Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18365/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8th February 2017
On 27th February 2017

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

TINA APPEAL
(no anonymity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Coleer instructed by Siraj Solicitors
For the Respondent: Mr L Tarlow, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of the First-tier Tribunal dismissing her appeal against the respondent's refusal to grant her leave to remain in the United Kingdom on Article 8 ECHR grounds, outside the Immigration Rules HC395 (as amended). The appellant is a citizen of Nigeria.
2. The appellant is a long term overstayer who came to the United Kingdom from Rome, Italy, in December 2001 with a visit visa. On 10 September 2002 she was granted 1 year's leave to remain as the spouse of her first husband, a British citizen. She has not had extant leave to be in the United Kingdom since that leave expired on 10 October 2003. The appellant did not embark for Nigeria, her country of origin, when her leave expired, but remained unlawfully in the United Kingdom for the next 13 years.
3. In July 2005, the appellant divorced her first husband. In May 2010, the appellant married a second British citizen husband, acquiring with that marriage a stepdaughter, who is now an adult. A spouse application was made in July 2010, with the support both of her second husband and her stepdaughter. In September 2010, the respondent refused that application, with no right of appeal. There was a reconsideration request and a pre-action protocol begun in May 2013, 3 years out of time: following a change of solicitors, that was taken no further. Again, the appellant did not embark for Nigeria, although she was aware that she had no leave to remain.
4. Nearly two years later, on 10 January 2015, the appellant made a further application for leave to remain outside the Rules, but the application was incomplete. The respondent served a form IS151A and a One-Stop Warning Notice. On 16th March 2015 the appellant produced a Statement of Additional Grounds citing human rights reasons why she should not be removed. She has been reporting fortnightly to an Immigration Officer since 31 March 2015.
5. On 30 April 2015, the respondent refused the appellant's application under paragraph 276ADE and Appendix FM, on the basis that there was no proper evidence of cohabitation, that the appellant had not shown that she could meet the requirements of the Rules, and that there were no exceptional circumstances for which leave to remain ought to be granted outside the Rules. The respondent considered the exceptional circumstances which had been advanced: some medical problems relating to fibroids, and the perceived difficulties of the parties living in Nigeria together.
6. The appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge M A Khan dismissed the appeal. He characterised the appellant's oral evidence as "extremely vague and evasive", but that is not supported by his record of the evidence given, as set out in the decision. The evidence as set out does not appear to be 'extremely vague' or 'evasive' and were it to be necessary, that is a finding with which it would have been proper to interfere pursuant to the guidance given at paragraph 90 in the decision of Lord Justice Brooke in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982.
7. It is common ground today that Judge Khan's consideration of both the oral and documentary evidence at [31]-[33] in his decision is unsatisfactory, and that he failed properly to consider the documentary evidence produced on behalf of the appellant, or the evidence of her stepdaughter. The stepdaughter is now an adult and has been living separately, with her own partner, since 2009.
8. To the extent that the appellant relies on her family life with her second husband, and her private life with her stepdaughter, I must have regard to sub-sections 117B(4) and (5) of the Nationality, Immigration and Asylum Act 2002 (as amended):
"117B Article 8: public interest considerations applicable in all cases
(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."
9. The position here is that from 3 December 2001 when the appellant arrived in the United Kingdom on a visit visa to the expiry of her spouse leave in relation to her first husband on 10 October 2003 she was in the United Kingdom precariously and that thereafter for thirteen years she has remained in the United Kingdom unlawfully. Her relationship with her second husband and her stepdaughter was formed when the appellant was here unlawfully. Accordingly, I can give little weight either to her private life or to her relationship with her present husband, who he is a qualifying partner as defined at Section 117D, because he is a British citizen. On that basis, even had a proper analysis been made of the evidence, this appeal was bound to fail.
10. I consider also the challenge to the exceptional circumstances finding. For the appellant, Mr Coleer does not seek to rely upon the exceptional circumstances advanced before the First-tier Tribunal. Rather, he argues that the progress of these proceedings, and the poor quality of the legal arguments made on the appellant's behalf, are capable of amounting to exceptional circumstances, and that this appellant should be given the opportunity of having her case competently argued. The inadequacy of the appellant's representation is not capable of amounting to exceptional circumstances, and Mr Coleer was unable to produce any authority to support this novel proposition.
11. If this appellant has arguments or evidence which have not yet been advanced and which might succeed, it remains open to her to make further submissions to the Secretary of State, which should be done without delay. However, as far as this appeal is concerned, despite the poor quality of the First-tier Tribunal decision, it was bound to fail. I therefore dismiss the appeal and uphold the First-tier Tribunal decision.
DECISION
12. For the foregoing reasons, my decision is as follows:
The making of the previous decision involved the making of an error on a point of law.
I do not set aside the decision but order that it shall stand.

Signed: Judith A J C Gleeson Date: 24 February 2017
Upper Tribunal Judge Gleeson