Tribunal decisions

The decision

UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

THE IMMIGRATION ACTS

Heard at: Field House
On: 4 June 2013
Decision Promulgated:
On: 6 June 2013

Before

Upper Tribunal Judge Pitt

Between

Ms Priya Devi Koonja

Appellant
and

Secretary of State for the Home Department

Respondent

Representation:

For the Appellant: Mr Latter, instructed by Raj Law Solicitors
For the Respondent: Mr Bramble, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. This is an appeal against the determination dated 28 February 2013 of First-tier Tribunal Judge Ruth which refused the appellant’s appeal against the respondent’s decision of 3 September 2012 to refuse leave to remain under Article 8 of the ECHR.

2. The appellant’s case is that she came to the UK as a visitor in 2006, through her sister met a British national, Mr Dehokenanan, and formed a relationship with him. She returned to Mauritius in 2006 in line with her visit visa. Mr Dehokenanan visited her there in 2008. She came back to the UK as a visitor in October 2008 and moved in with Mr Dehokenanan, continuing her relationship with him and caring for him as he had a number of medical problems. Having obtained an extension of leave as a carer, she then overstayed and made the current application to stay as Mr Dehokenanan’s partner under Article 8 of the ECHR.

3. However, the respondent and Judge Ruth did not accept that the appellant was in a relationship with Mr Dehokenanan such that they had a family life and did not find removal would be a disproportionate interference to any private life she had established in the UK.

4. Mr Latter’s first submission was that Judge Ruth failed to consider the material evidence of a witness, Mr Houlihan. At [29] of the determination, Judge Ruth records only that Mr Houlihan adopted a statement dated 29 February 2012, originally produced for a bail hearing. This was not accurate, maintained Mr Latter, as Mr Houlihan had adopted both that statement and a much more detailed one dated 23 October 2012. On examination, the handwritten record of proceedings shows that Mr Latter was correct in this regard and that Mr Houlihan adopted both of his statements before Judge Ruth. However, the reference at [29] only to the adoption of the bail statement, according to Mr Latter, showed that Judge Ruth had failed to consider the witness statement dated 23 October 2012 of Mr Houlihan. This was material as it contained specific evidence on the appellant and Mr Dehokenanan being in a relationship.

5. It was my view that Judge Ruth did take Mr Houlihan’s witness statement dated 23 October 2013 into account when he made his decision notwithstanding his incorrect recording at [29] that only the bail statement was adopted in evidence. Judge Ruth refers specifically at [16] to the witness statement dated 23 October 2012 as forming part of the evidence before him. He can only be referring here to the witness statement dated 23 October 2012 as it was the only “separate” statement from Mr Houlihan that was before him. I did not find that the failure at [29] to record that Mr Houlihan adopted both his statements was sufficient to show that he did not take the witness statement dated 23 October 2012 into account when [16] shows that he was clearly astute to it.

6. Also, at [49], Judge Ruth addressed Mr Houlihan’s evidence, thus:

“49. I turn now to the evidence of Mr Houlihan. He is a lodger in the sponsor’s home and gave evidence that he believes that the appellant and sponsor are in a relationship akin to marriage since they share a room and he has seen them in circumstances that would suggest to him their relationship is a close one. In cross-examination it became clear that he has never seen them kissing, holding hands or expressing the type of affection which one might expect between partners and he could not provide direct examples of behaviour he has witnessed which could not be explained by the appellant and sponsor being close family members or carer and patient rather than partners. While I fully accept Mr Houlihan believes what he says, I do not accept that his evidence establishes the claims of the appellant and sponsor.”

7. If Judge Ruth had reached his decision only on the basis of Mr Houlihan’s bail statement, he could not have known that he considered that the appellant and Mr Dehokenanan were “in a relationship akin to marriage since they share a room and he has seen them in circumstances that would suggest to him their relationship is a close one”. There was nothing in the bail statement about such matters. This further indicated to me that he took the witness statement into account. It is possible that he took this information from oral evidence given by Mr Houlihan or from the skeleton argument which summarised Mr Houlihan’s evidence at paragraph 11(e). But, where he clearly had in mind the key parts of Mr Houlihan’s evidence when reaching his decision, it did not appear to me to be significant which account he took it from. It remained my view, in any event, that [16] and [49] were sufficient to indicate that Judge Ruth did take the statement of 23 October 2013 into account.

8. Mr Latter’s alternative submission was that Judge Ruth had materially erred in his consideration of Mr Houlihan’s evidence. Judge Ruth’s finding that the evidence of Mr Houlihan could be interpreted as showing only that the appellant and Mr Dehokenanan were “close family members or carer and patient rather than partners” was not compatible with the statement at paragraph 9 of the witness statement dated 23 October 2012 that the couple shared a room and that there was “only 1 double bed in their room.” The handwritten record of proceedings shows that Mr Houlihan’s oral evidence was that the bedroom shared by the appellant and Mr Dehokenanan had not only a bed but “sofas” in it, however. Further, Judge Ruth’s findings on Mr Houlihan’s evidence were made in the context of the evidence as a whole. He set out in some detail from [34] to [48] his reasons for finding that the evidence of the appellant, Mr Dehokenanan and he appellant’s sister to be “entirely lacking in credibility.” These included the speed with which the appellant entered into a relationship with a man in poor health who was more than 30 years older than herself, when she moved in with Mr Dehokenanan and a lack of consistency between the witnesses as to when the relationship began. When read together with those other findings, it was clearly open to Judge Ruth to find that the extent of Mr Houlihan’s evidence, even if accepted to be his genuine belief, was not sufficient to show that the appellant was in a relationship with Mr Dehokenanan.

9. The remaining grounds amounted only to disagreement. Judge Ruth took into account the relevant evidence, summarised at [16] to [18]. He was not obliged to find it consistent or sufficient to show that the appellant was in a relationship with Mr Dehokenanan. It was open to him at to conclude at [34] and [43] that it was inherently implausible that the appellant would have moved in with Mr Dehokenanan in either the sensitive role of carer or as a partner so immediately, reaching this conclusion only after consideration of the other evidence, as shown in [35]. It did not appear to me that much could hang on Judge Ruth’s assumption at [45] that hospital staff had been told that the appellant was Mr Dehokenanan’s niece, particularly where the appellant and Mr Dehokenanan accept that he was referred to at times as her “uncle”, that they did not inform others of their relationship for some time and there are therefore a number of documents referring to the appellant as only his carer. Paragraphs [24] to [26] and [37] to [39] show that Judge Ruth took very particular care to ensure that matters were made as clear as possible for the appellant.

10. I also did not find that the Article 8 consideration disclosed an error. Given his sustainable findings about the appellant’s relationship with Mr Dehokenanan, Judge Ruth could only conclude that she had not established a family life in the UK. Where that was so, it is difficult to see how the private life claim could succeed where Mr Dehokenanan could be expected to seek support elsewhere, the respondent having already allowed the appellant to extend her visit visa in order to care for him temporarily. The grounds are correct to indicate that Mr Dehokenanan may not be cared for as well by Social Services as he is by the appellant. There is no dispute that Social Services would provide necessary care, however, and this is therefore not something that could show that the appellant’s removal would be disproportionate. It did not appear to me that, even had Judge Ruth set out in more detail the weight he placed on the disruption to Mr Dehokenanan caused by the departure of the appellant, that factor, even at its highest, could have led to a different outcome of the Article 8 appeal.

11. The decision of the First-tier Tribunal contains no material error of law.

DECISION

12. The Immigration Judge made no error on a point of law and the original determination of the appeal shall stand.

Signed: Date: 5 June 2013

Upper Tribunal Judge Pitt