Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17373/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th August 2016
On 6th October 2016

Before

UPPER TRIBUNAL JUDGE FREEMAN
DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

MR RAMESHBHAI PATEL
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. D Bazini; Instructed by E2W (UK) Ltd
For the Respondent: Mr. S Kotas; Home Office Presenting Officer

DECISION AND REASONS
1. This decision, to which both members of the panel have contributed, determines the appeal by the appellant against a decision of First-tier Tribunal Judge Baldwin promulgated on 30th November 2015, in which he dismissed the appellant's appeal against the decision of the respondent of 24th April 2015 to refuse Mr. Patel leave to remain on Article 8, family and private life grounds.
Background
2. The appellant and his wife are both Indian nationals. The immigration history of the appellant and his wife is set out at paragraph [4] of the decision of the First-tier Tribunal. The appellant's wife first arrived in the UK in June 2003 with a visit visa valid until 10th December 2003. The First-tier Tribunal Judge notes that the appellant's wife was later issued with a further visit visa on 14th August 2006, valid until 14th February 2007. Although paragraph [8] of the decision of the First-tier Tribunal records that the appellant claims that his wife has been residing in the UK since 2003, at the hearing before us, Mr Bazini confirmed that the appellant's wife last entered the UK using the visa issued on 14th August 2006, valid until 14th February 2007. She has remained in the UK unlawfully since 2007. The appellant's wife has made a number of applications for leave to remain in the UK, including an application made on 13th December 2012 in which the appellant was named as a dependant, all of which have been refused. She was included as a dependant upon the application made by the appellant for leave to remain in the UK on 22nd February 2015.
3. The appellant first entered the UK as a visitor in August 2006. He has since had a number of visit visa's and each time he visited the UK and then left to return to the family home and his employment, in India. He last returned to the UK on 24th July 2011 having been granted a visit visa valid until 11th January 2012. The appellant has remained in the UK since that visit visa expired. He too has made applications for leave to remain in the UK that have previously been refused. An application made on 10th January 2012 was refused on 17th April 2012, and was the subject of an appeal to the First-tier Tribunal. That appeal was dismissed on 6th August 2012. On the 22nd February 2012, the appellant made an application for leave to remain in the UK outside the immigration rules and it was the respondent's decision of 24th April 2015 upon that application that gave rise to the appeal before First-tier Tribunal Judge Baldwin.

The decision of First-tier Tribunal Judge Baldwin
4. First-tier Tribunal Judge Baldwin summarises the respondent's decision of the 24th April 2015, at paragraph [2] of his decision. The Judge heard evidence from the appellant and his daughter and the evidence relied upon is set out at paragraphs [6] and [9] to [12] of the decision. The relevant legislative framework and rules are referred to briefly at paragraphs [13] to [17] of the decision, and the Judge sets out his findings at paragraphs [20] to [26] of the decision.
5. The Judge starts his consideration of the appeal by noting at paragraph [22] of his decision that although the application was made only on human rights grounds, it is first necessary to address the factual matrix through the perspective of the Rules. At paragraphs [22] to [25], the Judge addresses the evidence before concluding at paragraph [26]:
"26. So far as Private Life beyond the household is concerned, the evidential canvas remains as blank as it was when the Appellant's previous Appeal was determined on the papers in July 2012. On the face of it, it would appear that the Appellant and his wife have shown no desire to integrate. Their daughter is still married and living with her husband and two daughters in their own home. The Appellant spent his first six decades in India, his wife c.48 years. They have both lived here illegally for years. It remains unclear where their son is currently living because it is claimed they have no contact with him. However, what is clear is that 2 of their 3 daughters are still in India. I do not find it credible that they would let their parents live on the streets. Nor do I find it credible that the Appellant has no claim to the family home he left when he came here or that the one brother he states he still has there, would leave him destitute. His wife is not a British citizen, has no settled status here and I find that there are no insurmountable obstacles preventing them from resuming the marital life they enjoyed in India until the wife decided to overstay in the UK. I do not accept that they are reliant on their daughter. If anything, the position would appear to be the reverse. The true position would appear to be that they presently live with the their daughter in return for the help they give her and for which the daughter would presumably otherwise have to pay someone who does have the right to live and work in the UK. Both the Appellant and his wife fall well short of the 20-Year requirement in relation to Private Life and the circumstances are neither exceptional, nor compelling, nor compassionate. They can maintain contact with their daughter and grandchildren in the UK using modern methods of communication and a return to India will allow them to re-establish close relationships with their other daughters in India and vice versa. The Appellant, I conclude, does not meet the requirements of the Rules and the nature of the family relationship they have with the one daughter in the UK and her husband and children is such that it would be neither disproportionate nor unreasonable for any of them to expect the appellant and his wife now to return to India where they have other children. Such an outcome would clearly be in the interests of effective immigration control given the flagrant disregard of all the adults concerned, for immigration Law."
The appeal before us
6. Permission to appeal was granted on 27th June 2016 by Upper Tribunal Judge Goldstein. The matter comes before us to consider whether or not the decision of the First-tier Tribunal Judge involved the making of a material error of law, and if the decision is set aside, to re-make the decision.
7. The appellant accepts in the grounds of appeal that he cannot meet the requirements of the Immigration Rules insofar as they relate to family life. Broadly stated, the appellant advances four grounds of appeal. The grounds of appeal were adopted by Mr Bazini in his submissions before us.
8. First, the appellant submits that there is simply no lawful consideration within the determination of paragraph 276ADE(1)(vi) of the Immigration Rules, and as such, the determination contains a material error of law. The appellant submits that at paragraph [26] of the decision, the Judge refers to there being nothing exceptional, compelling, compassionate or indeed no insurmountable obstacles - but these are not the legal tests under paragraph 276ADE(1)(vi). Rather the test is significant obstacles to integration, which the appellant submits, has not been lawfully addressed.
9. Second, the Judge failed to follow the five steps as set out in Razgar. Outside the Immigration Rules, the appellant submits that any consideration of Article 8, required a consideration of whether there is family life between the appellant (and his wife), their daughter and their son-in-law. Furthermore, Article 8 required a consideration of the relationship between the appellant and his grandchildren and the best interests of the children under Section 55. It is submitted that consideration of the best interests of the appellant's grandchildren should have been considered by the Judge in his assessment of proportionality. The appellant submits that the Judge failed to consider how removal of the appellant would impact upon the family in circumstances where the appellant's son-in-law, is registered disabled and suffering from spondylosis such that he is unable to work or move or walk long distances.
10. Third, it was incumbent upon the First-tier Tribunal Judge to address s117 of the 2002 Act, but beyond the reference to s117 at paragraph [20] of his decision, it is submitted that the Judge failed to consider the relevant provisions, in any assessment of proportionality.
11. Finally, the appellant submits that the Judge erred in his assessment of the facts. The appellant challenges the Judge's assessment of the evidence of the appellant and his daughter at paragraph [24] of the decision and the finding at paragraph [26] of the decision that he does not find it credible that the appellant's two daughters that remain in India, would let their parents live on the streets. The appellant submits that in reaching that finding, the Judge has failed to have regard to the cultural context in that the daughters that remain in India, would have no say in permitting their parents to live with them. The two daughters that remain in India live in homes owned by the parents of their husbands, and would not be permitted to have their parents join them. The appellant submits that the Judge similarly errs in his finding at paragraph [26] as to whether the appellant has a claim to his former family home.
Discussion
12. Before turning to the appellant's grounds of appeal, it is as well at this stage to set out the relevant legal framework. Paragraph 276ADE of the Immigration Rules sets out the requirements to be met by an applicant for leave to remain on the grounds of private life. Insofar as is relevant to this appeal, the rules provide:
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
?.
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK..
13. S55 of the Borders, Citizenship and Immigration Act 2009 requires the respondent to make arrangements for ensuring that her functions in relation to immigration, asylum or nationality are discharged having regard to the need to safeguard and promote the welfare of children who are in the UK.
14. Finally, the relevant provisions of ss.117A-117B of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") are as follows:
117A: Application of this Part
(1) This part applies where a court or Tribunal is required to determine whether a decision made under the Immigration Act -
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under Section 6 of the Human Rights Act 1998.
(2) In considering the public interest question the court or Tribunal must (in particular) have regard -
(a) in all cases, to the considerations listed in Section 117B, and
?
(3) In sub-Section (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
117B: Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom 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.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons -
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to -
(a) a private life, or
(b) a relationship formed with a qualifying partner,
That is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
?
15. We take the first and fourth of the grounds relied upon by the appellant together. Mr Bazini accepts that the appellant could only succeed in establishing a material error of law as to the Judge's consideration of paragraph 276ADE(1)(vi), if the appellant can establish that the findings made by the Judge at paragraphs [24] to [26] of his decision were not properly open to him.
16. The issue for us to decide is whether or not the Judge properly considered whether the appellant is able to meet the requirements of paragraph 276ADE(1)(vi) of the Immigration Rules. The assessment of whether the requirements of the rules are met must be completed in light of the evidence before the Judge and the findings made by him. In that respect we follow the guidance of the Court of Appeal in R & ors (Iran) v SSHD [2005] EWCA Civ 982. The Court of Appeal held that a finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence. A finding that is "perverse" embraces findings that are irrational or unreasonable in the Wednesbury sense, and findings of fact that are wholly unsupported by the evidence. On appeal, the Upper Tribunal should not overturn a judgment at first instance, unless it really could not understand the original judge's thought process when he was making material findings. We apply that guidance to our consideration.
17. We accept the general submission made by Mr. Bazini that when findings are made, actions which may appear implausible if judged by the standards of what one might consider appropriate in the UK, might in fact be plausible when considered within the context of the applicant's social and cultural background. In HK -v- SSHD [2006] EWCA Civ 1037, the Court of Appeal confirmed that rejection of an appellant's account simply because the facts he described were so unusual as to be thought unbelievable, is not a safe basis upon which to reject the existence of events that were said to have occurred within an environment and culture that were wholly outside the experience of the decision-maker.
18. We have carefully considered the findings made by the Judge and in our judgment it is plain that the Judge was entitled to reach the findings that he did. The Judge set out at paragraphs [10] to [12], the evidence of the appellant and his daughter. The evidence of the appellant was that he had lived in a joint family household until he left India on 24th July 2011. His elder brother and this brother's children then took over the home and the appellant claimed that he was told they would not be welcome on their return. The Judge records at paragraph [11] that orally, the appellant claimed that his elder brother had died 6-7 years ago. His brother's son had taken the family home over, and had told him to leave. He still had one of his brothers in India; but the property in which this brother lived was bought by the nephew who continued to live in the family home and the nephew would not let him live with his brother. The Judge records at paragraph [12] that the appellant's daughter claimed that her parents' home has been taken over by her 'Uncles'.
19. The Judge records at paragraph [12] the evidence of the appellant's daughter that her two sisters and brother have refused to support their parents since the brother married. The Judge records her evidence that her sisters in India are married, have no money of their own and their husbands would not want their wife's parents living with them. It formed no part of the appellant's case that it is culturally unacceptable for the appellant and his wife to live in India with their daughters, or that their daughters in India, would not provide any assistance to them, even in the short term, for cultural reasons.
20. The Judge found at paragraph [25];
"I do not find it credible that the Appellant's surviving relatives in India - which include their two other married daughters - would leave them homeless, and I do not find it proven that the Appellant has no claim to his former family home?."
21. At paragraph [26] the Judge states:
"?what is clear is that 2 of their 3 daughters are still in India and I do not find it credible that they would let their parents live on the streets. Nor do I find it credible that the Appellant has no claim to the family home he left when he came here or that the one brother he states he still has there would leave him destitute,?."
22. To put those findings into context, they must be read with what is said by the Judge at paragraph [24] of his decision:
24. The evidence of the Appellant and his daughter was broadly consistent but that is hardly surprising given their close relationship and co-habitation. Other corroborative evidence is notable for its absence. Neither the Appellant's wife nor the adult granddaughter provided oral evidence and there is no documentary evidence to show that six of the Appellant's seven brothers have died, no will to show to whom the family home was left or, absent a will, what the intestacy provisions are in India?.."
23. Mr Bazini criticises the Judge's approach to the evidence at paragraph [24]. He submits that the fact that the appellant and his daughter give a consistent account has not been given sufficient weight, and is undermined by the Judge's view that that the consistent account is hardly surprising, given the close relationship and cohabitation. He submits that there is no requirement for corroborative evidence and the Judge should not have rejected the account simply because there is no other corroborative evidence. We disagree. From a careful reading of paragraphs [20] to [26] of the decision, one can understand the Judge's thought process when he was making material findings in relation to the requirements that the appellant must meet to satisfy paragraph 276ADE(1)(vi) of the Immigration Rules. Although not expressly referring to matters in a cultural context, in our judgment it was open to the Judge to make the findings that he did, at paragraphs [25] and [26]. The evidence was that the appellant's daughters in India are married, have no money of their own, and their husbands would not want their wife's parents living with them. The mere fact that the Judge did not refer to whether the appellant's daughters in India would be culturally able to assist the appellant in our judgement is not, of itself, enough to justify setting the decision aside. The Judge's finding that he did not find it credible that the appellant's surviving relatives in India, which include his two other married daughters, would leave the appellant and his wife homeless, was made in the context of the Judge's consideration of whether there would be very significant obstacles to the applicant's integration into India.
24. We accept the submission made by Mr. Kotas on behalf of the Respondent. The first and fourth of the grounds of appeal amount to nothing more than a disagreement with the findings of the Judge. In our judgment the findings of the Judge were properly open to him on the evidence and it follows that it was open to the Judge to find that the appellant does not meet the requirements of the Rules.
25. We can also take the second and third grounds of appeal together. They both relate to the Judge's decision under Article 8 and his assessment of proportionality. The Judge does refer in his decision to the five stage approach set out in the House of Lords decision in R v SSHD ex parte Razgar [2004] 3 WLR 58. The immigration rules are said to reflect the respondent's view of where a fair balance should be struck between the right to respect for private and family life and public interest considerations relating to the maintenance of an effective system of immigration control (paragraph GEN.1.1 Appendix FM). The rules should be read in a way that reflects a proper interpretation of Article 8 of the European Convention. There may some cases where the rules do not address relevant Article 8 issues. In such cases it may be necessary to consider whether there are compelling circumstances to justify granting leave to remain outside the immigration rules: SSHD v SS (Congo) [2015] EWCA Civ 387. This should be assessed by reference to the five stage test outlined by the House of Lords in R v SSHD ex parte Razgar [2004] 3 WLR 58. It is conceded by the appellant that he cannot meet the requirements of the immigration rules insofar as 'family life' is concerned, and we have found that it was open to the Judge to find that the appellant cannot meet the requirements of the immigration rules insofar as 'private life' is concerned.
26. Article 8 of the European Convention protects the right to family and private life. However, it is not an absolute right and can be interfered with by the state in certain circumstances. It is trite law that the state has a right to control immigration and that rules governing the entry and residence of people into the country are "in accordance with the law" for the purpose of Article 8. Any interference with the right to private or family life must be for a legitimate reason and should be reasonable and proportionate.
27. We accept, as Mr. Bazini submits before us, that the Judge does not make any express finding as to whether there is family life between the appellant (and his wife), their daughter and their son-in-law, and that there is no express reference to the best interests of the appellant's grandchildren in the decision. However, insofar as the appellant's grandchildren are concerned, the Judge notes at paragraph [12] of his decision the evidence before him, about the appellant's two grandchildren and the baby that the appellant's daughter and son-in-law are expecting. The Judge notes at paragraph [24] that the adult granddaughter did not provide any oral evidence. We note that there was no written statement before the Tribunal from her. Having considered the limited evidence before him, the Judge states at paragraph [25] of his decision;
"25. ?.It was asserted that the adult grand-daughter feels a responsibility for her grandparents, as might be understandable if as would appear to be the case she was partly looked after by her grandmother from 2003 - a grandmother who had to live apart from her husband for several years in order to do so. If she does indeed feel she has a financial responsibility towards her grandparents, there would appear to be no reason why she cannot send money to them in India?."
28. In our judgement, the difficulty with the appellant's submission that the Judge erred in failing to take account of the best interests of the appellant's grandchildren, is that there was in fact no evidence before the Judge as to any impact that the appellant's removal from the UK would have upon his grandchildren. The Judge plainly considered the very limited evidence that was before him about the relationship between the appellant and his grandchildren and it is, in our judgement, unsurprising that the Judge makes no further mention of the best interests of the grandchildren or s55, in his decision.
29. The Judge refers at paragraphs [18] and [19] of his decision to the questions that he must determine under Article 8. He notes that the ultimate question is whether the refusal of leave to enter or remain in circumstances where the life cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, including those referred to in S.117 - prejudices the life of the appellant in a manner sufficiently serious to amount to a breach of the fundamental rights protected. At paragraph [26], the Judge concludes:
"26. ?The Appellant, I conclude, does not meet the requirements of the Rules and the nature of the family relationship they do have with the one daughter they have in the UK and her husband and children is such that it would be neither disproportionate nor unreasonable for any of them to expect the Appellant and his wife now to return to India where they have other children. Such an outcome would clearly be in the interests of effective immigration control given the flagrant disregard of all the adults concerned for Immigration Law.
30. Although the Judge does not expressly make a finding that the appellant enjoys a family and private life in the UK and that in all the circumstances of this case, removal would interfere with that family life in a sufficiently grave way as to engage the operation of Article 8 (points (i) & (ii) of Razgar) we are prepared for the purposes of this decision, to assume that the Judge found that Article 8 is engaged. That does not assist the appellant because the Judge did find that it would be neither disproportionate nor unreasonable for the appellant and his wife now to return to India where they have other children. Any failure therefore to adopt the five stage approach referred to in Razgar is therefore immaterial and would not affect the outcome of the appeal.
31. In Dasgupta -v- ECO [2016] UKUT 28 (IAC) a Presidential panel of the Upper Tribunal confirmed that a Tribunal's failure to make clear findings about family life is not per se erroneous in law, where its existence has not been contested in the respondent's decision and has not been challenged at the appeal hearing and the Tribunal's decision is not otherwise unsustainable in law. The Tribunal held that the question of whether there is family life in a child/grandchild context requires a finding of something over and above normal emotional ties and will invariably be intensely fact sensitive. Here, there was no evidence before the Tribunal upon which such a finding could be made.
32. In our judgement, the appellant also gains no assistance from any express failure to refer further to the provisions of s117 of the 2002 Act. It is uncontroversial that it is in the public interest to maintain an effective system of immigration control (s.117B(1)). The Judge noted at paragraph [26] of his decision that on the face of it, it would appear that the appellant and his wife have shown no desire to integrate in the UK and that they have both lived in the UK unlawfully for years. The appellant's command of English is poor. The appellant claims to rely upon financial assistance from his daughter. There is no evidence to show that the appellant is financially independent (s.117B(3)); but in any event, it would be a neutral factor if he were.
33. The appellant has remained in the UK as an overstayer for a number of years. He has remained in the UK unlawfully since 2011. Sections 117B (4) and (5) state that little weight should be given to a private life that has been established in the UK at a time when a person has been in the UK unlawfully or his immigration status is precarious. The public interest considerations outlined in section 117B are only one part of the proportionality assessment and may still be outweighed if the appellant can show that there are particularly compelling circumstances that might justify granting leave to remain even though he doesn't meet the requirements of the immigration rules. The appellant here did not meet the immigration rules and those factors that the Judge was bound to take account of in any assessment of proportionality weigh against the appellant. It follows that in our judgement, there is no merit to the second and third grounds of appeal advanced by the appellant
34. Having carefully considered the decision of the First-tier Tribunal Judge, the grounds of appeal and the submissions made to us by the parties, we dismiss the appeal.
Notice of Decision
35. The decision of First-tier Tribunal Judge Baldwin did not involve the making of a material error on a point of law and the decision stands.
36. No anonymity direction is applied for and none is made.
Signed Date 6th October 2016

Deputy Upper Tribunal Judge Mandalia

FEE AWARD

We have dismissed the appellant's appeal and there can be no fee award.

Signed Date 6th October 2016

Deputy Upper Tribunal Judge Mandalia