Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23119/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 October 2016
On 10 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

ZUBAIDA NAZ
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Bazini, of Counsel, instructed by E2W (UK) Ltd
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer

DECISION ON ERROR OF LAW

Anonymity
1. The First-tier Tribunal did not make an anonymity order. I have not been asked to make one and I see no public policy reason for doing so and so none is made.

Background
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Talbot who dismissed the Appellant's appeal against the Respondent's decision refusing to vary her leave to remain and a concomitant decision to remove her to Pakistan contrary to Section 47 of the Immigration, Asylum and Nationality Act 2006.
3. The Appellant is a national of Pakistan born on 20 September 1954. She arrived in the United Kingdom on 17 December 2013 with entry clearance conferring leave to enter as a visitor until 14 April 2014. On 28 March 2014 the Appellant applied for leave to remain in the United Kingdom contrary to Article 8 of the ECHR on the basis of family and private life. The Respondent refused the application under the Immigration Rules and concluded that there were no exceptional circumstances to warrant a grant of leave outside of the Rules.
The Decision of Judge Talbot
4. The Appellant's appeal came before First-tier Tribunal Judge Talbot (hereafter "the Judge"). After hearing oral evidence from the Appellant and her nephew the Judge dismissed the appeal in a decision promulgated on 11 April 2016. The Judge found the evidence of the witnesses 'to be broadly credible'. He accepted the Appellant had established 'strong ties with her extended family members in the UK including her nephew and his family', and that her status as a divorcee was viewed adversely by some of her family members and the wider Pakistani society. The Judge further accepted that the Appellant had been living with her elderly and ailing older brother in Pakistan in an overcrowded house in dilapidated conditions, and that he and his family may be reluctant to have the Appellant return to live with them ([24]-[25]). The Judge made reference to the Appellant's health and noted that she was able to manage her diabetic condition in Pakistan and he was not satisfied that she would be unable to do so on return [26]. The Judge went on to consider paragraph 276ADE of the Immigration Rules and found that the Appellant did not qualify for leave there under [27] and proceeded to consider the claim outside of the Rules contrary to Article 8 of the ECHR. He concluded that the Appellant had established a family and private life and that there would be a sufficiently grave interference with her right to private and family life as to engage the operation of Article 8 [30]. The crux of the Judge's findings relating to the proportionality of removal was as follows:
"34. There are certainly compassionate factors in the Appellant's favour, as has been put forward by her and her brother and by Mr Bazini. She would be returning to Sri Lanka (the reference to an incorrect country of removal is unfortunate but nothing materially turns on it) in difficult circumstances and, although I am not satisfied that her brother would refuse to accommodate her, she may well feel that she would be unwelcome particularly by members of his family and the living conditions would be uncomfortable. She would also, I am sure, miss the warm family atmosphere that she enjoys with her extended family in the UK. Living in her own rented accommodation would be an option with the financial support of her UK-based relatives, but I accept it is not one she would willingly choose. I note the reference in the Home Office Country Guidance on 'Single Women' (paragraph 2.4) which states that it is not generally socially acceptable for women to lie (sic) alone, albeit it is easier in urban areas such as the Appellant's home town of Lahore but that remains 'quite a rare occurrence'. The report of the Immigration and Refugee Board of Canada makes similar comments but states: 'older women can live alone but still they feel insecure socially and physically'."
35. In making an overall assessment, I note from Huang(2007)UKHL 11, SS(Congo) and other jurisprudence that there is no exceptionality test as such but that there must be circumstances that are sufficiently compelling to outweigh the public interest factors represented by the Secretary of State. I have set out the balancing factors and I am not satisfied that the compassionate circumstances in this case are sufficiently compelling as to outweigh the public interest factors. I have to conclude that the Respondent's decision would not constitute a violation of the Appellant's Article 8 rights and that the interference caused to her private and family life would not be disproportionate to the Secretary of State's legitimate aim in the maintenance of a system of immigration control."
Permission to Appeal
5. Permission to appeal was granted on limited grounds, namely, grounds two and three by First-tier Tribunal Judge Ransley on 5 September 2016. In respect of ground two it was arguable that the Judge in assessing the question of proportionality failed to consider the best interests of the children and the impact of the Appellant's removal upon them and, secondly, in respect of ground three, it was arguable that the findings were contrary to the evidence and failed to take into account a material consideration.
6. At the hearing I heard submissions from both representatives following which I announced that the decision involved the making of an error on a point of law. My reasons are set out below.
Error of Law
7. There is no challenge to the Judge's decision under the Immigration Rules. The focus of the Appellant's appeal relates to the proportionality assessment carried out by the Judge in the paragraphs quoted above at [4]. While the Judge considered the factors he was required to consider by primary legislation under section 117B, it is incumbent on the Judge to deal with all matters that are relevant to the assessment of proportionality as dictated to by the evidence in the case. While Ms Brocklesby-Weller made every effort to defend the Judge's decision, even she acknowledged that it would have been desirable for the Judge to have conducted a more comprehensive analysis of the facts. I agree and conclude that in this case the Judge did not undertake an evaluative assessment of all relevant factors when conducting the balancing exercise under Article 8(2). My reasons are as follows.
8. In relation to the second ground, the evidence showed that the Appellant had formed inter alia unusually strong ties to her nephew's minor children. This evidence was set out in the witness statements of the Appellant and nephew respectively. Therein they both described the Appellant's relationship with the children being akin to that of a grandmother and grandchild. The evidence plainly demonstrated that there was a symbiotic relationship between the Appellant and her nephew's children who relied on her for nurture and support (the Respondent's rule 24 response stating that the children were not dependent on the Appellant is contrary to the evidence in this regard).
9. The Judge accepted the substance of these relationships in finding that the Appellant had established strong ties with her nephew and his family and that family life had thus been established in the UK. It was argued before the Judge that the impact of the Appellant's removal would have consequences for the nephew's minor children given their strong ties to the Appellant. In view of that background, and as the Judge accepted that Article 8 was engaged, I find that a duty to consider section 55 of the BCIA 2009 and the best interests of the children was thus engaged. At the very least, the Judge was required to consider the human rights of all family members said to be affected by the decision: see Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39. The consideration is absent. I am satisfied and find therefore that the Judge's failure to consider the best interests of the children and their human rights, in terms of the impact of the Appellant's removal upon them, is an error of law material to the assessment of proportionality. I find the second ground is made out.
10. There are several facets to the third ground which essentially asserts that the Judge's reasoning in respect of proportionality is fundamentally flawed. I do not need to deal with each and every one of them as the following in combination with the above error is, I find, sufficient to establish that the Judge's assessment is flawed and cannot stand.
11. It was the Appellant's claim that she could not return to live with her brother as before in Pakistan. Her brother had not been able to support her for a number of years; he was bedridden and dependent on his children; the house that he lived in with his family was overcrowded and dilapidated, and his children who were embroiled in a dispute over their claims to the property did not want her to return there. While the Judge correctly observed that there was no explicit reference in the brother's statement that he would refuse to accommodate the Appellant, I agree with the submission of Mr Bazini that the evidence clearly indicated that the issue of whether the Appellant could live in the house in Pakistan was no longer in the hands of the brother, but that of his children. The Judge at [34] plainly failed to take all these material factors adequately into account, and his conclusion that the brother would not refuse to accommodate her, is not supported by the overall evidence that was before him.
12. I also agree with Mr Bazini that the Judge's assessment of whether the Appellant could live alone in Pakistan is speculative and inadequately reasoned. Whilst he set out the background evidence relating to single women in Pakistan and their ability to live alone, he failed to consider the Appellant's individual characteristics and whether expecting her as an older woman to live alone in an environment where she would still feel socially and physically insecure was proportionate. The purported analysis of this issue is incomplete.
13. In summary, I find that the Judge failed to properly and fully assess the realities of the situation awaiting the Appellant on return in view of the accepted facts.
14. For all these reasons the Judge's approach to the issue of proportionality is flawed and is set aside.
Disposal
15. Both parties invited the Tribunal to remit the matter to the First-tier Tribunal for the decision to be remade. By paragraph 7.2 of the relevant practice statement for appeals on or after 25 September 2012, I must be satisfied that:
"... the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2 it is appropriate to remit the case to the First-tier Tribunal." In all the circumstances I am satisfied that it would be appropriate to remit the case to the First-tier Tribunal - there was an indication that there is a change of circumstances and further evidence may be required from the Appellant.
Notice of Decision
The decision involved the making of an error on a point of law and is set aside.
The appeal is remitted to the First-tier Tribunal for rehearing.
No anonymity direction is made.
Directions to the Parties
1. The issue in the remitted appeal is: whether the Appellant's removal is proportionate contrary to Article 8(2) of the ECHR in light of the circumstances prevailing at the date of next hearing.
2. The Judge's findings of fact are preserved.
Procedural Directions
1. The appeal is remitted to the First-tier Tribunal to be re-listed on a date to be fixed.
2. The remitted appeal shall not be heard by First-tier Tribunal Judge Talbot.
3. Any further evidence to be called by the Appellant must be set out in a witness statement to stand as evidence-in-chief.

Signed Dated

Deputy Upper Tribunal Judge Bagral