Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19957/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 24 November 2016
On: 25 November 2016

Before

THE HON. LORD MATTHEWS
UPPER TRIBUNAL JUDGE KEBEDE

Between

Memory [P]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Khan of SMK Solicitors
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Zimbabwe, born on 18 April 1977. She has been given permission to appeal against the decision of First-tier Tribunal Judge Mailer, dismissing her appeal against the respondent's decision to refuse her application for leave to remain in the UK on human rights grounds.
2. The appellant entered the United Kingdom in February 2000 on a six month visit visa and was subsequently granted further periods of leave as a student nurse until 31 December 2007. Thereafter she remained in the UK without leave and on 15 February 2011 was issued with removal papers as an overstayer. She then made an asylum claim which was refused in March 2011 and unsuccessfully appealed to the First-tier Tribunal in May 2011.
3. On 30 March 2015 the appellant applied for further leave to remain in the UK on the basis of family and private life established in the UK. Her application was based in particular upon her 'shared parental responsibility' with her sister in respect of the care of her sister's two daughters, both of whom were British citizens. It was claimed that the children had no contact with their father and that their mother worked away from home for extended periods in Guernsey, as an NHS midwife, so that parental responsibility fell upon the appellant to look after the children, the youngest of whom, [S], was HIV positive and required extra care and assistance with her medication and hospital appointments.
4. The appellant's application was refused by the respondent on 13 May 2015, on the grounds that she did not meet the relevant criteria in Appendix FM of the immigration rules as a partner or parent, that she did not meet the criteria under paragraph 276ADE(1) on the basis of private life and that there were no exceptional circumstances justifying a grant of leave outside the immigration rules.
5. The appellant appealed against that decision. In her grounds of appeal, she relied on Article 8 outside the immigration rules, asserting that the respondent had failed to consider section 55 of the Borders, Citizenship and Immigration Act 2009 and had failed to conclude that there were exceptional circumstances existing in this case, in particular in relation to [S] and the extra care that was afforded to her by the appellant as a result of her medical condition.
6. The appellant's appeal against that decision was heard on 26 April 2016 in the First-tier Tribunal. Judge Mailer heard from the appellant and her sister. By that time the appellant's nieces were aged 14 and 15. The judge recorded the evidence given by the appellant and her sister that she had been caring for [S] since 2003 and had developed a strong bond with the children, sharing parental responsibility with her sister. When her sister started working in Guernsey in November 2014 she became [S]'s main carer, taking her to hospital appointments and administering her medication. It was claimed that the same level of care and affection could not be met through the intervention of social services. The appellant claimed that she had no family or social ties to Zimbabwe. The judge found that the appellant could not meet the criteria in Appendix FM or paragraph 276ADE(1). He found that the respondent had properly concluded that there were no exceptional circumstances outside the immigration rules and he accordingly dismissed the appeal.
7. The appellant then sought permission to appeal to the Upper Tribunal, on the grounds that the judge had failed to conduct an Article 8 assessment outside the immigration rules and had failed to consider section 55 of the 2009 Act with respect to the children.
8. Permission to appeal was initially refused, but was subsequently granted on 28 October 2016 on all grounds.
9. At the hearing before us, Mr Khan relied and expanded upon the grounds of appeal, submitting that the judge had failed to conduct a two stage assessment of Article 8 as set out in Bossade (ss.117A-D-interrelationship with Rules) [2015] UKUT 415, failing to consider Article 8 outside the immigration rules and section 117B of the Nationality, Immigration and Asylum Act 2002. He referred to [120] of the judge's decision where the judge said that a separate consideration of Article 8 outside the rules was not necessary. Mr Khan submitted that if he had given consideration to paragraph 117B he would have considered that there was a parental relationship with a qualifying child. Furthermore, there was no consideration given to section 55 and the best interests of the children, contrary to the principles set out in JO and Others (section 55 duty) Nigeria [2014] UKUT 517.
10. Mr Armstrong submitted that there was no parental relationship for the purposes of section 117B and that the judge had clearly considered the children's best interests and all relevant matters outside the immigration rules.
Consideration and Findings
11. Whilst the judge's decision could perhaps have been better expressed and formulated, we do not agree with the appellant's submissions that it was flawed in any material respect. We admit to having some difficulty in understanding what the judge meant at [120] but we do not agree with the assertion made in the grounds and Mr Khan's submission that that was a reflection or indication of a failure by the judge to consider Article 8 outside the immigration rules. We consider that what he meant by his comments at [119] and [120] was that the appeal had not raised any new matters that had not already been considered by the respondent. However we do not consider that to be an indication that he simply endorsed the respondent's decision without undertaking a full assessment of all relevant matters himself or that he did not consider Article 8 in its widest context. On the contrary, it is plain that the judge embarked upon a full and detailed assessment of the appellant's circumstances and those of her sister and her sister's children in considering Article 8 outside the rules and indeed devoted most of his findings and reasoning to the consideration of Article 8 outside the rules. He made express reference to his consideration of Article 8 outside the rules at [111] where he then went on to consider the public interest factors in section 117B of the 2002 Act. Mr Khan submitted that the judge failed to take into account paragraph 117B(6) on the basis of the appellant's relationship to qualifying children, but we do not agree that that relationship can be described as a parental relationship for the purposes of that provision, however close the bond may be between them.
12. We also find no merit in the assertion in the grounds that the judge failed to consider the best interests of the children, when it is clear, once again, that his decision was for the most part devoted to a careful consideration of the children's interests, albeit without any specific citation of section 55, but expressly referring at [91] to the welfare of the children as an integral part of the Article 8 assessment. The judge took full account of the role the appellant played in the children's lives and the care she provided, in particular to [S], and gave careful consideration to the medical and other evidence produced in that regard. There was nothing inconsistent with the decision in JO in the judge's approach to the children's interests and indeed that case made it clear that each case had to be decided on its facts and on the information and evidence available in the application. Whilst the respondent made no express reference to the children's best interests in the refusal decision, that was no doubt because the application had not been specifically put on that basis and did not involve a parental relationship to children, whereas by the time of the appeal before the First-tier Tribunal the issue had evolved and, as a result, was a matter considered and addressed by the judge at length.
13. Mr Khan submitted that the judge erred in law by making no express finding on where the best interests of the children lay, but we do not consider that it was necessary for him to do so in this case, in particular since the children had a subsisting parental relationship with their own mother in this country. The judge's findings at [114] and [115] indicate, in any event, that he accepted that it was in the best interests of the children for the appellant to remain with them, particularly in the short term. However he went on to provide numerous reasons for concluding that that did not in itself justify a grant of leave outside the rules, including the fact that the children were now capable of attending to their day to day needs themselves, that they could make their own way to and from school, that [S] was now sufficiently responsible to take her medication without being prompted, that a carer could be employed to assist the appellant's sister and that there was no evidence to suggest that her sister could not obtain more flexibility in her employment in terms of her hours or location so as to be more available to her children as she was previously.
14. Having carefully considered and weighed up all the various factors, and taken full account of the needs of the children as well as the appellant and her sister, the judge concluded that they were not sufficient to warrant a grant of leave outside the rules on wider Article 8 grounds. That was a conclusion fully open to the judge on the evidence available to him. We do not consider that the judge erred in his approach to Article 8. His approach was one that was entirely consistent with relevant jurisprudence and included a full and detailed consideration of all relevant matters. We find no errors of law in his decision.
DECISION
15. The making of the decision of the First-tier Tribunal did not involve an error on a point of law requiring it to be set aside. We do not set aside the decision. The decision to dismiss the appeal stands.

Signed
Upper Tribunal Judge Kebede Dated: