Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19905/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 21st November 2016
On: 22nd November 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Joycelyn Lazaro
(No anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: -
For the Respondent: Mr Duffy, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The Appellant is a national of the Philippines date of birth 25th November 1986. She appeals with permission1 the decision of the First-tier Tribunal (Judge Owens) to dismiss her appeal against a decision to refuse a human rights claim.

The Hearing
2. There was no appearance at the hearing by the Appellant. I put the matter back in the list and efforts were made to contact her. No message was received from the Appellant and by 11.30 there was still no appearance. I was satisfied that notices of hearing had been sent to the last known address (that is, incidentally, the same address that the Respondent has on record). I had regard to the overriding objective of disposing of the appeal without delay. There being no reason to suppose that an adjournment or further delay would result in attendance by the Appellant, I proceeded to hear the appeal in her absence.

Background and Matters in Issue
3. The Appellant arrived in the United Kingdom in February 2010 with leave to enter as a Tier 4 (General) Student Migrant. On the 17th May 2012 the Respondent decided to curtail her leave because her sponsoring college had been removed from the list of approved sponsors. It is now accepted that this decision was not communicated to the Appellant and was therefore not a valid curtailment. This meant that the Appellant still had valid leave when on the 25th September 2012 she made an application for further leave. Before me Mr Duffy agreed that this application would have had the effect of extending the Appellant's leave by virtue of section 3C of the Immigration Act 1971. The Appellant was therefore in the United Kingdom lawfully between February 2010 and the unspecified date when the latter application was refused.
4. The basis of the appeal before Judge Owens was however entirely unrelated to the Appellant's past status as a student. The case put was that the Appellant was entitled to leave on human rights grounds. First, it was submitted that she met the requirements of paragraph 276ADE(1)(vi) in that she could show "very significant obstacles" to her integration in the Philippines. Alternatively, it was submitted that her removal would be a disproportionate interference with her Article 8(1) rights in the United Kingdom. The foundation of both arguments was her relationship in the United Kingdom with another Filipino woman.
5. The First-tier Tribunal noted that the Appellant could not hope to succeed under Appendix FM of the Rules, not least because her partner is neither British nor settled. The Tribunal begins by addressing paragraph 276ADE. It found that the Appellant's family in the Philippines includes her parents and two brothers. They are middle class and comfortable. They sponsored the Appellant in her studies. Although the Appellant has not been back home since 2010 she is in contact with her family by telephone. The Tribunal accepted that the Appellant had been subjected to homophobic abuse which was offensive and upsetting, but found that she had received support from her parents. The Appellant had no known health concerns apart from a thyroid disorder which was under control. As to her partner's circumstances, the Tribunal accepted that the woman's father was upset that his daughter was gay, but rejected the suggestion that he posed any kind of threat to either of them. The Appellant lived for 24 years in the Philippines before coming to the United Kingdom. She is educated to degree level. She has managed to support herself whilst in the United Kingdom, including periods when she had no leave. Although some people in the Philippines were intolerant of homosexuality the country background material showed that there are hundreds of organisations supporting gay people and that homosexuality is permitted by law. The Judge specifically rejected the contention that the two women would have to live separately if returned there. Having taken all of those factors into account the Tribunal found there to be no significant obstacles to her integration. The appeal was therefore dismissed with reference to paragraph 276ADE(1)(vi).
6. As to Article 8 'outside of the rules' the Tribunal directed itself to a plethora of leading cases including Razgar [2004] UKHL 27, Huang v Secretary of State [2007] UKHL 11 and SS (Congo) v Secretary of State [2015] EWCA Civ 387. It found as fact that Article 8 was engaged, in respect of family and private life. Having regard to the factors set out in s117B(1)-(6) of the Nationality Immigration and Asylum Act 2002 (as amended) the Tribunal was no satisfied that the Appellant's removal would be disproportionate and the appeal was dismissed under this head of claim.
7. The Appellant now appeals on the following grounds:
i) The Tribunal erred in its assessment of the extent to which the Appellant has been in the United Kingdom without leave;
ii) The Tribunal erred in finding that Article 8 'family life' was not engaged by her sexuality.

My Findings
8. It will be apparent from the above that no challenge is made to the findings that the Appellant could not succeed under paragraph 276ADE(1)(vi) of the Rules. There is a clear finding that there were not very significant obstacles to the Appellant's integration, and that finding must stand.
9. I deal with the second ground first. The grounds highlight the Tribunal's finding [at 62] that the Appellant's ability to express her sexuality openly in the United Kingdom is a part of her private, rather than family life. Issue is taken with that finding as follows:
"It is submitted that the ability to express one's sexuality, form relationships, and have those relationships recognised and respected by society and the state in which the person lives is all part of a person's family life and the Judge has erred in failing to recognise it as such"
10. No authority for that proposition is offered. Whether or not that is the case is however hardly material. First of all, the First-tier Tribunal in this case expressly finds that the Appellant's relationship with her girlfriend does amount to a family life [at 62] and it is on that basis that the analysis is made. Secondly it is apparent that the Tribunal quite properly considered the Appellant's Article 8(1) rights as a composite whole. The Tribunal expressly considered and weighed in the balance the fact that the women are comfortable expressing their sexuality in the United Kingdom and that they may be less so in the Philippines. I do not find any material error in approach in this respect.
11. The appeal is brought principally in relation to the findings on proportionality. Much of the grounds are taken up with the contention that the Appellant had never been served with a curtailment notice and that following an application to extend leave she remained, by virtue of s.3C of the 1971 Act, lawfully in the United Kingdom. I, like Mr Duffy and the First-tier Tribunal, am quite willing to accept that s.3C extended the Appellant's leave after she made an application to vary her Tier 4 leave. It is not clear however how that assists. The relationship was formed when the Appellant's status was precarious, and it was the accepted fact that neither woman had any leave to remain in the United Kingdom. It was the Respondent's position that they would be removed together. There was a clear finding that they would be able to continue their relationship once returned to their country of origin. The only matter which could arguably have weighed positively in the Appellant's favour was that she and her partner would prefer to stay in the United Kingdom where they had each accrued a private life. By operation of s117B(5) that was a matter that could only attract a little weight. It was not therefore a matter that could possibly have outweighed the public interest in removing persons who do not otherwise qualify for leave to remain.

Decisions
12. The determination of the First-tier Tribunal contains no error of law and it is upheld.
13. I was not asked to make an order for anonymity and on the facts I see no reason to do so.

Upper Tribunal Judge Bruce
21st November 2016