Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22932/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25th January 2016
On 7th April 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

mrs jin xin
(ANONYMITY DIRECTION not made)
Respondent

Representation:

For the Appellant: Ms K Pal (Senior Home Office Presenting Officer)
For the Respondent: Mr C Lam (Counsel)

DECISION AND REASONS

1. The respondent is a citizen of China. Her appeal against decisions to refuse to vary her leave and to remove her from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 was allowed by First-tier Tribunal Judge Housego ("the judge") in a decision promulgated on 3rd October 2015. The judge found that the decisions were not in accordance with the law and proceeded to dismiss the appeal in relation to the respondent's human rights but allow it under the Immigration Rules ("the rules").

2. Permission to appeal was sought by the Secretary of State. It was contended that the judge erred in finding that the Secretary of State had confined herself to treating the ending of the relationship between the respondent and another person as the only and determinative factor in refusing the application for further leave, following an earlier grant of leave for three years in March 2011. The judge's finding that the Secretary of State had assessed the case too narrowly formed the basis of his conclusion that the decisions to refuse to vary leave and to remove the respondent were not in accordance with the law.

3. The Secretary of State had in fact considered the most recent application under paragraph 276ADE of the rules but the respondent could not meet those requirements. She arrived in the United Kingdom in 1999 and there were no significant obstacles to her integration on return to China. The judge's overall conclusion that the appeal fell to be allowed under the rules was unsustainable.

4. In a second and related ground, it was contended that the judge gave no proper reasons for finding that the respondent met the requirements of the rules.

5. Permission to appeal was granted by a Judge of the First-tier Tribunal on 26th November 2015.

Submissions on Error of Law

6. Ms Pal, for the Secretary of State, drew attention to the letter giving reasons for the adverse decisions, dated 12th May 2014. In the letter, mention was made of the grant of discretionary leave to the respondent for a period of three years, apparently on the basis of her then subsisting relationship with another person. However, by the time the Secretary of State dealt with her application for further leave, the respondent was unable to show that she still enjoyed family life with her partner as the relationship no longer existed. Nonetheless, she sought to remain in the United Kingdom on a private life basis.

7. Careful consideration was given to the respondent's case, as was clear from the third page of the Secretary of State's letter. Mention was made there of friendships, the absence of anyone dependent on the respondent and the presence in China of her daughter, a person who might be able to offer support. What appeared in the letter undermined the judge's finding that the Secretary of State had not properly considered the case.

8. The Secretary of State maintained that discretionary leave was given to the respondent on the basis of family life with her partner. In 2014, she sought further leave on a different basis but she was simply not entitled to it as she could not meet the requirements of the rules. The Secretary of State made a proper assessment, including considering whether there were any exceptional circumstances justifying the grant of leave. The judge had not explained why he allowed the appeal under the rules.

9. In response, Mr Lam relied upon written submissions from the respondent's solicitors, contained in a letter dated 19th January 2016. In that letter, it was asserted that the Secretary of State did not challenge any of the findings of fact made by the judge. The respondent's sixteen years in the United Kingdom and her community ties were factors which fell in her favour in relation to Article 8, outside the rules. The decision showed that the judge was aware that the respondent did not fall within the rules and the grant of discretionary leave was given to her outside them. The judge was entitled to note that reasons for the previous grant appeared to be absent.

10. In the letter from the respondent's solicitors, the overall decision was described as somewhat strange as it included dismissal of the appeal on human rights grounds but a favourable outcome in relation to the rules. The respondent's solicitors accepted that the judge may have erred in allowing the appeal under the rules but, nonetheless, all the findings of fact tended to show that the respondent ought to have succeeded under Article 8.

11. Mr Lam said that the decision did appear somewhat curious. At paragraph 51, the judge found that the respondent's ties with the community had strengthened since 2011. The finding at paragraph 45 that the Secretary of State had not shown that her reasoning in refusing the respondent's application was correct was open to him. It had not been shown that the earlier grant of discretionary leave was only because of the respondent's relationship with her partner. The decision letter appeared to focus on the relationship and have little regard to other matters. These included the length of time the respondent was present in the United Kingdom, although she had no leave until 2011. It was accepted that her status was precarious. In her bundle at pages 5 and 6 were copies of a SAL 2 letter issued in 1999 which gave the respondent the right to work. Taking into account section 117B of the 2002 Act, the respondent was not a burden on public funds and she spoke English. She had never been in trouble with the police. It might be accepted that the Secretary of State's decision letter should have addressed other aspects of her life, other than her relationship. The length of her presence in the United Kingdom, at sixteen or seventeen years, was significant. The judge was entitled to make the findings he did in paragraph 45 and at paragraphs 50 to 51.

12. Even if the judge had erred in law, his findings in relation to the respondent's private life were open to him and not been challenged. The judge was entitled to find that the decisions made by the Secretary of State were not in accordance with the law.

13. In a brief response, Ms Pal said that it was clear that the Secretary of State had considered the respondent's private life ties and the length of her time in the United Kingdom. The judge had erred materially in law.

Findings and Conclusions on Error of Law

14. The outcome recorded at the end of the judge's decision is difficult to reconcile with the Secretary of State's reasons for deciding to refuse to vary the respondent's leave and to remove her to China, given in the letter of 12th May 2014. The requirements of the rules in relation to private life ties were simply not met. As the respondent's relationship with her partner, which was at the very least a substantial and relevant factor when she was given discretionary leave in 2011, had come to an end, she had no family life case under Appendix FM. The findings and conclusions made by the judge at paragraphs 39 to 51 of the decision do not engage with the rules at all.

15. It follows that no reasons, or no sustainable reasons, have been given for the decision to allow the appeal under the rules.

16. Dismissal of the human rights appeal is, on the face of it, entirely consistent with the reasoning which preceded it. At paragraph 49 of the decision, having taken into account section 117A to D of the 2002 Act, the judge correctly directed himself that little weight fell to be given to the respondent's private life ties, at least in the years between 1999 and 2011. More weight fell to be given to ties established or developed in the years 2011 to 2014, when she had discretionary leave but, overall, the judge concluded that the private life claim failed.

17. The judge accepted that the Secretary of State made a general evaluation of the respondent's circumstances but went on, in paragraph 51, to find that in refusing to vary the respondent's leave and in deciding to remove her, the Secretary of State "did not consider any matter other than the ending of the relationship" with the respondent's partner, "such as the increase to sixteen years of the (respondent's) innocuous residence in the UK and the ties ... to her community". This apparent failure was described as an error of law on the Secretary of State's part.

18. Ms Pal submitted that, in fact, the Secretary of State did consider other matters in refusing to vary the respondent's leave. I accept that submission in the light of what appears on pages 2 and 3 of the decision letter. It is clear that taken into account were the years the respondent has spent in the United Kingdom, the years she spent in China before arriving here, the precariousness of her immigration status and the absence of any expectation that she might remain indefinitely without meeting the requirements of the rules, her claim to have established many friendships, the absence of anyone dependent on her in the United Kingdom and the prospect of support on return to China from her daughter there. Overall, it is clear from the decision letter that the Secretary of State did take into account aspects of the respondent's case in addition to the ending of her relationship with her partner.

19. In the light of the decision to allow the appeal under the rules although the relevant requirements were not met, and the judge's finding that the Secretary of State impermissibly narrowed her assessment, contrary to what in fact appears in the decision letter, I conclude that the judge erred materially in law. Insufficient reasons were given for allowing the appeal as he did and for concluding that the Secretary of State's adverse decisions were not in accordance with the law.

20. Mr Lam suggested that favourable findings of fact, which were not challenged, should be preserved and a submission to this effect also appears in the written response from the respondent's solicitors. Attention was drawn to findings made in paragraphs 45, 50 and 51 of the decision. The difficulty here is that paragraph 45 merely contains a finding that the Secretary of State has not shown a "correct" reason in her decision letter and failed to identify the considerations which led to the earlier grant of discretionary leave. As noted earlier, the Secretary of State did in fact consider the respondent's circumstances more broadly. So far as paragraphs 50 and 51 are concerned, these contain the judge's view of the importance of immigration control and the way in which the Secretary of State exercised her discretion. There are no relevant findings of fact to preserve, save for the period of years the respondent has been present here (about which there is no dispute).

21. In a brief discussion regarding the venue for remaking the decision, Ms Pal was neutral and Mr Lam suggested that the First-tier Tribunal would be best, in view of the extent of the fact-finding required and a need to amend the grounds of appeal. I agree with Mr Lam and the decision shall be remade in the First-tier Tribunal at Hatton Cross.

Notice of Decision

22. The decision of the First-tier Tribunal contains material errors of law and is set aside. It will be remade in the First-tier Tribunal at Hatton Cross, before a judge other than First-tier Tribunal Judge Housego.

Signed Date

Deputy Upper Tribunal Judge R C Campbell

ANONYMITY

There has been no application for anonymity and I make no direction on this occasion.

Signed Date

Deputy Upper Tribunal Judge R C Campbell