Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17246/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 November 2016
On 2 December 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Agnes [M]
(Anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr S Staunton, Home Office Presenting Officer
For the Respondent: Mr Z Arain, Legal Representative, ARA Immigration Services Ltd
DECISION AND REASONS
1. I see no need for, and do not make, an order restricting reporting about this case.
2. This is an appeal by the Secretary of State against the decision of the First-tier Tribunal, Judge Maciel, allowing on human rights grounds the appeal of the present respondent, hereinafter "the claimant", against the decision of the Secretary of State to refuse her further leave to remain exceptionally.
3. The facts relied on are distressing and I think can be described truthfully as tragic. The appellant has a daughter who is a British citizen and is a qualified nurse. Sadly, she is desperately ill. She has a condition set out in the papers which means that her life is probably close to its end. I do not wish to be unkind putting it in such dark terms but that is the truth of the matter and there is no point in being mealy-mouthed about it. It is well-understood by those involved.
4. The claimant has made several visits to the United Kingdom lawfully and most recently came into the United Kingdom with permission to see her daughter, who was then already known to be very gravely ill. For reasons that are obvious to anyone with any experience of life and any glimmer of human compassion and decency she wanted to stay and it must be emphasised that the Secretary of State has allowed her to stay for a time because the Secretary of State has given her exceptional leave. That was for a short time and it has now come to an end.
5. When considerations of public interest arise I have to bear in mind that the Secretary of State has allowed her to remain outside the Rules and has now decided not to allow her to remain outside the Rules. Mr Staunton was not able to explain to me what has changed. If there is a good reason for this change it has not been presented to the Tribunal.
6. There has been a short period of time when the claimant has been in the United Kingdom without leave. She did not make an application for further permission to remain before her existing leave ran out. It is not clear from the papers precisely how long she remained without permission but it is a period of a few weeks. This is in no sense a case of an appellant who has disappeared from the gaze of the Secretary of State and was only prompted to legitimise her position when there is an immediate threat of removal.
7. It is perfectly obvious why the First-tier Tribunal allowed the appeal. The First-tier Tribunal Judge decided that it was a disproportionate interference with the "private and family life" of the appellant and her British citizen adult daughter not to refuse her permission to remain. This is because as well as the human feelings which are obvious in this case there is very compelling evidence from a variety of authoritative sources that the appellant is providing valuable necessary practical nursing care for her daughter. She is looking after a variety of intimate needs that I need not particularise and it is no exaggerated to say that the claimant's care has probably prolonged her life.
8. The Secretary of State's appeal is based primarily on the First-tier Tribunal's refusal or failure to direct her mind to the requirements of Section 117B of the Nationality, Immigration and Asylum Act 2002. It is certainly very desirable in all cases where judges are making Article 8 assessments that the terms of the Act are acknowledged. It may even be necessary as a matter of law.
9. I have looked at that section with the help of Mr Staunton this morning. The section makes the point that the maintenance of effective immigration control was in the public interest. There is nothing in this judge's decision that is inconsistent with that. The judge was plainly dealing with an exceptional case.
10. The section tells us that certain things are in the public interest. They include that there is economic independence, the ability to integrate in society and the ability to speak English. All of these things are made out in this case. The appellant is plainly an English speaker, she is plainly integrated in society because there is evidence that she is finding time, with her daughter, to be associated with a church that is supporting her. The point is that there is an element of social life outside the home which is part of greater society. It is also a clear fact that the claimant is not a burden on the taxpayer. She is living off her daughter's savings and the benefits that are properly paid to the daughter. There has been no increase in payment as a result of the claimant's arrival. She has also benefitted from payments from a well-known Zimbabwean charity. All this was evidenced before the First-tier Tribunal and was clearly accepted if not discussed in some detail.
11. Section 117B requires that little weight should be given to a private life that is established at a time when a person is in the United Kingdom unlawfully. There is an element of that here because the person has been in the United Kingdom for a few weeks without permission. This is not a weighty point. The bulk of the private life has been established when the claimant has been in the United Kingdom with permission.
12. Further, in my judgment, this is not a "private life" case. I have said many times that the distinction between private life and family life is an invention of the Secretary of State and is not what is set out in the Convention which protects a person's "private and family life" but if it is to be thought of in these terms the relationship between adult children and their parents is not normally thought of as family life. However there are additional qualities here, particularly the considerable dependency as a result of the daughter's medical condition. I do not find that section 117B(4) is relevant to this but if it is it is only a minor negative factor.
13. Similar points are made about private life being established when a person's immigration status is precarious. It has certainly been precarious and so there is a better point to be made there for the Secretary of State but this is a quite exceptional case on its facts and the important relationship is "family" rather than "private" life.
14. It is also plain to me that there are considerable savings to the public purse as a result of the claimant's presence in the United Kingdom. This is not said lightly. It is evidenced. She is saving the taxpayer money by providing healthcare for her daughter that would have to come from another source.
15. One of the points made in the grounds is that the claimant's own circumstances might change and she might become financially dependent on the state. That is absolutely right but the answer to that, which is recognised in the Secretary of State's policies, is to constantly review the situation. People allowed to remain on human rights grounds only get short terms of leave. This situation might change and if it does a different decision might be justified but it is perfectly obvious to me that if the First-tier Tribunal Judge had gone through Section 117B as she was probably supposed to have done she would have reached precisely the same conclusion. The error is immaterial.
16. I indicated in my hearing room and I record here that I think it is regrettable that in the very sad circumstances of this case the Secretary of State said in the refusal letter that the claimant could maintain contact with her daughter via visits and modern methods of communication. This is undoubtedly right but is a rather crass remark in the context of the high degree of support and dependency that exists between the claimant and her daughter in this case.
17. The First-tier Tribunal erred immaterially.
18. I therefore dismiss the Secretary of State's appeal and I affirm the First-tier Tribunal's decision.

Notice of Decision: The appeal is dismissed.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 1 December 2016