Tribunal decisions

The decision

IAC-AH-dp-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/13562/2015
ia/13565/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 7 March 2017
On 27 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

dedunu samdrika de silva munasir arachchige (first appellant)
resandu vishmitha suraweera suraweera
arachchige (second appellant)
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Symes
For the Respondent: Mr Bates

DECISION AND REASONS
1. The first appellant was born on 21 November 1977 and is a female citizen of Sri Lanka. She entered the United Kingdom in October 2013 as a student. The second appellant was born on 26 August 2006 and is her dependant. The first appellant completed a MSc degree on 21 January 2015 and applied for leave to remain. Her application was refused by a decision of the respondent dated 24 March 2015. The appellant appealed to the First-tier Tribunal (Judge Colyer) which, in a decision promulgated on 1 March 2016 dismissed the appeal. The appellants now appeal, with permission, to the Upper Tribunal.
2. The appellants have not been resident in the United Kingdom for twenty years or more and the respondent asserts that there is no obstacle to their returning to Sri Lanka (see paragraph 276ADE of HC 395). The first appellant claims that she will be at risk of violence at the hands of her husband in Sri Lanka. Before the First-tier Tribunal, the appellants’ case was advanced by their representative on the basis that (i) the first appellant faces a real possibility of suffering violence at the hands of her former partner/father of the second appellant; and (ii) the impact on the second appellant of returning to Sri Lanka.
3. The second appellant has been diagnosed as having autism spectrum and, in particular, speech difficulties. The First-tier Tribunal had before it a report of Dr Thirumaliai, a consultant forensic psychiatrist, which is dated 17 August 2015. Dr Thirumaliai found the first appellant suffering from mild to moderate degree of depression with post-traumatic stress disorder (PTSD). In his opinion, it would be “difficult [for the first appellant] to manage” if she were to return to Sri Lanka”. The judge found that there was nothing to indicate that the first appellant would not be able to obtain medical services on return to Sri Lanka to help with her PTSD, depression and hyperthyroidism. He found that the threat from the husband had “diminished and effectively ended” [44].
4. As regards the second appellant, the judge had before him a psychiatric report from Dr Newth a consultant child psychiatrist. The psychiatrist concluded that the child had a “clear history of witnessing abusive behaviour between himself and his mother”. She agreed that the child had “mild autism” spectrum disorder which was severely exacerbated by the abusive environment in which he was living. This has led to attachment difficulties with aggression and separation anxiety, increased problems relating to others. He has had “nightmares”. The child is anxious about going back to Sri Lanka in case his father wants him back. The judge accepted the findings of the psychiatrist [54] regarding the second appellant’s developmental delay. However, he did not find that “the child’s developmental problems [are of] such gravity as that to remove him from the United Kingdom ... will engage any of the Articles under the ECHR”. [54]. He found that the second appellant can resume education in his home country. At [57], the judge considered in detail the best interests of the second appellant in accordance with Section 55 of the Borders, Citizenship and Immigration Act 2009. The judge found that there were family members in Sri Lanka. The fact that the two appellants may have built up a network of friends in the United Kingdom indicated they would be able to do so again on return to their own country. The judge concluded that it will not be unduly harsh for the child to be removed with his mother as a family unit and whilst he is still at the relevant age.
5. The judge also considered the evidence of Mr John Edmond Cocker, the first appellant’s stepfather and the step-grandfather of the second appellant. He accepted that Mr Cocker has a close relationship with the second appellant.
6. At the hearing on 7 March 2017, Mr Symes, Counsel for the appellants told me that he relied only on the renewal grounds and not on the original grounds of appeal. First, it is asserted on the grounds that the judge failed to determine the Article 8 ECHR appeal calling to any recognised legal framework. Secondly, the judge failed to have regard to “relevancies” (sic). There were numerous allegations of mistreatment of both appellants by the husband. The judge had failed to deal with these properly. Threats by text messages had continued after the separation in 2009, indeed through until 2013. The extremity of the threats (the first appellant is scared that her husband will kill her or “throw acid on her”) had not been considered properly by the judge. Further, the judge has assumed there would be family members who could offer support in Sri Lanka. The 83 year old maternal grandmother in Sri Lanka would not offer help and according to the first appellant, because of the second appellant’s “aggressiveness and hyperactivity”. An uncle aged 60 years “suffers from various mental and physical problems”. The judge failed to take these matters into account as he also failed to consider that Mr Cocker suffers from a blood disorder which will prevent him from visiting Sri Lanka.
7. In addition, the appellant refers to the fact that her husband continues to live in the house in Sri Lanka which belongs to her. At [92] the judge dealt with the appellant’s claim that they had “diminishing assets or property in Sri Lanka”. She wrongly referred to the appellants as “resourceful adults” (one of the appellants is, of course, not an adult but a child). If the first appellant was required to take possession proceedings in Sri Lanka against her husband this would alert him as to her presence in the country and will also indicate where (following the repossession) she would be living, thereby exposing her to future risk. The appellant asserts that the judge failed to consider these matters adequately or, in some cases, at all. The appellant submits that Mental health facilities are wholly inadequate in Sri Lanka (see GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319) in particular at [453-457]. Finally, there would be no “network of friends” on whom the appellants could rely.
8. Having heard the oral submissions of Mr Symes and Mr Bates, for the respondent, I reserved my decision.
9. I agree with Mr Symes that the judge, in what is otherwise a long and detailed decision, has occasionally lapsed in to what may be categorised as “template” errors. One such occurs at [92] when he refers to both appellants as “resourceful adults”. I find that to be a minor error and not one which, in the context of the decision as a whole, indicates any lack of anxious scrutiny on the part of the judge. Potentially more serious, perhaps, is the judge’s statement at [70] that “Section 55 [of the Borders, Citizenship and Immigration Act 2009] does not override the Immigration Rules. Public interest remains the starting point”. Mr Symes submitted that Statute should take precedence over secondary legislation, viz the Immigration Rules. I agree. However, I agree also with Mr Bates who submitted that the judge is attempting no more at [70] to emphasise that Section 55 is not a “trump card” which overrides all other considerations. A reading of the whole decision makes that clear. The judge may have perpetrated infelicities of expression but I do not find that these amount to material errors of law in this decision.
10. In his oral submissions, Mr Symes emphasised that the first appellant would need to have contact with her husband (the couple are not divorced) if she were to recover her property in Sri Lanka which he currently occupies. Mr Bates, on the other hand, submitted that the evidence indicated that the first appellant would not need to live in that property or, indeed, to repossess it in order to live safely in Sri Lanka. Mr Cocker had indicated that he would provide finance to the first appellant if she was living in Sri Lanka. Mr Bates also emphasised the fact that the first appellant had separated from her husband in 2009 and had been able to support and accommodate herself in Sri Lanka with money derived from her employment there until 2013 when she had travelled to the United Kingdom to study. She would not need to repossess the house from her husband and the judge’s finding that the husband would not be aware that the first appellant had returned to Sri Lanka remained valid.
11. I prefer the submissions made by Mr Bates. I agree with him that the evidence plainly shows that between 2009-2013 the first appellant was able to find work and accommodate herself and the second appellant without apparent difficulty until 2013. She was then able to satisfy the provisions for financial independence required for students entering the United Kingdom. Had she required for financial reasons to repossess the house from her husband, then I find that she would have done so in the period 2009-2013. The fact remains that she did not need to do so in order to continue living in Sri Lanka. Moreover, whilst it may be the case that, by refraining from repossessing the house the appellant may be denied a valuable asset, I do not consider that is a relevant factor in determining risk on return, especially in light of her ability to access other funds. I am also aware of the abuse by the husband by means of text and email may have continued up until 2013. However, I do not find that the appellant has displaced the judge’s finding that, upon return to Sri Lanka, the husband will not be aware of the appellants’ presence in the country.
12. I agree that the judge’s approach to Article 8 might have been better structured but I am not satisfied that, read as a whole, the decision is flawed. The judge has properly considered Section 55 and the best interests of the child and has had regard to all the relevant evidence. I find that the judge has considered what he refers to as ‘the ultimate question’ that is
whether the refusal of leave to enter or remain in circumstances where the life of the family, could reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal prejudices the family life of the applicant in the manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8.
Ultimately, the judge has found that the appellants can enjoy their family life together in Sri Lanka. They need not suffer at the hands of the first appellant’s husband who had previously abused them because he will be unaware that they had returned to the country; in any event, his threats appear to have ceased. There is evidence that the second appellant has a close relationship with his step-grandfather, Mr Cocker. However, there was nothing before the judge to indicate that the closeness of the relationship is such that the weight which should be attached to the relationship in the proportionality assessment would inevitably determine that assessment in the favour of the appellant. The judge was aware of the relationship (he heard evidence from Mr Cocker) and deals with this evidence in his decision [76-77]. It cannot be said, therefore, that the judge has ignored the evidence and, likewise, it cannot properly be said that the dismissal of the Article 8 appeal was, on the evidence, an outcome which was not available to the judge. Another Tribunal may have reached a different conclusion but that is irrelevant. There is no reason for the Upper Tribunal to interfere with the First-tier Tribunal’s decision when that decision is not flawed by legal error.
13. As regards the psychiatric evidence, nothing is achieved by making a comparison of medical facilities in the United Kingdom and Sri Lanka. The fact remains that, if the child needs assistance, it is available in Sri Lanka notwithstanding the fact that the facilities may not be as readily available or the treatment as sophisticated as in the United Kingdom. I am drawn again to the judge’s finding (which was correct in my opinion) that the first appellant is an educated and resourceful woman who has shown her ability to support herself and her son from her own means through employment. Upon return to Sri Lanka, both appellants will also have the added advantage of financial assistance from Mr Corker. The judge was correct to find that they would be able to live in Sri Lanka without having contact with or, indeed, antagonising the husband and that the first appellant would be able to live in Sri Lanka without seeking to repossess her property.
14. For the reasons I have given, these appeals are dismissed.
Notice of Decision

These appeals are dismissed.

No anonymity direction is made.

Signed Date 20 March 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

As I have dismissed the appeals, there is no fee refund.

Signed Date 20 March 2017

Upper Tribunal Judge Clive Lane