Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16900/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16th November 2016
On 30th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

ADAMA CEESAY CORR
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Kaihiva of Counsel instructed by Queens Park Solicitors
For the Respondent: Mr Avery, Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellant's appeal against the decision of Judge McDade made following a hearing at Stoke-on-Trent on 11th December 2015.
Background
2. The appellant is a citizen of the Gambia born on 27th April 1962. She entered the UK in September 1996 and overstayed. She claimed asylum on 16th August 2002 and was refused on 2nd March 2003. She then applied for leave as the spouse of a settled person and was refused on 12th November 2003. On 3rd May 2012 she applied for leave to remain on grounds of long residency and was refused on 16th January 2014. Further representations were considered and refused on 4th September 2014. Finally, she applied for leave to remain under the family and private life ten year route, and was refused again on 27th April 2015.
3. None of the appellant's immigration history finds its way into the brief determination from Judge McDade.
4. He concluded that she had not been in the UK for twenty years and could not meet the requirements of paragraph 276ADE. Neither could she satisfy paragraph EX.1(b) of Appendix FM. He said there were no compelling or exceptional circumstances which would cause him to consider the matter outside the Immigration Rules.
5. With respect to the appellant's daughter, he acknowledged that she was a student and currently living with her parents. However, she was an adult, not significantly dependent upon them, and there was no reason why her relationship with them could not continue by her visiting them in the Gambia.
6. The judge then recorded that he considered that the appellant and her husband had compounded previous dishonesty by attempting to mislead the Tribunal by seeking medical evidence in relation to the appellant's husband's epilepsy when in fact the solicitors had no such documentation. He dismissed the appeal.
7. Permission to appeal was sought on the grounds that the judge had failed to provide adequate reasons for his decision and had failed to properly consider the position of the appellant's daughter's dependency. Although permission to appeal was initially refused by Judge Nightingale, it was subsequently granted by Judge Allen on 20th July 2016, on he grounds that it was arguable that the judge had erred with regard to his findings as to family life with the appellant's daughter and as a consequence with regard to any proper evaluation of such private life as might be found.
8. On 1st August 2016 the respondent filed a reply defending the determination.
9. At the hearing Mr Avery accepted that the judge's reasoning was poor and that the matter would have to be looked at again.
Consideration of whether there is an error of law.
10. This is a scrappy determination clearly written in haste. At the date of the hearing, on any view, the appellant had been in the UK for nearly twenty years. She had an adult daughter, with whom she lived, and an elderly husband who suffered from epilepsy. The sentence "she is an adult and is not significantly dependent upon her parents" is not consistent with the evidence that she was living with them while she attended university.
11. The judge's determination is not an adequate resolution of the issues which were before him. Specifically, having found that the appellant's 20 year old daughter lived with them, it was incumbent upon him to consider whether or not there was family life deserving of respect and then to consider whether the appellant was entitled to succeed on that basis either within the Immigration Rules or, if there were sufficiently compelling circumstances, outside them.
12. Mr Avery did not seek to argue that the decision should not be re-made. I gave him time to look at the papers in order to prepare for the decision to be re-made.
Further Evidence and Submissions
13. An issue arose from a letter written by the respondent dated 4th September 2014 which states that the appellant had used various aliases and that she had applied for asylum in 1995. Mr Avery initially suggested that she had made an application under a false identity but acknowledged that there was no evidence to support that contention. Brief oral evidence was called. Mrs Corr said that she did not apply for asylum in another name. She said that she had been arrested before she claimed asylum and had given a different name, but when she went to the police station on the same day, she gave her real name.
14. Mr Avery relied on the reasons for refusal letter. The appellant had not been in the UK for twenty years at the time of the application. He accepted that she was in a genuine relationship with her husband and her now adult daughter but said that the level of dependency of the daughter was unclear. She was a long term overstayer, with a poor immigration history and overall, removal would be proportionate.
15. Mr Kaihiva submitted that, aside from the significant overstaying, the appellant did not have a poor immigration history. Certainly there was no evidence of criminality. On any view she had now been in the UK for over twenty years. She had a British child and a strong relationship with her husband, who was unwell. He was 73 years old and a pensioner. She had no links with anyone in the Gambia, having been here for twenty years. It would be disproportionate to separate this family.
Findings and Conclusions
16. The first issue to be decided is whether the appellant can meet the requirements of the Immigration Rules.
17. There has been some confusion about the dates when she last entered the UK but it does now seem clear that she has been here since September 1996, albeit that she visited for a couple of months in 1995 in order to see her husband here. Their daughter was born on 2nd December 1995. The couple had some matrimonial difficulties and were divorced but remarried in 2003.
18. The appellant applied to remain in the UK on the basis of her private life which falls to be considered under paragraph 276ADE(1) of the Immigration Rules. It is clear that as at the date of the application she had not lived continuously in the UK for at least twenty years and therefore cannot meet the requirements of 276ADE(1)(iii). Neither can she meet paragraph 276ADE(1)(vi) because she spent the first 34 years of her life in Gambia and although she says that she has few, if any, remaining links there, it is likely that she is still familiar with the language and culture of her home country.
19. I therefore turn to the question of whether there are particular circumstances which could be considered to be compelling or exceptional which require a consideration of this matter outside the Immigration Rules.
20. The first question is whether the appellant enjoys a family life with her British husband and British adult child. The relationships are not questioned. She clearly enjoys family life with her husband. So far as her daughter is concerned, the unchallenged evidence is that she still lives at home whilst attending university locally. Dependency between adults has to be more than the usual emotional ties between parent and child in order to constitute family life for the purposes of Article 8. Given that the appellant is providing accommodation for her daughter and they still live together as a family unit, I am satisfied that there is family life between the appellant, her daughter and of course her husband.
21. She has also clearly developed a private life over the twenty years that she has lived in the UK.
22. Removal would be a clear interference with the appellant's right to family life but would be lawful since she has been in the UK without leave since 1997. When deciding whether removal would be proportionate, I am obliged to take into account Section 117B of the 2002 Act which states as follows:
"(i) The maintenance of effective immigration controls is in the public interest.
(ii) It is in the public interest, and in particular in the interests of the economic wellbeing of the UK, that persons who seek to enter or remain in the UK are able to speak English, because persons who can speak English -
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(iii) It is in the public interest, and in particular in the interests of the economic wellbeing of the UK, that persons who seek to enter or remain in the UK are financially independent, because such persons -
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(iv) Little weight should be given to -
(a) a private life, or
(b) a relationship formed with a qualifying person, that is established by a person at a time when the person is in the UK unlawfully.
(v) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(vi) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where -
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the UK".
1. The appellant speaks English. There is almost no information in the papers about her finances, but her husband is a state pensioner. In the absence of any information from the solicitors, it has to be concluded that the appellant has not established that she is financially independent.
2. Section 117B(4) is clearly applicable. The appellant has been in the UK unlawfully and therefore little weight should be given to her private life or her relationship with her husband.
3. Paragraph 117(6) does not apply because the appellant has no qualifying child. All these matters are either neutral or count against the appellant.
4. Furthermore, it seems that she gave a false name following arrest, as confirmed in her oral evidence and which is referred to in the respondent's letter dated 4th September 2014.
5. On the other hand, Mr Avery accepted that the appellant had never been prosecuted, so far as he was aware, for having sought to mislead the immigration authorities. According to the letter of 4th September 2014 she applied for asylum in her own name. Her evidence was that she used a false name when arrested but corrected herself within the day. The respondent has not pointed to any information to counteract that assertion.
6. The letter acknowledges that the appellant has reported to immigration control successfully since March 2003. It is also clear that she has made a number of attempts to regularise her situation in the intervening years. Most importantly, she has now accrued twenty years' living in the UK and has a British husband and a British adult dependent child. Her husband suffers from a number of health issues. There is evidence in the papers of appointments at the cardiology unit at North Middlesex University Hospital. It is also clear that he suffers from epilepsy albeit that it is controlled by medication.
7. The fact is that the appellant has now accrued twenty years' residence, and it is the policy of the Secretary of State, as set out in the Immigration Rules, not to require a person who has lived continuously in the UK for at least twenty years to be removed. Given that policy, and taking into account the fact that she has complied with conditions set on her by immigration control since March 2003, I conclude that the public interest does not require removal in this case.
Notice of Decision
8. The original judge erred in law. His decision is set aside. It is re-made as follows. The appellant's appeal is allowed.

No anonymity direction is made.

Signed Date 30 November 2016

Deputy Upper Tribunal Judge Taylor