Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21877/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 February 2017
On 13 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

dalvinder tong
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Saleem, Counsel, instructed by M & K Solicitors
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Matthews (the judge), promulgated on 18 July 2016 in which he dismissed the Appellant’s appeal. That appeal had been against the Respondent’s decision of 21 May 2015 in which she rejected the Appellant’s human rights application made on 28 January of that year. The Appellant’s claim was essentially based upon the time he had spent in the United Kingdom (having arrived here in 1998), the ties he had created whilst here, and the lack of connections to his native India. The Appellant had succeeded in a previous appeal in 2011, following which the Respondent had granted him three years discretionary leave in line with her policy on successful Article 8 cases.

The judge’s decision
2. The judge sets out the evidence and then proceeds to make findings from paragraph 21 onwards. He finds that the Appellant had, since 2011, spent what he described as “a considerable period of at least eighteen months” in India. This lengthy period had been made up of a two-month holiday, a three-month spiritual retreat and a year during which he was unwell. At paragraph 22 the judge refers to what he describes as a handwritten letter from a doctor in India, but found that evidence to be insufficiently detailed to justify a finding that the Appellant had been unfit to travel for the period of a year, as claimed. The judge goes on in subsequent paragraphs to find that the Appellant had had support from both within and without India during his time outside of the United Kingdom, had been able to work previously, both in India before he came to the United Kingdom and within this country. The judge notes the period of time spent in India before the Appellant came to this country. At paragraph 26 he makes reference to the previous appeal but notes that in his view there had been a “significant change in circumstances” since 2011.
3. Based upon his findings the judge concludes that the Appellant could not satisfy the requirements of paragraph 276ADE(1)(vi) of the Rules (the “very significant obstacles to integration” test). At paragraph 30 onwards the judge looks at the Appellant’s Article 8 claim outside of the Rules but concludes that there were no compelling circumstances, therefore the appeal was dismissed on all grounds.

The grounds of appeal and grant of permission
4. There are three grounds of appeal. First, that the judge failed to have adequate regard to the Appellant’s private life with reference to what had been said in the previous Tribunal decision of 2011 and in light of the well-known Devaseelan principles. Ground 2 relates to the medical letter that I have already referred to and the alleged inadequacy of the judge’s reasons on this item of evidence. Ground 3 asserts that the judge has failed to adequately consider the Article 8 claim outside of the Rules. By a decision dated 30 Deecember 2016, First-tier Tribunal Judge Bird granted permission.

The hearing before me
5. Mr Saleem relied on the grounds of appeal and his skeleton argument. He submitted that the judge had not had due regard to the previous findings in 2011. I was referred in particular to paragraph 37 of that decision in which it was found that, as of the date of that hearing, the Appellant had no ties left in India. Mr Saleem noted that the witnesses who had appeared in support of the Appellant at the previous appeal had done so again in respect of the appeal before the judge in 2016. It was said that insufficient reasons had been given by the judge for departing from the 2011 findings. In respect of ground 3, Mr Saleem suggested that the judge had not considered the Razgar approach correctly. He had failed to adequately consider whether or not there were compelling circumstances in this case and had not considered proportionality. In respect of the second ground of appeal the judge had been wrong not to attach weight to the medical letter. The effect of the medical condition was that the Appellant had been unable to return to the United Kingdom for a year. This was not the Appellant’s fault and this constituted a compelling circumstance. The judge had not clarified the issue of the duration of the illness. Mr Saleem accepted that there was no medical evidence covering the whole year of the apparent illness.
6. Mr Armstrong submitted that the judge had in fact looked at Article 8 outside of the Rules and had done so adequately. Reference had been made to the medical evidence and the conclusions reached upon it were open to the judge. In respect of the Devaseelan issue, there had been a change of circumstances in the five years between the previous decision and the judge’s decision in 2016. The Appellant had clearly spent a long time out of the United Kingdom. It was noted that the medical letter covered a six-month period only. Mr Armstrong suggested that in light of the evidence as a whole there were no compelling circumstances. The judge’s findings had been open to him, both in respect of the Article 8 claim within and without the Rules.
7. Mr Saleem added nothing by way of reply.

Decision on error of law
8. As I informed the parties at the hearing I conclude that there are no material errors of law in the judge’s decision. This is so for the following reasons.
9. First, the judge has clearly proceeded on the basis that there was family life in this case, as he was bound to do.
10. Second, in my view the judge has applied the Devaseelan principles in this case. He was clearly well aware of the 2011 decision and the findings made therein. The judge’s task, of course, was to take those findings only as a starting point, but to look at the evidence as a whole as at the date of the hearing before him. In light of that evidence and the judge’s unchallenged findings at paragraphs 22, 23, 24 and 25, it was clearly open to him to find that there had been a “significant change in circumstances”, as stated in paragraph 26. This important conclusion is perfectly sound. That a previous judge found there to be no ties in India as of 2011 was relevant, of course, but in the context of this case not of essential importance, given all that had transpired in the intervening five years. The judge was not bound to find in 2016 that the Appellant had no ties with India. Indeed, if the judge had so found it would quite possibly be perverse of him to do so, given the evidence of the Appellant’s lengthy periods out of the country and the manner in which he had been supported during those absences.
11. Third, the judge has dealt with the medical evidence, and in my view he has dealt with it adequately. Whilst what is said in paragraph 22 is brief, so too is the evidence adduced in support of the Appellant’s medical condition. Having looked at it myself, I note that the letter at page 30 of the Appellant’s bundle (typed and not handwritten as stated by the judge) refers to the Appellant suffering from cervical spondylosis and severe vertigo and being under the care of the particular doctor for a period of six months in 2014. That clearly does not cover the whole year of an claimed inability to return to this country. With this in mind it was in my view open to the judge to have found as he did; the letter in question was insufficiently detailed to allow him to make findings that the Appellant had been unfit to return from India for over a year. Put simply, the judge was entitled to find that the evidence adduced in support of the Appellant’s claim was inadequate. There was no need for him to ask for further clarification. The burden rested with the Appellant to prove his claim in all material respects. The judge was entitled to find that this had not occurred on the issue of the illness and an alleged, consequent inability to return to this country.
12. Fourth, it is quite clear from paragraphs 30 onwards of the decision the judge had considered the Appellant’s case outside of the Rules. Reference is made to the Razgar approach on two separate occasions and in this regard ground 3 is significantly misconceived.
13. Furthermore, the judge has correctly directed himself to the important statement in SS (Congo) [2015] EWCA Civ 387 that “compelling circumstances” have to be identified by an Appellant seeking to succeed on Article 8 grounds outside the context of the Rules. The need to show such circumstances or, to put in another way, a strong or indeed very strong claim outside of the Rules has not been displaced by the recent Supreme Court judgments (MM (Lebanon) and Others [2017] UKSC 10 and Agyarko [2017] UKSC 11)
14. In his decision the judge makes reference to section 117B of the Nationality, Immigration and Asylum Act 2002. Thus, it is clear to me the judge had in mind the relevant legal framework for his assessment of Article 8 outside the context of the Rules.
15. I see no errors of law in respect of that assessment. The judge has identified the correct question for him in respect of the proportionality exercise, namely that of the existence or otherwise of compelling circumstances. He had already concluded that the Appellant could not succeed under paragraph 276ADE(1)(vi), and thus there were no very significant obstacles to the Appellant’s integration into Indian society. That was clearly a significant factor against the Appellant in any proportionality assessment.
16. Mr Saleem has argued that there were compelling circumstances, in particular the illness that prevented him from returning to this country for a year. However, as I have already concluded, the judge was entitled to find that this year-long inability was not made out by the evidence before the judge. This combined with the other findings as to the support from both within India and without during his lengthy periods out of the United Kingdom (not simply that related to his claimed illness), to show that there were no compelling circumstances.
17. Even if the judge had erred in respect of the medical evidence, and even if he should have concluded that the Appellant was unable to return to the United Kingdom for the year, as claimed, nonetheless, in my view this error would not be material to the outcome of the appeal having regard to the judge’s decision as a whole. The judge had found that the Appellant had had support in India, support from the United Kingdom, that he had been able and was still able to work in the United Kingdom, that he had previously worked in India, that he had spent many years of his life in India before coming to this country, and that he had spent a very significant period of time out of this country after the grant of discretionary leave in 2012. These findings, in conjunction with the fact that the Appellant could not meet the Immigration Rules, the relevant factors under section 117B of the 2002 Act (including the unlawful status in this country for a significant period of time) and the high threshold represented by the compelling circumstances test, all go to combine to lead me to the conclusion that it simply could not be said that there existed compelling circumstances on the facts of this case. Therefore, any error in respect of the medical issue was ultimately immaterial to the outcome of the case.
18. In light of the above the decision of the First-tier Tribunal shall stand.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The decision of the First-tier Tribunal stands.
No anonymity direction is made.

Signed Date: 8 March 2017
Deputy Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 8 March 2017
Deputy Upper Tribunal Judge Norton-Taylor