Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20945/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 27 July 2016
On 17 August 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

yewande [g]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr Harrison, Senior Presenting Officer
For the Respondent: Mr Holt, instructed by Perera & Co solicitors

DECISION AND REASONS

Introduction
1. The appellant before the Upper Tribunal is the Secretary of State for the Home Department. I shall refer herein to Ms [G] as the claimant.
2. The claimant is a citizen of Nigeria born in 1994. She first arrived in the United Kingdom on 13 January 2006 on a six-month visit visa, aged 11. She has not left the United Kingdom since, and has had no lawful leave subsequent to the expiry of her leave to enter in 2006. She has three siblings in the United Kingdom, one of whom is a British citizen and two of whom have discretionary leave to remain here in line with the appellant's mother.
3. The claimant has a criminal conviction for possession of a false identity document. Having pleaded guilty to such an offence she was sentenced, on 14 August 2013, to four months' imprisonment - wholly suspended - and 150 hours' community service.
4. On 25 February 2015 the claimant applied for leave to remain. That application was refused by the Secretary of State in a decision of 21 May 2015 and it is this decision which was the subject of an appeal to the First-tier Tribunal.
5. The appeal was heard by First-tier Tribunal Judge Chambers on 6 January 2016 and allowed "under the Immigration Rules" in a decision promulgated five days later. The Secretary of State appeals to the Upper Tribunal against the decision of Judge Chambers with the permission of First-tier Tribunal Judge Grant-Hutchison. Thus the matter came before me.
Secretary of State's decision
6. In her decision letter of 21 May 2015 the Secretary of State concluded that the appellant failed to meet the requirements of the Immigration Rules in the following two respects:
"It is noted that you were convicted of possession of a false identity document and was given a 4 month suspended sentence and 150 hours community service on 14 August 2013. For these reasons the Secretary of State considers that your presence in the UK is undesirable and you therefore fail to fulfil S-LTR.1.6 of Appendix FM of the Immigration Rules. Therefore you fail to meet the requirements of Rule 276ADE(i) of the Immigration Rules. ...
In order to meet the requirements of paragraph 276ADE(1)(vi), an applicant must show that they are aged 18 or above and that there will be very significant obstacles to their integration into the country to which they would have to go if required to leave the UK. It is not accepted that there would be very significant obstacles to your integration into Nigeria, if you were required to leave the UK because you spent 11 years of your life in Nigeria before coming to the UK. You speak both English and Yoruba and you will be able to reintegrate back into the culture there. Consequently, you fail to meet the requirements of paragraph 276ADE(1)(vi) of the Immigration Rules."
S-LTR.1.6 - Discussion and Conclusion
7. Paragraph S-LTR.1.6 to Appendix FM of the Rules reads as follows:
"The presence of the applicant in the UK is not conducive to the public good because their conduct 'including convictions which do not fall within paragraphs S-LTR.1.3 to 1.5', character, associations, and other reasons, make it undesirable to allow them to remain in the UK."
8. The First-tier Tribunal dealt with this provision in the following terms [9]:
"The fact of the conviction alone is not in itself sufficient. The appellant's presence now is not now a threat in any way. There is no evidence before me to demonstrate the appellant has a propensity to reoffend. The sentence she received was light and below the conventional tariff. It strongly suggests that the sentencing court was influenced by the mitigation the appellant put forward and persuaded to take an unusually lenient course. The appellant has served the sentence. There must be something more than the offence itself, something based upon propensities within the appellant to give rise to an inference the appellant's presence in the UK is undesirable. Seemingly no action was taken by the respondent at the time of the offence."
9. The Secretary of State's ground of challenge in relation to this aspect of the First-tier Tribunal's decision (ground 2) reads:
"It is not disputed that the appellant has a conviction which falls within S-LTR.1.6 above and therefore the appellant cannot meet the suitability requirements."
10. At the hearing Mr Harrison accepted that the fact of this conviction alone is not determinative of the issues requiring consideration under paragraph S-LTR.1.6. He made no further submissions in relation to the lawfulness of the First-tier Tribunal's conclusions on this issue.
11. Looking at the First-tier Tribunal's decision as a whole, in my conclusion it properly directed itself as to the relevant requirements in S-LTR.1.6, took into account all material factors relevant to a lawful consideration of that Rule and came to a conclusion which is perfectly rational on the available evidence. In other words, in my conclusion the First-tier Tribunal did not err in its consideration of this requirement of the Rules.
Paragraph 276ADE(1)(vi) - Discussion and Conclusion
12. By paragraph 276ADE(1)(vi) of the Rules the claimant was required to establish:
"Subject to subparagraph (ii) [not relevant in this case], is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK."
13. The First-tier Tribunal's conclusions on this issue are found ostensibly in paragraph 10 of its decision, which states:
"In relation to paragraph 276ADE(vi) it is established the appellant is over 18. There are very significant obstacles to her integration to Nigeria. She is heavily pregnant. She cannot fly to Nigeria. She left Nigeria when she was aged 11. She has never returned to Nigeria. She has no reasonable expectation of support from family and friends in Nigeria. Given her condition she would have problems supporting herself and, when the time came, of supporting her child. Her partner a British citizen cannot be forced to go to Nigeria with the appellant. He has a good job in the United Kingdom. He will be able to support is family if he goes there. If he gave up his job and went abroad with the appellant the family would not enjoy the same income or prospects. There are also considerations to do with the appellant's private and family life arrangements with her family here."
14. The Secretary of State's grounds of challenge read:
"In allowing the appeal under 276ADE(1)(vi) Judge of the First-tier Tribunal Chambers finds that there are very significant obstacles to her integration into Nigeria.
The reasons he gives for that are:
(1) The appellant is heavily pregnant
(2) The appellant left Nigeria aged 11 and has not returned
(3) The appellant cannot reasonably expect her family there to support her.
(4) She would not be able to support herself and her child
(5) The appellant's British partner would have to give up his job
In addition to not giving adequate reasons for any of the above findings, it is submitted that reasons (1) and (5) are irrelevant to the question of significant obstacles and that (2) to (4) whilst relevant factors would not necessarily be determinative."
15. Once again I conclude that the Secretary of State's ground is unfounded. Whilst the ground seeks to identify five separate reasons given by the First-tier Tribunal for its conclusion that there are very significant obstacles to the claimant's integration into Nigeria, on close analysis - as accepted by Mr Harrison - there are numerous other reasons also given by the Tribunal but not referred to in the grounds.
16. Looking at the decision of the FtT as a whole in the context of the information it had before it, it is clear that each of the reasons identified in paragraph 10 therein, for the finding that the requirements of paragraph 276ADE(1)(vi) had been met, has a foundation in the evidence. It is significant to observe that upon being invited by the Tribunal to identify which, if any, of the findings were not open to the Tribunal on the available evidence Mr Harrison was unable to direct attention to any such findings.
17. Furthermore, the assertion in the grounds that the fact that the appellant is pregnant and that the appellant's British partner would have to give up his job if he were to also move to Pakistan are irrelevant to the question of whether there very significant obstacles to the appellant's integration to Nigeria, is entirely misconceived. Plainly, both are matters which should not properly be left out of account in a consideration of paragraph 276ADE(vi); the weight to be attached to each being entirely a matter for the FtT.
18. The same can be said of the age the claimant left Nigeria, the fact that she could not reasonably be expected to receive the support of her family there and that she would not be able to support herself and her child in Nigeria. Whilst I agree with the grounds that none of these matters should be treated as being determinative of the issue in the appeal, this is not how the FtT treated them.
19. In short, I find that the FtT gave adequate reasons for its conclusions. It was not required to give reasons for reasons. The FtT was entitled to take into account each of the matters referred to in paragraph 10 of its decision, and attach such weight to each as it thought appropriate. The conclusion reached by the FtT is not irrational on the available evidence.
20. As such, and for the reasons given above, I do not accept that the FtT's decision contains an error of law.
Decision
The SSHD's appeal is dismissed. The FtT's decision does not contain an error of law.

Signed:

Upper Tribunal Judge O'Connor