Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16283/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 January 2017
Extempore judgment
On 26 January 2017

Before

UPPER TRIBUNAL JUDGE COKER

Between

Ms lansage vajiranginie chanddrika perera

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Yong, Counsel instructed by Sriharans Solicitors
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is the appeal of Ms Perera who had sought indefinite leave to remain on human rights grounds. Her application was refused by the Secretary of State and her appeal against that decision was heard on 28 June 2016. Her appeal was dismissed on 22 July 2016 and on 23 November 2016 she was granted permission to appeal.

2. The appellant relied solely upon Article 8. The grounds of appeal against the First-tier Tribunal decision did not challenge the decision taken by the judge that the appellant did not meet the requirements of paragraph 276ADE(vi) of the Immigration Rules HC 395 as amended. In his consideration of the requirements of 276ADE(vi) the judge considered the appellant's assertions and her submission that she would face very significant obstacles to integration into Sri Lanka given the cumulative effect of the lack of treatment facilities for mental health in Sri Lanka in tandem with a society riven by war and natural disaster in which the incidence of mental illness is high, the lack of opportunity for her to work in Sri Lanka with the attendant risk to her mental health and her ability to support herself, her estrangement from her family, her age which makes it harder for her to replicate social connections and her religious identity as a Pentecostal Christian. The judge went through each of those elements of her claim and made findings none of which have been challenged or sought to be challenged in the grounds of appeal. Although Ms Yong said that her instructions were today that there were elements of those findings which were disputed, permission was neither sought nor granted on any of those matters.

3. In particular one of the issues that she raised was that an application for an adjournment had been made to enable the person with whom the appellant is having a relationship to attend (it being referred to in paragraph 60(c) that he was unable to attend because he had a medical appointment on that day). There is no reference in the decision to a request for an adjournment on those grounds and there is no reference in the grounds seeking permission to appeal to an incorrect refusal of an adjournment. Any challenge to the adverse finding that was made by the judge in connection with the attendance of that person does not even get off the ground.

4. The judge found that there were no very significant obstacles to the appellant's integration into Sri Lanka. The judge, in paragraph 59, considers whether there were exceptional/very compelling circumstances which meant that the refusal would result in unjustifiably harsh consequences or that refusal would not be proportionate under Article 8. That is not the correct test. It is not a question of whether there were very compelling circumstances but whether there were compelling circumstances, but Ms Yong is left with the difficulty that there is no challenge to the findings under paragraph 276ADE(vi). The appellant does not meet the Immigration Rules and therefore in order to succeed on Article 8 there is going to have to be something that has not already been considered by the judge which should have been considered which could or would have made a difference.

5. The judge considers proportionality in paragraph 61 onwards. The judge makes the point that this is an appellant whose leave to remain in the UK has expired but she entered in order to study and that she wants to be able to remain in the UK. The judge specifically found that the appellant speaks good English and that she is capable of being financially independent. He also finds that, for the reasons that he gave above, he gave little weight to the private life formed because her immigration status was precarious. Ms Yong submitted that the appellant had leave to remain between 2008 and 2012. Thereafter she had 3C leave until about 2014 when her appeal against an earlier decision was dismissed. A very short time after that she made a further human rights claim and she was therefore for a very short period without leave. That however does not render her immigration status non-precarious. She came in as a student. She remained as a student. She then had 3C leave and at the time of this application she was an overstayer. Her stay throughout her time in the UK has been precarious and although the judge in paragraph 65 does not spell out the different periods of her leave that does not alter the fact that there is nothing wrong with those findings.

6. The judge then goes on to confirm that she does not have any criminal convictions and he concludes by saying in paragraph 67 "nevertheless, when taking into account my findings regarding the Immigration Rules the lack of exceptional/very compelling circumstances and all I know of the appellant, I find that the respondent's decision is proportionate and in the public interest of firm but fair immigration control." Although the judge made a finding that there was a lack of exceptional/very compelling circumstances, the findings that he made in connection with 276ADE(vi) are clearly significant and relevant to the issue of proportionality.

7. There is nothing in the appellant's case that has not been considered by the judge and the decision under Article 8 and the proportionality of her removal cannot be in doubt. The judge considered all the issues, took them all into account, and reached a decision that was plainly open to him that it was not disproportionate that the decision to refuse her claim and to remove her was not disproportionate. For these reasons I am satisfied that there is no material error of law in the decision of the First-tier Tribunal Judge that was promulgated on 22 July 2016 and I therefore dismiss the appeal.

Notice of Decision

The appeal is dismissed.

Signed Date 24th January 2017

Upper Tribunal Judge Coker