Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13452/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 6th February 2017
On 28th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LEVER

Between

christian paul rangcapan domingo
(ANONYMITY not retained)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bloomer of Counsel
For the Respondent: Mr Bates

DECISION AND REASONS

Introduction
1. The Appellant born on 7th November 1989 is a citizen of the Philippines. The Appellant was present and was represented by Mr Bloomer of Counsel. The Respondent was represented by Mr Bates, a Presenting Officer.
Substantive Issues under Appeal
2. The Appellant had made application for leave to remain in the United Kingdom outside of the Immigration Rules. The Respondent had refused that decision on 19th March 2015. The Appellant appealed that decision and his appeal was heard by First-tier Tribunal Judge Paul sitting at Manchester on 11th February 2016. The judge allowed the appeal under Article 8 of the ECHR. The Respondent made application for permission to appeal on 4th March 2016. It was asserted that the judge had been inconsistent in finding that there were no significant obstacles for the Appellant’s reintegration into the Philippines but thereafter finding there were compelling reasons for allowing the appeal outside of the Rules. Further it was said the judge had failed to properly apply the statutory provisions in Section 117. Permission to appeal was granted by First-tier Tribunal Scott-Baker on 27th July 2016. It was said that it was arguable that the judge had made positive findings in terms of the Appellant’s ability to speak English and being financially independent without reference to the fact that no positive right could be obtained from such findings and further that there were no findings under other aspects of Section 117 disclosing therefore an arguable error of law.
3. The question of whether or not an error of law had been made was decided by Upper Tribunal Judge Martin on 6th October 2016 where she found that the judge had not properly assessed all aspects of Section 117B of the 2002 Act. The decision was that the Appellant relied only on Article 8 outside of the Immigration Rules and it was accepted the Appellant could not meet the requirements of the Immigration Rules and therefore the First-tier Tribunal’s findings in relation to Article 8 needed to be re-made whilst findings in relation to the Immigration Rules were preserved. The matter was set down to be heard by the Upper Tribunal and the matter therefore came before me in accordance with that history.
Proceedings - Introduction
4. As the Appellant was present I firstly explained to him the nature of the proceedings and the way that they would be conducted. I next checked with the representatives the documents available to me in this case.
5. The Respondent’s bundle consists of the documents contained within the original bundle namely:
immigration history;
those documents listed at Folios A to H on the index sheet to the bundle;
refusal letter.
6. The Appellant’s documents consist of those documents listed at pages Annex A1 to Annex H151. Annex H represented the Appellant’s original bundle before the First-tier Tribunal.
7. I briefly discussed the issues with both Mr Bloomer and Mr Bates. It was agreed and conceded by Mr Bloomer that this appeal was under Article 8 of the ECHR only it being accepted the Appellant did not meet the requirements of the Immigration Rules.
Proceedings - Evidence
8. The Appellant was called to give evidence. He identified his name. He identified his witness statement of 31st January 2017 as being true and accurate. He further identified his original statement as being true and accurate and those statements were relied upon as his evidence-in-chief.
9. In cross-examination he confirmed that he was 16 when he first came to the UK having completed primary and secondary school in the Philippines. In the Philippines he was taught both in the local language and in English and was fluent in English when he arrived in the UK. He had one brother currently living in the Philippines who was living alone and planning to leave the Philippines. He said that he lived in the capital Manila. He had maternal grandparents in the Philippines but did not know if they continued to work. He knew no other people. He said he had now been in the UK for some ten years. He had lost some of his knowledge of his original Filipino language. He said the area of work where he was looking for employment was in the IT industry. He said his mother was a support worker at Glan Clwyd Hospital and his father was a maintenance engineer at a nearby business park. He said the only health issues were his mother had heart palpitations. She was still able to work.
10. I next heard from Jemma Domingo the Appellant’s mother. She identified her name. She also identified her current witness statement within the Appellant’s bundle and her previous original witness statement as both being true and correct and relied upon those as her evidence-in-chief.
11. In cross-examination she confirmed the Appellant was 16 when he came to the UK. They had lived in a rental property in the Philippines within Manila. She said her other son now rented a different property and he was a nurse. He was trying to get to the UK and was studying at the moment. She said her parents lived alone and she had a brother who had his own family who lived some distance away from her parents. She had not looked at whether the Appellant could return to the UK by applying and obtaining a work visa. She said the Appellant had lived with his father when earlier she had been living abroad to find work. She said that her current employment was within the ENT Department of the hospital. Her son in the Philippines supported himself. She said that he did agency work in nursing. She said they had strong family ties and had last visited the Philippines some six or seven years ago. Her son was currently studying to take the IELTS language test.
12. In re-examination she said that her parents were looked after by her father’s brother who was aged 74.
13. I next heard from Alex Domingo the Appellant’s father. He confirmed his name. He confirmed his witness statement was true and correct and relied upon that document.
14. In cross-examination he confirmed that his elder son lived in the Philippines but was planning to come to the UK. He said that he was qualified as a nurse. He said they would sometimes speak about once every two weeks, depends upon the signals through the telephones and time differences. He said he worked Monday to Fridays 9 to 5pm.
15. I then heard from three witnesses none of whom were questioned. Each identified their name and the witness statement they had kindly provided within the Appellant’s bundle. Those witnesses who attended were Mr Wilkie, Reverend Ramsey, and Mr Ruane. All three witnesses lived locally in the Rhyl area where the Appellant and his family lived and had been known to the witnesses for several years.
16. In closing I heard submissions on behalf of the Respondent. I referred to Section 117B that required to be examined as a whole when looking at matters under Article 8 of the ECHR. It was said that the Appellant was an adult and had nothing more other than the normal bonds of relationship between himself and his family. It was said that his private life had been formed when his status in the UK was precarious.
17. I finally heard submissions on behalf of the Appellant. In terms of assessment of family life between adult members I was referred to the recent case of PT (Sri Lanka) EWCA Civ 612. It was submitted that there was family life between the Appellant and his family. It was noted the parents were now UK citizens. The submissions were principally based on the principal of proportionality within the final stage test of Razgar.
18. At the conclusion of the hearing I reserved my decision to consider the documents and evidence submitted. I now provide that decision with my reasons.
Decision and Reasons
19. In this case the burden of proof lies on the Appellant and the standard of proof for both immigration and human rights issues is a balance of probabilities. The Appellant is within the country and I am entitled to look at all circumstances appertaining as at the date of hearing.
20. It has been a constant agreed fact that the Appellant does not meet the requirements of the Immigration Rules and therefore his appeal is based on an assessment outside of the Rules under Article 8 of the ECHR.
21. Given the recent Supreme Court decision in Hesham Ali [2016] and indeed given the directions as to how this case should proceed it is in my view entirely right that I assess the Appellant’s position outside of the Rules under Article 8 of the ECHR. Such an assessment requires an examination of the facts under the familiar five stage test set out in Razgar. There are however in my view two other matters that need to be carefully considered when looking at, in particular, the fifth and final stage test of Razgar.
22. The views of the Home Office representing the public interest need to be taken into account and the fact that the Appellant does not meet the requirements of the Immigration Rules is a factor that demonstrates the Secretary of State’s position that the public interest outweighs the Appellant remaining in the UK. Further there is a statutory requirement to consider all aspects of Section 117B of the 2002 Act. Case law indicates that if an Appellant falls adverse to one or more of those aspects of Section 117B then that is an adverse feature that impacts on the proportionality exercise. However if an Appellant does not fall adverse to any factors within Section 117B then that merely renders the position neutral rather than providing the Appellant with an advantageous position when examining proportionality.
23. I deal firstly with family life. In general terms and in line with Kugathas, family life in legal terms does not exist between an adult and parents unless there is some form of dependency. The case of PT (Sri Lanka) [2016] EWCA Civ 612 has overtaken Kugathas and has not set such strict conditions. In this case the Appellant has lived with his parent or parents since he was born. He came to the UK with his parents when he was 16, although it may have been possible for him to have stayed in the Philippines as his 18 year old brother did. He has not since arrival in the UK left the family home nor in any other regard begun an independent life away from his parents. He has been financially supported by his parents. There is a clear emotional tie between the Appellant and his parents, perhaps made stronger in the case of the mother because when the Appellant was young she spent much time away from him working in Saudi Arabia which prohibited family members joining. There is in my view a dependency and tie between the Appellant and his parents beyond the norm for an adult child and going beyond simple financial and accommodation dependency. I do not suggest it is necessarily a stronger family life that would exist between husband and wife or parent and young child but nevertheless in legal terms it exists as family life and needs to be considered when having regard to all factors within Article 8 of the ECHR.
24. I find in this case, and it has not been suggested otherwise, that the first stages in the five stage Razgar test have been met and it is a question therefore of considering proportionality under the fifth and final stage test of Razgar. In this respect I have carefully examined firstly Section 117B of the 2002 Act representing as it does factors that must be considered in terms of the Respondent’s position. In terms of Section 117B(1) I fully accept there is a strong need for the maintenance of immigration control in the public interest and indeed the removal of those who have no lawful right to remain within the UK is an important aspect of the Respondents job to ensure the same. The Appellant speaks excellent English, has a good education and lives in a household that has no financial dependency upon the State. He is also in a position to maintain that course of behaviour in terms of gaining employment. Accordingly there is nothing adverse when examining those aspects of Section 117B, it preserves a neutral position. In terms of Section 117B(4) and (5) the Appellant arrived in the UK lawfully with his parents in 2006. His parents have been lawfully within the UK ever since as a work permit holder and dependant and they are now both British citizens. The Appellant has been lawfully here as a dependant and thereafter as a student until 2015. I do not regard his private life as having been accumulated during an unlawful period although his position as a student is not settled and could be therefore regarded as precarious.
25. The Appellant is now 26 years old and has been in the UK for over ten years. I regard as not without some significance when examining family life that both his parents are British citizens and clearly the Respondent has therefore found that it is not in the public interest to have decided to remove them and indeed the granting of citizenship underscores the fact they are of value of society and recognised as such. The Appellant having entered the UK as a minor and dependent upon his mother’s position as a work permit holder would ordinarily have been granted citizenship in line with his parents, but for poor legal advice having been given in 2008. That poor advice places the Appellant in the current set of circumstances but does not detract from the fact that within the Immigration Rules in force, had the correct application been made, the Appellant would have in due course obtained citizenship as his parents have unless there was specific features of his behaviour mitigating against such grant, of which there is no evidence.
26. Those above features have some relevance when assessing the strength of immigration control maintenance in this specific case being on the one side of the proportionality balance.
27. It is also significant in this case to assess the strength of support for the Appellant and his family within the local community and from a broad and informed spectrum of that community. Decisions on proportionality in Article 8 cases are not exact sciences nor necessarily lending to the same conclusion being reached by each and every judge. Having seen and heard those witnesses additional to the Appellant and his family I am best placed to assess that evidence and its weight when looking at the issue of proportionality under the final stage test of Razgar. I also take account of the petition containing 400 signatures in support of the Appellant from the local community collected over the course of a single weekend. The level of support is not without some significance. The maintenance of immigration control is not a meaningless concept nor something merely to provide employment for lawyers. It is designed to protect and reflect the best interests of the citizens of the UK. If an informed and sizeable number of people within the local community who know the Appellant wish him to stay that is clearly not a decisive or necessarily even major feature but it would be wrong to ignore such views when considering the public interest in maintenance of immigration controls.
28. The Appellant has a continuing family life with his parents who are both British citizens. He has developed a deep and useful private life within the community built up over ten years and spoken about by those witnesses who provided evidence and witness statements. His status was I accept precarious as a student but at no stage unlawful. Indeed it need not have been precarious had he been given the correct advice in 2008.
29. This is not a case where the Appellant could not return to the Philippines or even experience huge problems on such return. He is in good health, well educated and has an ability to obtain work and care for himself in the Philippines irrespective of whether there are relatives present or not. Instead this is a case which hinges on the concept of proportionality in its purest sense and does not present with a set of facts and circumstances placing it at either far end of the spectrum. I do not suggest as I have indicated above that necessarily every judge would in the case of this nature automatically arrive at the same conclusion. When I consider all the evidence available this is a case, and perhaps a reasonably rare one, where it can be said that removal of the Appellant would be disproportionate and for those reasons I allow this case under Article 8 of the ECHR.
Notice of Decision
30. I dismiss this appeal under the Immigration Rules.

I allow this appeal under Article 8 of the ECHR.

No anonymity direction not retained.

Signed Date

Deputy Upper Tribunal Judge Lever

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make a fee award of any proper amount claimed.

Signed Date

Deputy Upper Tribunal Judge Lever