the 27 November 1985. Where the context admits, the expression 'the appellant' refers to her. The second appellant is her son. He was born on 7 April 2009. The appellants appeal against the determination of First-tier Tribunal Judge Maka promulgated on 17 February 2016 in which he dismissed the appeals of each appellant both under the Immigration Rules and on human rights grounds.
2. On 21 October 2015 the appellants' representatives had requested that the appeal was determined on the papers. It was for this reason that neither the appellants nor the respondent appeared at the hearing. It was conducted on the papers. Although much of the evidence was uncontroversial, there were a significant number of issues on which the judge would have been assisted by evidence from the first appellant. Further, given the respondent's rejection of the application on the basis that the first appellant did not meet the requirements of the Immigration Rules, the burden was placed upon the claimant to establish those requirements had been met or that there were other circumstances justifying a consideration of the appeal outside the Rules. It is difficult to understand why the first appellant did not grasp the importance of assisting the Tribunal by giving evidence.
3. Notwithstanding this, the grounds of appeal now assert that First-tier Tribunal Judge erred in law in failing to allow the appeal under Article 8.
4. The appellants' immigration history is set out in paragraph 6 of the respondent's decision of 17 March 2015. The first appellant had entered the United Kingdom on 2 April 2005 under the terms of a visa valid until 29 August 2005. Her son Vladislav was born four years later. An application made in May 2012 to remain as a partner of a person settled in the United Kingdom was refused. On reconsideration, the claim was rejected once again. On the basis of this unpromising start, a further application was made for leave to remain on human rights grounds. The appellant's claim based on her family live with a partner was rejected. The evidence established the couple had been living together for a period in excess of two years and the eligibility requirements of Appendix FM had been met. The decision went on to consider the requirements of family life as a parent. The couple were jointly responsible looking after their son, the second appellant, but he was neither a British citizen nor had settled status. Furthermore, he had not been continuously present for at least seven years preceding the date of application in the United Kingdom.
5. The decision letter went on to consider that as it was reasonable to expect the second appellant to leave the United Kingdom as he was then not six years old. The transition would not be difficult given the mother's familiarity with Ukraine and the opportunity available to her partner to join her in the Ukraine if he chose to do so. The best interests of Vladislav would be met by his remaining with his mother. There were no very significant obstacles in the first appellant's integration into Ukraine given the fact that she had spent the first 20 years of her life there.
6. The decision letter went on to consider the fact that although Vladislav had spent his entire life in the United Kingdom, he could safely live in the Ukraine with his mother. Such activities as formed part of the appellant's private life in the United Kingdom, such as her activities within the Ukrainian Catholic Church indicated her familiarity with Ukrainian life and there were no exceptional circumstances meriting a right to remain in the United Kingdom having failed to meet the public interest criteria of the Immigration Rules.
7. The appellant has appealed against the determination of Judge Maka and in granting permission of the Tribunal Judge Freeman considered the subsequent decision of Kamara might require consideration.
8. In Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 (11 August 2016), Sales LJ (with whom Moore-Bick LJ agreed) recited that the Secretary of State wished to deport Mr Kamara to Sierra Leone as a foreign criminal. Mr Kamara had come to this country in 1993 as a young child, aged 6, with his sister, aged 8, to live with his adult half-sister who was in the UK with indefinite leave to remain. That was some 23 years before. He was brought up here. On 30 August 1995 he and his sister were granted indefinite leave to remain as dependants of his half-sister. The Upper Tribunal found that he had no ties with Sierra Leone, having lost all contact with the country a long time ago. Mr Kamara could not speak any of the local languages in use in Sierra Leone; he was fully integrated into society in the UK.
9. The principal factual issue in dispute at the hearing before the Upper Tribunal was whether Mr Kamara had maintained links with his natural mother in Sierra Leone. Mr Kamara's evidence was that he had not. The Tribunal found Mr Kamara's natural mother had disappeared in about 1994 and she could not be traced.
10. The important question was whether there would be very significant obstacles to Mr Kamara's integration into Sierra Leone, if deported there. The Upper Tribunal found that Mr Kamara had no family, familial links or friends in Sierra Leone. The passage of general application was expressed in these terms:
14. In my view, the concept of a foreign criminal's "integration" into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of "integration" calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life.
11. The Secretary of State's two criticisms of the Upper Tribunal's decision focussed on the Tribunal's failure to have regard to the facts that Mr Kamara was a young man in good health and capable of work which the Court of Appeal firmly rejected as this was so obvious a piece of the background finding of fact that it required no special mention. Secondly, it was said the Tribunal failed to give proper reasons to explain its conclusion that Mr Kamara should not be deported, notwithstanding he was a young man in good health and capable of work. That argument, too, was rejected. The fact that the claimant was a young man in good health and capable of work was insufficient to cancel out the reasons it gave for finding that there would be very significant obstacles to his integration into Sierra Leone.
12. The decision in Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 was published on 11 August 2016, a month before the grant of permission of Deputy Upper Tribunal Judge Freeman and many months after the determination in the instant appeal was promulgated (17 February 2016). Inevitably, when assessing very significant obstacles to the claimant's integration into the Ukraine, the First-tier Tribunal had not had the benefit of the contents of paragraph 14 of the judgment of Sales LJ. However, this was not a matter of law on which he was expounding and the sentiments there expressed, I am sure, would not have been considered by him as ground-breaking or initiating a new direction in approaching the issue of very significant obstacles to the claimant's integration into. Rather, it is a passage full of sound good sense drawing, as so often occurs in this jurisdiction, upon making an evaluation in broad terms, omitting nothing that is material to the sensitive task of making findings of fact and then reaching a reasonable and proportionate conclusion on the reality of the consequences for an individual of his return to his country of nationality. In Mr Kamara's case, the result was, I think, a reasonably obvious conclusion and the Secretary of State's attempt to make light of those consequences was properly resisted by the Court of Appeal.
13. In the context of the present appeal, the situation is markedly different. The broad evaluative judgment (as to whether the appellant will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life) was limited by the known facts. The appellant was born on 27 November 1985 and was 19 years old when she had entered the United Kingdom in April 2005. She had been brought up in the Ukraine. Her activities within the Ukrainian Catholic Church indicated her familiarity with Ukrainian life. The length of time in the United Kingdom was not such as to have erased that up-bringing or her association with Ukraine. The evidence did not establish any specific reasons why she would not be able to operate in Ukraine at a social level or to participate in life there.
14. Mr Hawkin did not pursue this element of the appeal before me. I am satisfied that the basis on which the grant of permission was made does not make out a case that the First-tier Tribunal Judge erred in law.
15. Instead, Mr Hawkin pursued the appeal on the basis of the several criticisms levelled at the First-tier Tribunal Judge's determination in his grounds to the Upper Tribunal.
16. I reject entirely the criticism directed to the judge's reasoning in paragraph 45. Quite correctly, the judge said that as Vladislav had not lived continuously for at least seven years immediately preceding the date of application, he did not need to go on to consider whether it was reasonable to expect him to leave the United Kingdom. However, sensibly, he did deal with that issue and reached an entirely rational conclusion that it was reasonable to expect Vladislav to leave the UK with his mother. This was part of the picture that the judge was in entitled to assess.
17. In paragraph 8 of the grounds, the appellant challenges the assessment of whether there are insurmountable obstacles to the appellant and her partner continuing their family life outside the United Kingdom. It is said that the fact that the appellant's partner is not Ukrainian is a strong indication of an insurmountable obstacle. I reject that submission. Where a couple who speak different languages embark upon a relationship, there is inevitably the need to acquire skills to communicate. There is nothing to suggest the appellant's partner, living in the United Kingdom, is unable to do so. Further, as Mr Clarke properly asserts, paragraph 8 of the grounds tends to reverse the burden of proof. It was for the partner to establish the obstacle.
18. Similarly, it is suggested that there was no indication that the partner would be permitted to enter or settle in the Ukraine or to gain employment there. This is not a matter of inference. It required the partner to make the case out. If he sought entry clearance as a spouse and met the relevant requirements in Ukraine, there is no reason why he should not be permitted to enter the Ukraine. It is speculation to assert that he would be refused entry. Similarly, having adapted to life in the United Kingdom apparently over the past 13 years, there is nothing to suggest he is incapable of work or incapable of adapting to life elsewhere.
19. The grounds also assert that it was not clear on what basis the judge could be satisfied that the appellant had friends and family in the Ukraine upon whom she could rely. However, the appellant had spent her childhood in the Ukraine and had only been in the United Kingdom since 2005. It was for the appellant to establish that her friendships, her acquaintances, her family and her other links with Ukraine had been dissolved over the last 10 years. She did not do so. I note that there is no express averment that the applicant has no family or friends you Ukraine; rather, the challenge is limited to the basis upon which the judge satisfied himself that she had.
20. In response to the Ground at paragraph 8 (v), the judge's comment that the partner may choose to work in the United Kingdom and make periodic visits to see his family 'as many other nationals do' was no more than a statement of fact. They do so voluntarily but there is no difference in principle between the partner who does so voluntarily and the appellant's partner who may be constrained to do so in order to maintain the relationship. He may not wish to do so and the family may prefer to remain in the United Kingdom but that is a far cry from claiming that to do so entails a violation of the human rights of any member of the family.
21. The fact that the Ukraine is engaged in hostilities with Russia falls far short of establishing that this amounts to an insurmountable obstacle to the appellant and her partner travelling to the Ukraine.
22. Paragraph 9 of the grounds challenges what are they a series of perfectly sensible considerations. It was open to the judge to make the obvious point that the experience that the appellant has gained over the last 10 years both by working and earning will put her at an advantage on return. Similarly, letters of support from the Ukrainian church do indeed, contrary to what is suggested in the grounds, make it plain that the appellant continues to benefit from social, religious and cultural ties with the Ukraine. There is no question but that the appellant failed to establish there were very significant obstacles in her integration into Ukraine.
23. The grounds go on to say that the judge's consideration of Article 8 outside the Immigration Rules was unlawful. In doing so, the appellant relies upon her absence from Ukraine are a period of over 10 years, the presence of her son Vladislav and a newborn baby as well as the presence of her partner in the United Kingdom. All of these factors were considered by the judge who properly concluded they do not make out a case that the appellants' removal would violate their human rights. There is nothing exceptional in requiring a couple who do not meet the requirements for settlement in the United Kingdom to leave the United Kingdom. Where the children will be accompanied by her mother that is protection against the violation of their human rights, at least in the circumstances of this case. Whilst the length of stay is, of course, a factor that has to be taken into account, it is not determinative and, given the context in which the appellant's immigration history has to be considered, it did not give rise to a viable claim that the appellants' human rights would be violated.
24. I am satisfied that the First-tier Tribunal made no error of law.

DECISION
The First-tier Tribunal Judge made no error on a point of law and the original determination of the appeal shall stand.

ANDREW JORDAN
JUDGE OF THE UPPER TRIBUNAL
18 February 2021