Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18763/2014

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 22 November 2016
On 06 December 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

HAFIZ AHMED
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J Elliott-Kelly, instructed by Paragon Law
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Bangladesh who was born on 24 August 1949. He came to the UK as a visitor with leave valid from 25 March 2010 to 25 September 2010. He overstayed.
2. On 4 April 2014 the appellant was encountered during an enforcement visit at a restaurant in Pewsey, Wiltshire. He was arrested as an overstayer. He was granted temporary release and was served, on that day with form IS.151A Part 2 which was a decision to remove him as an overstayer under s.10 of the Immigration and Asylum Act 1999. The notice of decision indicated that the appellant was entitled to appeal but only after he had left the United Kingdom.
3. Nevertheless, on 23 April 2014, a notice of appeal was lodged with the First-tier Tribunal on behalf of the appellant whilst he remained in the UK.
4. The appeal came before the First-tier Tribunal (Judge Page) on 29 October 2015 on the preliminary issue of whether the appellant had an in-country right of appeal. Before Judge Page it was submitted on behalf of the appellant that he had an in-country right of appeal against the decision to remove him by virtue of s.92(4)(a) of the Nationality, Immigration and Asylum Act 2002 (the "NIA Act 2002") on the basis that he had made a "human rights claim" during his interview by an Immigration Officer following his arrest on 4 April 2014.
5. Judge Page rejected that submission and concluded that there was no valid appeal before the First-tier Tribunal.
6. The appellant sought permission to appeal that decision and on 9 May 2016 the Upper Tribunal (UTJ Plimmer) granted the appellant permission to appeal on the basis that it was arguable that the appellant had made a "human rights claim" when he had asserted at his interview with the Immigration Officer that he had to remain in the UK to look after his father.
7. On 30 June 2016, the Secretary of State served a rule 24 response arguing that the judge was right to conclude that what had been said by the appellant in his interview with the Immigration Officer did not amount to a "human rights claim".
8. Thus the appeal came before me.
9. The applicable legislative framework is not a matter of contention. This appeal is governed by the provisions in force prior to the Immigration Act 2014.
10. There is no doubt that the appellant had a right of appeal by virtue of s.82(1) and (2)(g) of the NIA Act 2002. That is because the decision to remove the appellant as an overstayer under s.10 of the IA Act 1999 made on 4 April 2014 is an "immigration decision" falling within s.82(2)(g).
11. Whether or not that right of appeal is exercisable in-country or only out-country turns on the application of s.92 of the NIA Act 2002. Only if s.92 applies can an appeal be brought whilst an individual is in the UK (see s.92(1)).
12. The removal decision made against the appellant is not one of the immigration decision set out in s.92(2) such that s.92 automatically applies and any appeal may be brought in-country. However, s.92(4)(a) states that:
"This section also applies to an appeal against an immigration decision if the appellant -
(a) has made an asylum claim, or a human rights claim, while in the United Kingdom ?"
13. The phrase "human rights claim" is defined in s.113 of the NIA Act 2002 as follows:
"? a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under Section 6 of the Human Rights Act 1998 (c.42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights."
14. That is the definition currently in force even though it was amended by s.12 of the Immigration, Asylum and Nationality Act 2006, in effect to remove the need for the claim to be made to the Secretary at a place designated by the Secretary of State. However, that amendment has not been brought into force.
15. In this appeal, Ms Elliott-Kelly submitted that what had been said by the appellant to the Immigration Officer amounted to a human rights claim. It was, she submitted, a claim that he had family life with his father and, as his carer, he needed to remain in the UK to look after him. Ms Elliott-Kelly relied upon the appellant's second witness statement (signed at the hearing) where in para 4 he said this:
"During the interview, I was asked about my personal circumstances and reasons why I was in the UK over the time limit of my visa. I told the officers about my father and said I needed to look after him because he is old and not well. I explained that I am the carer for my father and I needed to stay in the UK to look after him."
16. Ms Elliott-Kelly accepted that the appellant had said that his father was currently in Bangladesh on a visit but that he would return and, as set out in para 6 of the appellant's statement, he would do so in a few weeks.
17. Ms Elliott-Kelly relied upon the decision of R (Alighanbari v SSHD) [2013] EWHC 1818 (Admin) in which Mr Stephen Morris QC (as he then was) sitting as a Deputy High Court Judge analysed the requirements for a "human rights claim". In particular, what the Deputy Judge said at [70], applying the statutory definition in s.113 of the NIA Act 2002:
"70. Thirdly, as to what constitutes a 'human rights claim' within the statutory definition, in my judgment, the following elements must be present on the facts: (a) a claim not to be removed from the UK; (b) an assertion of facts that could constitute an existing or prospective private and/or family life, the interference with which Article 8 ECHR protects; (c) an assertion that removal will interfere with that private and/or family life (i.e. that the, or a, basis upon which the claimant wishes to remain in the UK is the desire to maintain or build a private and/or family life). It is also arguable that there should also be a further element: namely, that, given the requirement of a claim that removal would be 'unlawful', there should be an assertion that the interference is in some way 'wrongful' or an interference with an 'entitlement', even if this need not be an express reference to a breach of rights under the HRA. However, on the facts of the present case, I do not need to decide this issue. "
18. Ms Elliott-Kelly submitted that what was said to the Immigration Officer was a human rights claim made to the Secretary of State falling within s.113 as it asserted a factual relationship between the appellant and his father potentially falling within Art 8 as "family life" and asserted, in effect, that his removal would interfere with it. Ms Elliott-Kelly submitted that that was sufficient and that whether the relationship was, in fact, established and whether any interference with it would be proportionate or not was a factual issue for a judge to decide in the in-country appeal against the s.10 removal decision.
19. On behalf of the Secretary of State, Mr Richards accepted that a claim made to an Immigration Officer could fall within the definition in s.113. He took no point on the "designated place" requirement and he did not seek to argue that an Immigration Officer was not, for these purposes, an agent of the Secretary of State. That latter position finds support in, and is entirely consistent with, the House of Lord's decision in R v Secretary of State for the Home Department, ex p Oladehinde [1991] 1 AC 254.
20. However, Mr Richards submitted that what had been said by the appellant did not amount to a human rights claim under Art 8. In particular, Mr Richards relied upon the fact that the appellant did not claim that his father was then in the UK. The appellant's words could not, he submitted, be understood as asserting that there was an interference with his family life in the United Kingdom.
21. Finally, Mr Richards did not seek to challenge the appellant's evidence as to what he said to the Immigration Officer. Mr Richards agreed that if I accepted Ms Elliott-Kelly's submissions that the words spoken by the appellant, as set out in his witness statement, to the Immigration Officer amounted to a human rights claim then the appeal should be remitted to the First-tier Tribunal for a hearing on the merits on the basis that the appellant did, in fact, have an in-country appeal.
22. In Alighanbari, the Deputy Judge accepted that whether a person had advanced a human rights claim falling within s.113 was "a question of substance, and not form" [69]. He further accepted that it was not necessary for an individual to refer expressly to the provisions of the ECHR or the Human Rights Act nor to advance his claim in formal legal terms. The correct approach was:
"In considering whether such a claim has been made, the court can and should take account of all relevant particular circumstances, including, for example whether or not the Claimant was legally represented at the relevant time, and including everything which was said by or on behalf of the Claimant."
23. The appellant was, of course, not legally represented at the interview with the Immigration Officer on 4 April 2014. I would add that it is not necessary for an individual to show he has a 'good' or a 'strong' Art 8 claim; merely that he is making one. The strength of the claim is a matter for assessment at the appeal.
24. In my judgment, what was said by the appellant, applying the approach in Alighanbari at [70], amounted to a "human rights claim" under Art 8.
25. First, the appellant clearly asserted that he needed to stay in the UK to look after his father. That was implicitly a claim not to be removed from the UK.
26. Secondly, the appellant asserted a relationship with his father, whom he said was old and not well, and that he was his carer and needed to look after him. Whilst a relationship between an adult offspring and a parent will not automatically amount to "family life", a close relationship of emotional ties and dependency is capable of amounting to "family life" for the purposes of Art 8 (see, for example Kugathas [2003] EWCA Civ 31). That was precisely what the appellant was asserting, albeit in brief terms, when he claimed that because of his father's age and health he was needed to care for him.
27. I do not accept Mr Richards's submission that it was necessarily destructive of a claim of "family life" on this basis that the appellant's father was currently in Bangladesh. That was, as the appellant made clear, only temporary and his father was to return to the UK where the appellant's words clearly import that he will continue to care for him.
28. Thirdly, the appellant's words clearly import that if he were not allowed to stay in the UK (i.e. if removed) that would interfere with his ability to care for his father and therefore interfere with his family life with his father.
29. In Alighanbari, the deputy judge left open whether it was also necessary, in order for there to be a "human rights claim" that the individual had asserted that his removal would be "unlawful" in the sense that he asserted that any interference would be in some way "wrongful" or an interference with an entitlement (see [70]).
30. In order to succeed in establishing a breach of Art 8, an individual must, of course, show that any interference was "not in accordance with the law". However, if an individual were required to assert specifically that his removal would not only breach his protected right to family or private life but also that it would be unlawful, that would come close to requiring an individual to make the very assertion which the deputy judge in [69] considered was unnecessary, namely expressly identifying the legal basis upon which his removal would be unlawful, in particular by virtue of s.6 of the Human Rights Act 1998. In my judgment it suffices if an individual expressly or impliedly asserts that his removal would interfere with his protected rights under Art 8 and that, as a result, he should be allowed to remain. To require otherwise would, in my judgment, essentially require an individual (perhaps unrepresented) to have a legal knowledge which cannot realistically or reasonably be expected of him. To require an individual to both positively assert that he should not be removed on a basis falling within Art 8 but also that to do so would be unlawful would, in my judgment, wrongly elevate "form" over "substance".
31. For these reasons, therefore, I am satisfied that the appellant made a "human rights claim" on 4 April 2014. As a consequence, s.92(4)(a) applied and the appellant had an in-country right of appeal against the decision to remove him made on the same day.
Decision
32. Thus, the First-tier Tribunal erred in law in concluding that there was not a valid in-country appeal before it. That decision is set aside.
33. As I have already indicated, Mr Richards accepted that, if that were my decision, the appeal should properly be remitted to the First-tier Tribunal for a hearing on the merits of the appellant's appeal.
34. The appeal is remitted to the First-tier Tribunal on the basis that it is established that the appellant has an in-country right of appeal in order that the appeal can be heard and dealt with on its merits. The appeal should be listed before a judge other than Judge Page.

Signed

A Grubb
Judge of the Upper Tribunal

Date 06 December 2016