Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13373/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision and Reasons Promulgated
On: 8th February 2017
On: 12th April 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Mrs Khairunnisa Rashidahmed Shaikh
(no anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr G. Brown, Counsel instructed by Parkview Solicitors
For the Respondent: Mr G. Harrison, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is a national of India born on the 1st June 1951. She seeks leave to remain in the United Kingdom on human rights grounds.

Background to this Appeal

2. The Appellant arrived in the United Kingdom in 2006 with a valid visit visa. She was accompanied by her husband and they had come to visit her adult children who lived in the UK. On the 24th December 2006, whilst still on that trip, the Appellant’s husband died. The Appellant’s visa expired in April 2007 but she did not return to India. She had by then made an application for indefinite leave to remain pleading compassionate circumstances. She was suffering from depression after the loss of her husband and wanted to be able to remain with her children.

3. The application was refused and the Appellant exercised her in-country right of appeal. The appeal was dismissed by Immigration Judge AW Devlin on the 28th August 2007. The Appellant did not leave the United Kingdom.

4. On the 14th June 2011 the Appellant was informed of her liability to detention and removal under section 10 of the Immigration and Asylum Act 1999. The Appellant did not leave the United Kingdom.

5. On the 5th November 2013 she was detained. On the 6th November 2013 she submitted an application to be granted leave to remain on human rights grounds. On the 21st November 2013 she was granted bail, and on the 19th December her application was refused with no right of appeal. The Appellant did not leave the United Kingdom.

6. On the 10th March 2014 the Appellant submitted a further human rights claim. This was refused with no right of appeal on the 7th April 2014. On the 16th April the Appellant was once again detained. She was released on the 25th April 2014 but did not leave the United Kingdom.

7. On the 18th August 2014 the Appellant made what was her fourth application for leave to remain on human rights grounds. The Respondent refused to grant leave and certified the claim as clearly unfounded under s94(1) of the Nationality Immigration and Asylum Act 2002. Judicial review proceedings were launched and on the 11th December 2014 the Respondent agreed to reconsider the certificate. It was the subsequent withdrawal of that certificate, and a fresh decision to refuse dated 18th March 2015 that led to the appeal in the First-tier Tribunal that is presently under consideration.

Determination of the First-tier Tribunal

8. The matter came before Judge Saffer. The Appellant pursued her appeal on the grounds that she qualified for leave under paragraph 276ADE(1)(vi) of the Immigration Rules. As Judge Saffer noted, “no other rule is even remotely applicable”. That provision required her to show:

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

9. The determination begins by setting out the facts as found by Judge Devlin in August 2007. In the Appellant’s favour these included an acceptance that she would be living alone, that her depression would get worse and that she had an emotional dependency on her family in the United Kingdom that went beyond the normal ties you would expect to find between adults. Against her case included the findings that she would not be destitute, she had no other health problems, her family would continue to support her financially and there was no real risk that she would try and kill herself.

10. Judge Saffer heard evidence from the Appellant’s daughter Saeedabanu Shaikh. Ms Shaikh explained the nature of the extended family here, including the fact that the Appellant has six grandchildren all living with her (her three children all live next door to one another in a joint family system). Ms Shaikh told Judge Saffer that her mother and father’s marriage had been for love and that as a result of the maternal family’s disapproval, the Appellant had long ago been disowned. She had led an isolated life as a result. She has a sister living in India but has not spoken to her for 27 years. Ms Shaikh told the Tribunal that the former family home in India was in a state of disrepair as there had been nobody in India to maintain it. It is not fit for habitation. The Appellant has been suffering from depression ever since her husband died and is now struggling to cope physically and mentally. Her health has deteriorated a lot since 2007.

11. The Tribunal’s findings began as follows:

“22. I accept that if she were returned to India the Appellant would be living alone, as I accept that her husband died in 2006 and that all her children live here. I accept that the family home is dilapidated and uninhabitable having seen the pictures and report. I accept that she has no contact with any family in India as I have no reason to doubt Mrs Shaikh’s evidence on the long standing estrangement. I accept that her husband’s family all live in Preston as I have no reason to doubt Mrs Shaikh’s word.

23. I accept, given the evidence of Dr Saleem, that she has a chronic adjustment disorder, anxiety, and depressive reaction. She developed a prolonged grief reaction following the death of her husband. I accept that if she did not have the emotional and practical support from her children there is a strong likelihood of her developing a relapse of her depression and associated complications, like suicidal thoughts and poor self-neglect. I accept that medical treatment care is available in India for those conditions given the unchallenged evidence supplied by the Respondent in the refusal letter”.

12. In respect of the Appellant’s physical ailments the determination notes that she has received treatment on the NHS, but found in the absence of any evidence to the contrary, that the Appellant would be able to find treatments in India.

13. From these facts the determination reaches the following conclusions. She could pay for medical care including psychological support. She has cultural and linguistic ties that would enable her to integrate and engage with the support available. Although she is emotionally dependent upon her daughter and other family members here, they could visit her and maintain contact through ‘modern means of communication’. If she wanted to visit her husband’s grave in the United Kingdom she could apply for a visit visa. The Tribunal then says this:

“Bearing all the above factors in mind, I agree with [the HOPO] that the Appellant would be likely to suffer obstacles if she was removed from the United Kingdom. However given her representatives failure to deal with the core issue of the availability of treatment for her physical and mental health needs and the availability of care such as through a care home or with a carer in privately owned of rented accommodation in India, she has failed to establish that the obstacles would be significant let alone very significant.”

The appeal under the Rules is thereby dismissed.

14. The Tribunal states [at 34] that the “rules do provide a complete code” and that there is therefore no scope for consideration of Article 8 ‘outside of the rules’. Even if there was, the appeal fell to be dismissed for the same reasons applicable under the Rules.

The Appeal

15. I granted permission on the 28th June 2016.

16. The Appellant’s first ground had been that the First-tier Tribunal erred in “placing inappropriate weight on the lack of supporting evidence”. Complaint was made that the Tribunal only had before it the Respondent’s Country of Origin Information Report which could not be “cherry picked” to reach a proper conclusion on whether health care was available to the Appellant. I refused permission on this ground. It is for the Appellant to produce evidence to support any assertion that she makes. If she makes the assertion that there is not in India treatment for such basic conditions as glaucoma it is for her to prove that with reference to evidence. She did not produce it, and in those circumstances the Tribunal was perfectly entitled to rely on the only evidence it did have, namely the COIR. I note for the sake of completeness that this ground was neither drafted by, nor pursued, by Mr Brown.

17. Permission was granted on the second and third grounds: that the determination takes a flawed approach to paragraph 276ADE and Article 8 in general. At a hearing on the 5th October 2016 I heard submissions on those matters and in a written decision dated 17th November 2016 I set the decision aside for a material error of law. My reasons are set out below.

18. The appeal was reconvened before me on the 8th February 2017 and there has been an unfortunate and regrettable delay in promulgating the re-made decision: this was due to IT failure and the parties have my apologies for the length of time that they have had to wait for this decision.

Error of Law

19. The matter in issue was whether the evidence established that the Appellant had shown that there were “very significant obstacles to her integration” in India. The reasoning of the First-tier Tribunal is set out above. The primary criticism made of that reasoning is that the Tribunal set the bar too high in its interpretation of that term, and consequently that its conclusions are perverse. It is further contended that the Tribunal’s intense focus on the Appellant’s physical needs obscured what was in fact the central plank of her case: her emotional dependency upon her family, in particular her daughter, and the social isolation that she would experience upon return, alone, to India.

20. There is little authority that sheds light on how the current version of 276ADE(1)(vi) should be interpreted. In Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 00060 (IAC) the Tribunal gave guidance on the original incarnation of the provision but there has been limited judicial comment on the Rule since the test was changed from one of “no ties”. In Bossade (ss.117A-D-interrelationship with Rules) [2015] UKUT 415 (IAC) the Tribunal found – albeit in the context of the statutory provisions on deportation – that the term imported a “stringent” test. Applying it in the case of a foreign criminal who had lived in the UK since he was four years old, the panel said this:

“57. But the paragraph 399A(c) test is more stringent: it is not met simply by showing that a person has no close family ties in the country to which it is proposed he is deported; it requires “very significant obstacles to…integration” to be shown. In our judgement the obstacles the claimant faces do not meet this demanding standard. In relation to his command of language spoken in the DRC, it was his own mother’s evidence that he had been brought up in a household where French was spoken. The DRC is a Francophone country. In any event, it was not suggested on his behalf that there would be any reasons related to physical or mental inability preventing him from learning the local language or dialect. As regards his lack of knowledge of the culture, whilst it was his evidence that he identified with British culture, it was not suggested he had specifically rejected or no longer understood his cultural origins. Furthermore, as regards lack of family ties, he is now a young adult and the skills he has acquired through attending classes in prison will assist him in being able to earn a living without the need to be a dependant. Further, we agree with Mr Jarvis that it is reasonable to infer that his mother and/or other relatives here will seek to help him financially, at least until he has had time to find his own feet. We agree with Mr Jarvis that it has not been shown that he would be prevented by reason of any physical or mental ability from developing social and cultural ties in the DRC. He is young, able-bodied and of an adaptable age”.

21. In the Secretary of State’s guidance on this rule, Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life: 10-Year Routes August 2015, the Respondent instructs caseworkers that the starting point should be the presumption that integration will be possible. It is for the applicant to introduce evidence to demonstrate that it is not. A number of factors can be considered, for instance linguistic, familial, cultural and social ties to the destination country, but the focus should, in the Respondent’s view, be on the extent to which it is possible for the applicant to enjoy an Article 8 private life if removed from the United Kingdom:

A very significant obstacle to integration means something which would prevent or seriously inhibit the applicant from integrating into the country of return. The decision maker is looking for more than obstacles. They are looking to see whether there are “very significant” obstacles, which is a high threshold. Very significant obstacles will exist where the applicant demonstrates that they would be unable to establish a private life in the country of return, or where establishing a private life in the country of return would entail very serious hardship for the applicant1.

(emphasis added)

22. The ambit of ‘private life’ within the meaning of Article 8 is broad, and famously not susceptible to exhaustive definition. I would suggest that it might in the context of this rule encompass the right to work and earn a living: one can envisage a case succeeding under this provision where it could be shown that removal would result in destitution and a serious deprivation of basic socio-economic rights. It might also include the right to respect for an applicant’s religious faith, for instance where an applicant could show that expression of his religious identity and belief would be prohibited in the receiving state.

23. In the present case the focus of the Appellant’s submissions was her inability to enjoy personal relationships in India. Although she did ask the Tribunal to weigh in other factors, such as her housing and health problems, her dislocation from her family, or rather her inability to replace those connections, was her primary concern. It is long-established that the term ‘private life’ encompasses “the physical and moral integrity of the person”2 and that this must include, fundamentally, the right to establish and develop relationships with other human beings: see for instance McFeeley v United Kingdom3 , Pretty v United Kingdom4 or the opinion of Judge Martens in Beldjoudi v France5. It was the Appellant’s case that she could demonstrate that there were in the particular circumstances of her case, very significant obstacles to her establishing such relationships back in India. This went to the core of her enjoyment of her right to a private life.

24. The Tribunal accepted that the Appellant was a widow with all of her children (and their children) permanently settled in the United Kingdom. It accepted that she had been estranged from her natal family for many decades and that she has no contact with any of them [at 23]. It appeared to accept the contention that the Appellant’s private life upon return would be limited to maintaining her existing relationships via “modern means of communication” [at 29]. There is reference [at 27] to the fact that her “linguistic and cultural ties” to India would enable her to “access support” but it is entirely unclear what that support might be: in the context of that paragraph I understand that to be a reference to her ability to access services such as seeing a doctor. I cannot see where in the determination the Tribunal has evaluated whether or not the Appellant would be able to form new relationships with other human beings in India. That being the central plank of her case, it was an error of law to omit to do so.

25. What the determination does focus upon are the Appellant’s physical health complaints. These are given little weight, and quite rightly so. Although they are no doubt of great concern to her and her family, I can see no justification for interfering with the Tribunal’s conclusion that there are doctors in India capable of offering treatment for these conditions and that her family can help her pay for them. In its emphasis upon these matters the Tribunal does appear however to have conflated the test in 276ADE(1)(vi) with the requirements of the Rules as they relate to adult dependent relatives: see for instance at paragraph 31 as set out above. The Appellant’s case was not based simply upon her physical needs, but rather her emotional or psychological ones.

26. In this regard the Tribunal accepted the evidence of a Consultant Psychiatrist Dr P Saleem that the Appellant is suffering from “chronic adjustment disorder, anxiety and depressive reaction”. It found as fact that she had suffered a prolonged grief reaction following the death of her husband and that that the removal of her family support would result in a “relapse of depression and associated complications, like suicidal thoughts and poor self-neglect” [at 23]. At 27 it discounts the possibility that the Appellant would actually kill herself on the basis that professionals could be made aware of this risk and take the steps appropriate to ameliorate such risks. Reference is made [at 37] to GS6 and N7. Again, the Tribunal appears here to be applying the wrong test. This was not an Article 3 suicide case. The Tribunal was rather being asked whether the Appellant met the terms of the Respondent’s policy as expressed at paragraph 276ADE(1)(vi).

27. For these reasons I find the Appellant’s second ground to be made out and the determination is set aside for that reason.

28. The third ground was that the First-tier Tribunal had erred in its self-direction that there was in effect no room for an Article 8 assessment outwith the Rules. Mr Harrison submitted that it whilst it might be difficult for such a claim to succeed, the First-tier Tribunal had been wrong as a matter of law to conclude that paragraph 276ADE is a ‘complete code’ for the assessment of private life claims. To that extent he invited me to include this matter in my remaking.

The Re-Made Decision

29. At the reconvened hearing I heard further evidence from the Appellant’s daughter Saeedabanu Shaikh. Ms Shaikh confirmed the evidence that she had given to Judges Devlin and Saffer, that the family home is in disrepair and that she has no idea whether it is even still standing. The house had been built by her father but the land on which it stood was rented. Ms Shaikh said that her mother had only a limited social life in the village where she lived. She had no contact with her own family, and if her mother had enjoyed friendships with other women in the neighbourhood they were not strong ones: in the eleven years that her mother has been in the UK she had not, to her daughter’s knowledge, had any contact with anyone from ‘back home’. The Appellant kept purdah and did not really go out without her husband, upon whom she was very dependent. They had been very close. Ms Shaikh’s father’s family all lived in the UK, mainly in Preston. She herself came to this country aged 16 in order to marry (I queried this since her entry for that purpose would have been contrary to the immigration rules, even then: Ms Shaikh confirmed that this was the correct date). Her whole family, including her children, are settled here. They are all British now.

30. In respect of finances Ms Shaikh accepted Mr Harrison’s suggestion that she and her brothers in the UK would be able to provide for their mother should she have to go home. Obviously they have to pay for her upkeep here and would do the same in India. If she needed medicines or other medical treatment they could pay for it. It would not be to the standard available in this country but that is not their primary concern. The real issue is that the Appellant doesn’t trust anyone outside of her immediate family, and that is not something that can be resolved by money. She might be able to go to a clinic but she does not trust strangers, and this includes medical staff.

31. Ms Shaikh confirmed that her mother is suffering from depression. She was asked about the overdose referred to in the determination of Judge Saffer. He had recorded, at paragraph 27, that this had occurred in 2014, and he accepted Ms Shaikh’s evidence that this had been an accident. Ms Shaikh took issue with the way that her evidence had been recorded. She had said that her mother had not known what she was doing, and that she was depressed, but she had never considered it to be an accident. What had happened is that she had gone to work leaving her mother in the care of her daughter. She had received a call from her daughter saying that she could not wake the Appellant up. When Ms Shaikh returned home her mother had come round but was delirious. She was saying that she did not want to go back to India. She was upset and confused. She said she did not want to be without her family. They took her to the hospital where she was treated for an overdose of prescription medication. Reference to the ‘record of proceedings’ taken by Judge Saffer shows that this was correct. Ms Shaikh had not used the word “accident”: she had said that her mother was “confused and she did not know what she was doing”. This event had occurred after her mother had been detained in 2013 and has not been repeated since. She continues to take medication for depression, and intermittently sees a doctor for it. She is under the supervision of the Consultant Psychiatrist whom she last saw 2-3 months ago. She has seen him approximately 6 times.

32. In respect of her mother’s physical condition, it was Ms Shaikh’s evidence that it had significantly deteriorated since the hearings before Judges Devlin and Saffer. She is breathless climbing the stairs and requires assistance washing, dressing and sometimes going to the bathroom. She is mobile but requires someone to help her and uses a stick. This evidence was confirmed in a letter dated 14th December 2016 from the family GP Dr ZH Patel of the Issa Medical Centre. Dr Patel lists her physical ailments as hypertension, depression and cataracts. She has fluctuating blood pressure and osteo-arthritis which restricts her mobility. Dr Patel makes the perhaps obvious point that these are all chronic medical ailments likely to worsen with age.

33. I was provided with a report dated 12th January 2017 from Consultant Psychiatrist Dr Haroon Moosa of the Lancashire Care NHS Trust. He wrote the report following a consultation with the Appellant, and after having regard to her medical notes (he records all of the problems identified by Dr Patel and adds that the Appellant has a history of ischaemic heart disease, for which she is apparently under the care of a NHS consultant). Dr Moosa confirms the earlier diagnosis made by Dr Saleem. He believes that the Appellant has never recovered from the loss of her husband and that the support of her family has been instrumental in keeping her safe. He observes her to be struggling with symptoms including hopelessness, helplessness, self blame and guilt and that there would be a “significant risk” of the Appellant taking another overdose should the support and supervision of her family be withdrawn. If she were to be removed to India she would require close monitoring, and may even require a period in hospital to ensure her safety. He concludes that there is a strong likelihood of a serious deterioration in her mental health should she be returned to India.

34. Mr Harrison recognised the preserved findings that had been made by the First-tier Tribunal, but concentrated his submissions on the fact that the Appellant is someone who has had no leave to remain in this country for some ten years. Despite repeated directions and opportunities to do so, she has failed to return to India as she was required to do by the terms of her original visa. She was someone who could properly be said to have shown a flagrant disregard for immigration control. She would appear to have had extensive recourse to NHS services to which she has never been entitled. Should she be returned to India today she would have access to both housing and healthcare, since these could be paid for by her family. The family here was large. The Appellant has two sons as well as Ms Shaikh and they each have children, some of whom are now grown up. The Appellant also has the support of her late husband’s family who live in Preston. This is a large support network and if it was considered necessary, the family could take it in turns to spend time with the Appellant in India. The concerns about her loneliness and mental health could therefore be resolved that way.

35. I remind myself of the preserved findings. These are that the Appellant:

Would be living alone in India
Has no ties with her family in India
Has a Kugathas dependency on her family in the UK (ties that go beyond those normally found between parents and their adult children)

Suffers from depression, chronic adjustment disorder and anxiety. She developed a prolonged grief reaction following the death of her husband. If she did not have the emotional and practical support of her children there is a strong likelihood of her developing a relapse of her depression and associated complications, like suicidal thoughts

Is currently supported by her family and if returned to India would be maintained and accommodated by remittances from the UK
Has retained cultural ties to India and can speak the (a) language fluently
Could maintain her current relationships in the UK by ‘modern means of communication’
Has been in the UK since 2006

36. Nothing in the evidence that I have heard adds substantially to those findings, save that the psychiatric evidence remains unchanged.

37. Applying those facts to the applicable rule, I find as follows.

38. The Appellant is not particularly elderly. She is only 65 years old this year and in a different cultural context could be still working and leading a very active life. The evidence before me is that various factors have conspired to prevent the Appellant enjoying that sort of independence. She and her husband had married for love and this had led to a total dislocation from her own family, none of whom have spoken to her in many decades. In the neighbourhood of Surat where she lived she observed strict ‘Islamic’ custom of remaining indoors and only venturing out when accompanied by her husband. As a result, her world revolved around her family, and as her three children grew up and one by one all migrated to the UK, it shrunk to revolve around her husband and their very close relationship. That was the background to the ‘profound grief reaction’ that the Appellant experienced when her husband died in the UK whilst on a visit here. That bereavement has not been something that she has been able to recover from. If the Appellant did have some friends in her home area (I found Ms Shaikh’s denials of any such relationships to be somewhat implausible) it is of course the incontrovertible fact that the Appellant has lived in this country for some 11 years and I accept that she has not maintained contact with anyone from ‘back home’. I accept therefore that such relationships amounted to no more than acquaintances. She would therefore be returning to India without any social network at all.

39. The question is whether she would have the ability to establish such social networks once there. Judge Saffer found that the Appellant, being able to speak the language and being familiar with the culture, would be able to access services. She would be able to buy food and attend medical appointments. I accept Mr Brown’s submissions that this is a different matter from being able to re-establish a private life of any meaningful value. Unlike Mr Bossade, she is neither young, able-bodied or of an “adaptable age”. I am satisfied, on the basis of the medical evidence before me, that she has both physical and mental impediments to being able to integrate into Indian society. She is, on the basis of that unchallenged evidence, suffering from various physical ailments which have had the effect of increasing her already profound emotional reliance on her close family. I can find no reason to reject the assessment of the two consultant psychiatrists to have assessed the Appellant, that her psychological condition would suffer serious detriment if she were to be removed from her current environment. It is in their opinion likely that her current feelings of hopelessness and helplessness would increase to the point where she would be unwilling or unable to care for herself. It is perhaps obvious that this deterioration in her mental state would result in an inability to form new relationships. Her family may be able to pay for a cleaner, or for someone to take her to medical appointments, but the reality is that she would be extremely lonely, and her depression would deepen. She would face this isolation at a time in her life when her frailties – both physical and mental – were increasing on a daily basis. This social paralysis would, I find, reach the level of seriousness that would be required to engage the term “flagrant”. Her own mental condition would in effect prevent or seriously inhibit her from integrating into the country of return.

40. Mr Harrison suggested that in order to combat such difficulties the Appellant could rely on a ‘relay’ of support from the UK. That was not a matter explored in any great depth before me but I regard it as an unsatisfactory solution. Presumably it cannot have been the drafter’s intention that a private life claim could be defeated simply by the claimant taking his entire private life with him when he left the UK. The Appellant’s three children all now have children of their own and it would be hugely disruptive to their family lives if the mother or fathers in these families had to go to India on a regular basis.

41. I am satisfied that the test contained in paragraph 276ADE(1)(vi) would, on the very particular facts of this case, be met. That test does not require or invite any assessment of the public interest: cf the term “reasonable” at sub-paragraph (iv) [see MA (Pakistan) [2016] EWCA Civ 705]. The public interest is expressed in that rule at sub-paragraph (i), a link to the ‘suitability’ requirements in Appendix FM. The Secretary of State for the Home Department accepted long ago that those requirements were met: see paragraph 13 of the ‘reasons for refusal’ letter dated 18th March 2015.

42. Given my findings on the rule I can be brief in dealing with Article 8 ‘outside of the rules’ in the alternative. I accept, as did the First-tier Tribunals before me, that the Appellant enjoys a family and private life in the UK. There would be an interference with that life, as it is currently enjoyed, if she were to be removed to India. The removal of persons with no leave to remain is an action lawfully open to the Secretary of State, and it is one rationally connected with the legitimate aim of protecting the economy. The question is whether the Respondent could show the Appellant’s removal to be proportionate.

43. There is a very great weight on the Respondent’s side of the scales in this case. The Appellant has not had any leave to remain since 2006 and I accept Mr Harrison’s submissions that she and her family have deliberately avoided her removal to India on several occasions. They have shown a disregard for immigration control, and apparently considered it to be unreasonable that it applied to the Appellant: in her witness statement Ms Shaikh refers to how “unfair” it is that her mother is facing removal. It might be observed that it is “unfair” that she has managed to circumvent the rules applied to others by arriving as a visitor and simply refusing to leave; it might also be observed that it is “unfair” on the taxpayers of the UK that she has had extensive recourse to the NHS including the care of a consultant cardiologist. The Appellant speaks, as far as I have been made aware, very little English. She is not financially independent. The private life that she has developed in the UK – in particular her dependence on her children – has all been whilst she was here as a visitor, and thereafter unlawfully. The public interest factors set out in s117B(1)-(5) of the Nationality, Immigration and Asylum Act 2002 all have the effect of weighing heavily against her. On her side of the scales are the factors analysed above in the context of 276ADE(1)(vi). It goes without saying that her qualification under that rule would render her removal disproportionate. If the Secretary of State considers that her circumstances qualify her for leave to remain it follows that it would be disproportionate to remove her. If my decision on the rule had been otherwise I would have had considerable hesitation in allowing this appeal on Article 8 grounds. The reality is however that removal would be, for this Appellant, at her time of life and in the very particular circumstances of her bereavement and mental health issues, unjustifiably harsh. This would be a finely balanced decision indeed, but taking all relevant factors into account I would conclude that her removal would be disproportionate.

Decisions

44. The determination of the First-tier Tribunal contains an error of law and it is set aside.

45. The appeal is allowed on human rights grounds, the requirements of paragraph 276ADE(1)(vi) of the rules being met.

46. There is no direction for anonymity.

Upper Tribunal Judge Bruce
10th April 2017