Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18999/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On Tuesday 24 January 2017
On Monday 30th January 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MR VIJAYTHEIVENDRAN PRATHEEPAN
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr V Lingajothy, Legal Representative, Linga & Co solicitors
For the Respondent: Ms A Brocklesby-Weller, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. There is no good reason to make an anonymity direction in this case.

DECISION AND REASONS

Background
1. The Appellant appeals against the decision of First-tier Tribunal Judge Anstis promulgated on 22 February 2016 ("the Decision"). By the Decision the Judge dismissed the Appellant's appeal against the Respondent's decision dated 1 May 2015 refusing him leave to remain on human rights grounds.
2. The facts of the Appellant's case are not in dispute. He is a national of Sri Lanka. He was born on 2 July 1993. He left Sri Lanka with his parents when he was aged four years. His parents fled Sri Lanka and went to India due to his father's involvement with the LTTE. His parents were granted refugee status in India and he was granted status in line with them. They remain in India. The Appellant says that he is unable to return to India now as his status will have lapsed.
3. The Appellant first came to the UK on 8 May 2010 with leave as a student. That leave expired on 25 May 2011. Since arriving in the UK he has lived with his paternal uncles who are settled in the UK. One of those uncles has been financially supporting the Appellant and his parents prior to the Appellant's arrival in the UK as the Appellant's father suffers from medical problems.
4. On 23 May 2011, the Appellant sought indefinite leave to remain as a dependent relative. That application was refused on 4 August 2011. He appealed and his appeal was ultimately dismissed by Deputy Upper Tribunal Judge Plimmer on 19 November 2012. Her decision is not directly relevant to the issues which remain in this appeal but for completeness I record that she found that the Appellant would not have to return to Sri Lanka as she did not accept that there was evidence to show, as the Appellant asserted, that he would be unable to return to India.
5. Following the dismissal of his appeal, the Appellant remained in the UK. He made two applications for an EEA residence permit, both of which were refused in 2013 and 2014. Finally, he made the application for indefinite leave to remain which forms the basis of the Respondent's decision under appeal. The Appellant relies principally on his relationship with his paternal uncles and the children of one of those uncles (his cousins). He also points out that he has not lived in Sri Lanka since the age of four and has no-one there, that he says that he cannot return to India and that he says that he may be at risk in Sri Lanka due to his father's previous history. He has not though made a protection claim.
6. This is an appeal which proceeds under the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014. Accordingly, the decision under appeal is a refusal of a human rights claim. There is not therefore any associated notice of removal specifying the destination to which the Appellant would be returned if his appeal fails.
7. The Judge found that the relationship between the Appellant and his relatives, whilst close, was insufficient to engage Article 8 ECHR, based on the case law concerning relationships between adult relatives [26]. He did not accept either that the Appellant's evidence disclosed that his private life would engage Article 8 [27]. He went on to record however that, even if he had found that Article 8 was engaged and there was a sufficient interference by reason of the refusal, he would nonetheless have found the Respondent's decision to be proportionate [30].
8. Permission to appeal was granted by Upper Tribunal Judge Bruce on 9 December 2016 on the basis that it was arguable that the Judge had erred by failing to take into account the Appellant's relationship with his uncles when considering the Appellant's private life. The appeal comes before me to determine whether there is an error of law in the Decision and if so to either re-make the decision or remit to the First-tier Tribunal to do so.

Discussion and conclusions
9. Before turning to consider the Appellant's grounds on which permission has been granted, it is worth recording what is not in issue before me.
10. Firstly, the Appellant has not claimed asylum. The Appellant's barrister who appeared in the First-tier Tribunal did make submissions based on Article 3 ECHR. Those are dealt with at [31] of the Decision. The Judge dealt with that submission on the basis that there were presently no directions to remove the Appellant to Sri Lanka. He found in any event that the evidence did not support a claimed breach of Article 3. Leaving aside that the Judge was almost certainly entitled to reach that view on the limited evidence before him, there was not a challenge to that finding made to this Tribunal. It was raised in the grounds seeking permission to appeal from the First-tier Tribunal but the Appellant did not rely on those grounds when seeking permission to appeal from the Upper Tribunal and it therefore plays no part in the permission grant.
11. Secondly, the Appellant did not suggest that he could meet the Immigration Rules in relation to his family or private life. It is undoubtedly the case that he could not meet the Rules under Appendix FM in relation to his family life given his age and the nature of the relationship relied upon. He did not though seek to rely on paragraph 276ADE of the Rules. As Judge Bruce noted when granting permission, therefore, "it has apparently been conceded on his behalf that there are not 'very significant obstacles to his integration' in Sri Lanka". The Appellant was represented by Counsel at the hearing before the First-tier Tribunal. It must therefore be assumed that it was a deliberate decision to pursue the case on the basis that it was argued. Counsel expressly accepted that the Appellant could not succeed under the Immigration Rules ([5] of the Decision).
12. For those reasons, Mr Lingajothy's submissions were necessarily limited to reliance on the errors asserted in relation to the Judge's consideration of the Appellant's relationship with his uncle on the basis of Article 8 outside the Rules. Mr Lingajothy directed my attention to the factual basis for the Appellant's claim in this regard which is set out at [18] and [19] of the Decision as follows:-
"[18] I accept what I have been told by the Appellant about the nature of his relationship with his uncle's daughters. Indeed, this does not seem to be disputed by the Respondent. He has had a degree of responsibility for them in delivering and picking them up from school while their parents are at work, and in consequent work such as supervising or assisting with homework. He has done this since his arrival in the United Kingdom in 2010, except for the recent period during which he has been living in Harrow. However, the girls have always had their parents available during this time, and he has never had any sort of parental role in their life.
[19] The Appellant's uncle has described the Appellant as like a son to him. I have no doubt on what I have heard that they have a close and fond relationship, with the Appellant's uncle being particularly protective of him. I also accept that the Appellant's uncle had a role in financially supporting him while he was growing up in India. However, I have not heard of the Appellant's uncle providing anything beyond financial support while he was in India, or, for instance, visiting or playing some other substantial part in his life during his time in India. The current close relationship between them only appears to have started on the Appellant's arrival in the United Kingdom, by which time he was nearly 17."
13. Having directed himself in relation to whether that relationship could amount to "family life" for the purposes of Article 8, the Judge made the following findings at [25] and [26] of the Decision:-
"[25] I do not doubt the strength of the affection between the Appellant, his uncle and his uncle's family. However, the Appellant is now in his early 20s and lived with his uncle and his uncle's family for only just over a year as a child (from almost 17 years old), having previously apparently had no contact with them beyond the financial support that his uncle was providing to his family in India.
[26] Whereas the relationship in Boyle had been built up while the nephew was a child (and the nephew was a child at the time of the application) in this case the relationship has largely been established in adulthood. I am dealing with a relationship between an adult nephew and his uncle, and I consider that for article 8 to be engaged in such a case would require, as Mostafa suggests "very unusual circumstances". An example might be where the uncle had brought up the nephew from birth or an early age, but that is not the case here. I do not consider that the Appellant being close to his uncle and family and financially supported by them now, and since nearly 17, amounts to family life sufficient to engage article 8."
14. Whilst I might not have myself have found that Article 8 was not engaged at all on those facts, the Judge has directed himself in accordance with the relevant case law, it is not said that he has misunderstood the facts of the case and he has reached a conclusion which was open to him on the evidence. I am satisfied that there is no error of law in relation to the Judge's finding in relation to family life.
15. That is though, not the end of the matter. Indeed, the reason for the grant of permission is expressly stated to be not on the basis of the finding as to family life but rather on the basis that those relationships are not considered also under the heading of private life. As Richards LJ observed in Singh v Secretary of State for the Home Department [2015] EWCA Civ 630 at [25], the discussion of whether the relationship is one which engages an individual's family life may be an arid debate in circumstances where the relationship would fall to be considered as part of the individual's private life. In this particular case, though, the Judge also found that the evidence did not establish that the Appellant had formed a private life. At [27], the Judge said this:-
"[27] The Appellant does not just rely on the family life aspect of article 8, but also relies on his private life, which is described in one paragraph in his witness statement. There is, however, no specific material relied upon in support of the Appellant's private life apart from his volunteer work with his church. I do not consider that this is sufficient to establish a private life sufficient to engage article 8."
16. If this had been the end of the Judge's consideration of Article 8, I would have had no difficulty in finding an error of law. Taking together a period of residence of six years (albeit precarious or unlawful) coupled with the Appellant's relationship with his family in the UK, it is difficult to see how a finding that the Appellant has not formed some sort of private life was open to the Judge. However, the Judge did not stop there. He went on to consider whether the decision refusing leave would be disproportionate if the Appellant's family and private life were engaged and there was sufficient interference with it. At [29] onwards, he said this:-
"[29] If I had found that article 8 was engaged to a sufficient extent to satisfy stage two of the Razgar test, I would have gone on to find that any interference with family or private life would have been in accordance with law and, bearing in mind section 117B(1) of the Nationality, Immigration and Asylum Act 2002, that the interference was necessary.
[30] On the question of proportionality, I would have to give little weight to the Appellant's private life, which was established at a time when his immigration status was precarious (s117B(4)(a)). Accordingly, the decision would have been a proportionate interference with his private life. As regards family life, in respect of the Appellant's uncle's children it has not been argued that their best interests required that the Appellant be given leave to remain (section 55 of the Borders, Citizenship and Immigration Act 2009) and I would have found that the decision to refuse leave to remain was a proportionate interference with the Appellant's right to respect for his family life."
17. I asked Mr Lingajothy how it could be said that there is an error of law in relation to engagement of Article 8 in circumstances where the Judge has gone on to make alternative findings relating to proportionality. In response, he submitted only that there is sufficient merit in the Appellant's family and private life claim to outweigh the public interest. I disagree. This is a case where the Appellant has been in the UK on a temporary basis as a student for a period of at best three years and for the remaining period without leave and therefore unlawfully. I accept Ms Brocklesby-Weller's submission that, in circumstances where the claim is based squarely on the de facto parental relationship with his uncles, immigration control outweighs the family and/or private life formed and that there is nothing which tips the balance in the Appellant's favour (based on the claim as it was made and pursued).
18. For those reasons, even if I were minded to find an error of law in the Decision, I would not find it material and I would not set aside the Decision on that account. In any event, for the reasons given at [16] and [17] above, I am not persuaded that there is an error of law. The Judge considered the case on the alternative basis that the Appellant's claim was sufficient to engage Article 8 and that the Respondent's decision interfered with his private and/or family life. However, for the reasons given at [30] of the Decision, having applied section 117B as he was required to do, he reached the conclusion that the Respondent's decision was in any event a proportionate one. That finding does not disclose any error of law.

DECISION
The First-tier Tribunal Decision did not involve the making of an error on a point of law. I therefore uphold the First-tier Tribunal Decision promulgated on 22 February 2016 with the consequence that the Appellant's appeal is dismissed.

Signed Dated: 25 January 2017

Upper Tribunal Judge Smith