Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21735/2015
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 25 November 2016
On 26 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL
Between
CAROL BRENDA DURRANT
(ANONYMITY DIRECTION NOT MADE) Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Representation:
For the Appellant: Mr K Ayileka, Solicitor, Gracefields Solicitors
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS
Background
1. This is a resumed hearing which followed on from my earlier error of law decision setting aside the decision of the First-tier Tribunal upon the basis that the judge therein applied a test for Article 8 which I subsequently found to be in error. In this judgment I refer to Mrs Durrant as the "Appellant" and to the Secretary of State for the Home Department as the "SSHD".
2. The Appellant is a citizen of Trinidad & Tobago born on 9 December 1950. She appealed against the decision of the SSHD dated 27 May 2015 to refuse her application for leave to remain based on her established family and private life in the UK. The SSHD refused the Appellant's application by reference to paragraph 276ADE of the Immigration Rules and on Article 8 grounds contrary to the ECHR.
3. The Appellant appealed the decision and her appeal came before First-tier Tribunal Judge Doyle on 23 November 2015 and he allowed the appeal contrary to Article 8 outside of the Rules.

4. The Respondent appealed that decision and after a hearing on 17 August 2016, I set aside that decision. The matter was adjourned for me to rehear the appeal. There was no dispute that the Appellant did not meet the requirements of the Immigration Rules. The matter fell to be reconsidered in relation to Article 8 - the focus of the appeal being that of proportionality.

5. Mr Ayileka indicated that he did not intend to call the Appellant to give evidence relying on the preserved findings and the documentary evidence before me. Mr Diwnycz indicated that he was content with that as he had no questions for the Appellant.

Submissions

6. At the hearing I heard submissions from Mr Diwnycz on behalf of the SSHD that :

(a) He relied on the reasons for refusal letter.

(b) It was for the Appellant to establish that the SSHD's decision was not proportionate.

7. On behalf of the Appellant Mr Ayileka submitted that :

(a) He relied on his skeleton argument.

(b) Section 117B of the Nationality, Immigration and Asylum Act 2002 (hereafter "the 2002 Act") was not determinative of the proportionality assessment.

(c) The Appellant is financially independent and speaks English.
(d) There are many factors that weigh in the Appellant's favour against the fact that she has no leave to remain in the UK.

(e) The Appellant first entered the UK in 1970. She married in the UK and had three children who are all British citizens. She was granted Indefinite Leave to Remain in 1978.

(f) The Appellant last arrived in the UK as a visitor on 6 June 2003. She then lived here as a work permit holder for five years until 2008. She became an overstayer in 2009.

(g) The Appellant has since attempted to regularise her status but her applications were rejected as invalid.

(h) The Appellant has ten British grandchildren who she sees regularly and she takes care of some of them weekly.

(i) She has worked for the NHS and receives two UK pensions.

(j) The Appellant is of good character.

(k) The Appellant is 65 years old. She has strong connections to the UK. All of her children save for one are in the UK. Her daughter in Trinidad intends to relocate to the UK. The Appellant's family members, in particular, her three minor grandchildren she cares for will be affected by her absence.

Findings

8. I am required to look at all the evidence in the round before reaching any findings bearing in mind that the burden of proof is upon the Appellant on a balance of probabilities. I have done so. Although, for convenience, I have compartmentalised my findings in some respects below, I must emphasise the findings have only been made having taken account of the evidence as a whole.

9. The First-tier Tribunal's preserved findings of fact can be summarised as follows. The Appellant first came to the UK in January 1970 when she was 19 years old as a student nurse. In March 1976 she married a British citizen and they had three children. In October 1978 she was granted Indefinite Leave to Remain in the UK. In December 1983 she left the UK and travelled to Jamaica to look after her ailing mother-in-law. She remained there until February 1985; from there she travelled to Trinidad to look after her ailing father. The Appellant was joined by her two youngest daughters. Whilst the Appellant was in Trinidad her marriage broke down and she entered into a new relationship and they subsequently had two daughters.
10. In December 2000 the Appellant and her two daughters from her last relationship entered the UK as visitors. In June 2001 the Appellant returned to Trinidad leaving her children in the care of her British citizen daughter because her father's condition had deteriorated. In 2014 the two daughters were granted limited leave to remain in the UK.
11. On 6 June 2003 the Appellant returned to the UK. She has since remained in the UK save for a brief trip to Trinidad in 2006 for her father's funeral. In August 2003 the Appellant was issued with a work permit valid until 29 August 2008. In 2004 and 2007 the Appellant unsuccessfully made applications for leave to remain in the UK; each of her two applications was rejected by the Respondent as invalid.
12. Four of the Appellant's five daughters live in the UK and the other lives in Trinidad with her two children. The latter are also British citizens and they intend to leave Trinidad and return to the UK. The Appellant has nine minor grandchildren and one adult grandchild. She cares for her three minor grandchildren twice a week whilst her daughter is at work. She has less frequent contact with her other grandchildren.
13. The Appellant receives an NHS pension and a UK state pension. She has a home and a brother in Trinidad, but she has had no contact with him for 2 years. The Appellant lives with her two youngest daughters. Her other daughter and her three children live close by. The Appellant is in contact with all of her children and grandchildren.
14. It is common ground that the Appellant did not meet the conditions for being granted leave to remain under the Immigration Rules including those components of the Rules which were designed to make an assessment of the rights of the Appellant under Article 8. The Immigration Rules are said to reflect the SSHD's view of where a fair balance should be struck between the right to respect for private and family life and public interest considerations relating to the maintenance of an effective system of immigration control. The Rules should be read in a way that reflects a proper interpretation of Article 8 of the ECHR. However, there may be some cases where the rules do not address relevant Article 8 issues. In such cases it may be necessary to consider whether there are compelling circumstances to justify granting leave to remain outside the Immigration Rules: SSHD v SS (Congo) [2015] EWCA Civ 387. This should be assessed by reference to the five stage test outlined by the House of Lords in R v SSHD ex parte Razgar [2004] 3 WLR 58.
15. There is no dispute that this is one of those cases. The appeal focuses on the Appellant's private life which includes a consideration of the relationships that she has established here with her family members. The question which arises is whether the particular facts surrounding the Appellant and her personal and family circumstances give rise to some compelling or exceptional circumstance which, when measured within the proportionality test, give rise to an Article 8 right which must be recognised. The First-tier Tribunal heard oral evidence and received detailed submissions upon the facts. The First-tier Tribunal's fact-finding accepted the Appellant's background and circumstances in its entirety (summarised above), which I now must apply to the applicable law.
16. There is no dispute that the Appellant has established a private life in the UK. The Appellant's private life consists of substantial elements and comprises of relationships that she has established with her adult children and grandchildren in the UK. I bear in mind that following the decisions in AG (Eritrea) v SSHD [2007] INLR 407 and VW (Uganda) v SSHD [2009] EWCA Civ 5 that the threshold for showing an interference with an Appellant's rights under Article 8 is not particularly high. For this reason I find that it is likely that the Appellant has established a private life in the UK, and that in all the circumstances of this case removal would interfere with that life in a sufficiently grave way as to engage the operation of Article 8. There is also no dispute that the SSHD's decision is in accordance with the law and pursues a legitimate aim namely one of immigration control. The matter thus boils down to the question of proportionality.
17. On the merits of this appeal, whilst I acknowledge and take account of the limited utility of Article 8 in private life cases, I have come to the conclusion that I should not disturb the ultimate conclusion arrived at by the judge below. In this respect I would emphasise that this is a finding on specific facts, that it is in my view a marginal decision, and that I do not in any sense consider that this would be a precedent for other cases of this kind. I have essentially come to this conclusion because when viewed in the context of the usual facts which go into a proportionality balancing exercise I consider that the facts of this case, in combination, are towards the extreme - "exceptional" or "compelling" end of the spectrum.
18. The First-tier Tribunal found that there were exceptional circumstances in view of the Appellant's contribution to UK society; she was granted Indefinite Leave to Remain in 1978, which she had no intention of relinquishing, but which was lost through no fault of her own when she left the UK to care for her father; her children and grandchildren were all British citizens; the family history indicated that even though she left the UK in the 1980's that she continued to regard the UK as her home; the impact of the SSHD's decision is that she would be separated from her daughters and grandchildren and would face the prospect of advancing years alone away from her family with whom she has lived throughout her life. I agree that these are all compelling features unique to a case of this kind.
19. However, in assessing whether removal in consequence of the decision would be a proportionate response, I must and do have regard to the public interest considerations set out in section 117B of the 2002 Act. I take into account that it is in the public interest to maintain an effective system of immigration control (s.117B(1)). While the Appellant speaks English and is financially independent and is therefore better able to integrate, this is a neutral factor that does not add to her case (s.117B(2)). It is merely a factor that does not lend additional weight to the public interest considerations: see AM (S.117B) Malawi [2015] UKUT 260.
20. I am also required to attach little weight to the private life that has been established in the UK at a time when a person's immigration status is precarious/unlawful (s.117B(4) & (5)). The Appellant has continued to build upon the ties she has to the UK since her last entry in 2003. Whilst she entered lawfully and remained here as a work permit holder for five years, there is no dispute that since 2009 she has had no leave to remain in the UK.
21. The public interest considerations outlined in section 117B of the 2002 Act are, however, only one part of the proportionality assessment and may still be outweighed if the Appellant can show that there are particularly compelling circumstances that might justify granting leave to remain even though she doesn't meet the requirements of the Immigration Rules. Here I agree with the conclusion of the First-tier Tribunal that the facts of this case are unusual for the reasons that I have outlined above. This is not a case where to permit the Appellant to remain would set a dangerous precedent about private life or rights. This is in my view simply a case where on the particular facts the private rights of the Appellant and her family have unusually reached the level where they may properly be said to be exceptional or compelling and where the harm to the important policy objectives of maintaining an effective and fair immigration system is limited, and hence, just outweighed.
22. For the reasons given above I find that removal in consequence of the decision would amount to a disproportionate interference with the Appellant's right to private life under Article 8 of the ECHR.
23. The Appellant's appeal is allowed.

No anonymity direction is made.

Signed: Date: 26 January 2017

Deputy Upper Tribunal Judge Bagral
TO THE RESPONDENT
FEE AWARD

It is appropriate to make a fee award as I have allowed the appeal.

Signed Dated 26 January 2017

Deputy Upper Tribunal Judge Bagral