Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23379/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 10 March 2017
On 15 March 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ali reza omrani
Respondent

Representation:
For the Appellant: Mrs H Aboni, Home Office Presenting Officer
For the Respondent: No representation

DECISION AND REASONS
1. Although this is an appeal by the Secretary of State, for convenience I will refer to the parties as they were before the First-tier Tribunal.
Background
2. The appellant is a citizen of Iran who was born on 15 June 1990. He first arrived in the United Kingdom on 6 June 2007 when he was aged 16. He claimed asylum but on 22 October 2007 that claim was refused. However, as the appellant was an unaccompanied minor he was granted discretionary leave to remain until 15 December 2007.
3. On 10 December 2007, the appellant applied to extend his discretionary leave. That application was refused on 5 February 2009 and his subsequent appeal was dismissed on 28 April 2009.
4. On 8 February 2011, the appellant applied for a residence card as the partner of an EEA national. That application was refused on 23 June 2011 and his subsequent appeal was dismissed on 16 August 2011. That relationship has since ceased and forms no part of the appellant’s case in these proceedings.
5. On 25 March 2015, the appellant made an application for leave to remain based upon his private life and Art 8. On 16 June 2015, the Secretary of State refused the appellant’s human rights claim under Art 8.
The Appeal to the First-tier Tribunal
6. The appellant appealed to the First-tier Tribunal. The appellant relied exclusively upon his private life in the UK. Judge Whitcombe heard evidence from the appellant and two supporting witnesses. They spoke to the appellant’s community activities in Exeter and, in the case of one witness, his close and long-standing friendship with the appellant.
7. The judge first dealt with the appellant’s claim under para 276ADE(1) of the Immigration Rules (HC 395 as amended). The judge identified that the appellant was aged 24 at the date of application and had been, at that time, in the UK for seven years and nine months. On that basis, the judge concluded that the appellant could not succeed under para 276ADE(1)(v) as he had not spent “at least half of his life” in the UK. As regards para 276ADE(1)(vi), the judge went on to consider whether there were “very significant obstacles” to the appellant’s integration into Iran. At para 35 of his determination the judge found that there were not “very significant obstacles”.
8. The judge then went on to consider whether there were “weighty and compelling factors” sufficient to outweigh the public interest such that the decision was disproportionate and so a breach of Art 8 outside the Rules had been established.
9. At para 38 the judge identified that there were “unaddressed weighty factors” due to “the strength of the appellant’s ties to the local community in Exeter through his volunteer work”. The judge reasoned at para 39 as follows:
“39. I have already set out a number of relevant considerations in the context of the ‘very significant obstacles’ test and I will not repeat them. To those considerations I add the following.
(i) The Appellant is 26 and has now been in the UK for over 9 years. On any view that is a long period, even if it falls short of the period required by paragraph 276 ADE.
(ii) The Appellant entered the UK illegally and immediately claimed asylum. His immigration status in the UK has otherwise been ‘precarious’ in the AM (Malawi) sense. That diminishes the weight that can properly be given to private life built up in the UK. However, it certainly does not mean that the Appellant’s private life carries no weight at all. It is still important to make an assessment of the nature of that private life, and to consider its overall duration which now exceeds 9 years.
(iii) The Appellant has one especially close and long-standing friendship. Kevin Hunter is clearly a significant feature in the Appellant’s life. While it would no doubt be possible to maintain contact with Mr Hunter by using the ‘modern methods of communication’ habitually referred to in refusal letters, it would certainly not be possible for the Appellant and Kevin Hunter to enjoy the same close friendship and to share the various activities that have been a feature of their lives in recent years.
(iv) The Appellant has become involved in a number of different, worthwhile voluntary activities that have benefitted his community. While he might be able to undertake similarly worthy work in Iran, he would not be able to continue his valuable work for communities in Exeter from Iran. The Appellant is not only well integrated into the community in Exeter, he makes a significant contribution to it.
(v) The Appellant already speaks very good English and in that sense the prospects for integration into British society are excellent. Indeed, the issue is not really one of potential. There is already plenty of evidence of the Appellant’s successful integration into British society.
(vi) Despite having left school in Iran aged 11, the Appellant has taken advantage of educational opportunities in the UK and has gained recognised qualifications in Maths and English. He has already enhanced his employment prospects by doing so. I believe the Appellant when he says that he wants to gain additional qualifications in the future. In my assessment he is likely to find work and is unlikely to be a burden on public funds.
(vii) I recognise that the failure to satisfy the requirements of the Immigration Rules weighs against the Appellant since those Rules are effectively a statement of public policy.”
10. Then at para 40, the judge applied the Razgar tests:
“40. Applying a Razgar test I find as follows.
(i) The Appellant has built up a valuable and significant private life in the UK over the last 9 years.
(ii) The Respondent’s decision interferes with that private life to an extent sufficient to engage Article 8 ECHR.
(iii) The interference is in accordance with the law because it is in accordance with the Immigration Rules.
(iv) I recognise that there is a strong public interest in firm immigration control and that it amounts to a legitimate aim. I accept that the Respondent’s decision was taken pursuant to that aim.
(v) On proportionality, there are clearly factors pointing both ways, and I have weighed them all carefully. Overall, I resolve this question in favour of the Appellant. The strength and duration of his private life in the UK outweigh the countervailing public interest factors, notwithstanding his precarious immigration status. The Respondent’s decision is therefore disproportionate to her legitimate aim.”
11. At para 41, the judge concluded that the Secretary of State’s decision breached the appellant’s right to private life under Art 8 of the ECHR and the judge allowed the appeal on that basis.
The Appeal to the Upper Tribunal
12. The Secretary of State sought permission to appeal to the Upper Tribunal on three grounds. First, it was not properly open to the judge to conclude that there were “compelling” circumstances based upon the appellant’s nine years’ residence in the UK including his claimed benefit to the community through his voluntary activities. Secondly, the judge had wrongly taken into account that the appellant spoke good English contrary to AM (s.117B) [2015] UKUT 0260 (IAC). Thirdly, the appellant had failed to disclose to the judge that he had a number of convictions in 2015.
13. Initially, permission was refused by the First-tier Tribunal, but on 8 December 2016 the Upper Tribunal granted the Secretary of State permission to appeal on the basis that the:
“factors identified by the judge as speaking [in] the appellant’s favour cannot rationally amount to compelling factors such as to demand an outcome in the appellant’s favour.”
The Submissions
14. Before me, the Secretary of State was represented by Mrs Aboni. The appellant was no longer legally represented but appeared in person.
15. Mrs Aboni relied upon the grounds. She submitted that it was irrational to conclude that there were compelling circumstances sufficient to outweigh the public interest in the light of the judge’s findings that there were not “very significant obstacles” to the appellant’s integration into Iran and that his private life had been formed at a time when his leave was precarious.
16. Mrs Aboni also relied upon the non-disclosure by the appellant of his convictions. She accepted that the Secretary of State had not raised the issue in the refusal letter and she accepted that there was no evidence before me as to the claimed convictions. The only material she could draw to my attention was the bare assertion in the grounds of the 2015 convictions.
17. The appellant relied upon his private life, namely his contribution to the community and his friendship. He also added that he was also helping Exeter City Football team in a project he called “Exeter Respect” which brought together different nationalities. He also referred to a tournament for the university that he was assisting with.
18. At the close of the submissions, the appellant’s friend (Mr Hunter) also confirmed that he had known the appellant for eight years as a friend and in the community. He told me about the appellant’s help when his wife was unwell and also that they were planning a multicultural football team and were seeking funding from the Football Association for it. The appellant would be the captain as he was the best player in the team.
19. In addition, Dr George (who had given evidence before the judge) briefly told me that the appellant was an asset and hoped that he would be able to stay.
Discussion
20. I will deal first with the issue of the appellant’s claimed convictions. The difficulty facing the Secretary of State in relation to this is that there is no evidence of the appellant’s convictions other than the bare assertion in the grounds. As I have already indicated, Mrs Aboni accepted that and was unable to provide any supporting evidence for the claim in the grounds that he had the 2015 convictions. There is no reference to any convictions in the Secretary of State’s decision letter and she was not represented before the judge. There is, therefore, no factual basis upon which any obligation to disclose to the judge can be founded. A printout of any convictions could have been provided for the hearing before me but was not. Consequently, I reject this ground of challenge.
21. Turning to the challenge to the judge’s approach to Art 8, it is contended that the judge was wrong to take into account that the appellant spoke “very good English” in para 39(v). If the judge had taken that into account as, in some way, diluting the public interest recognised in s.117B(2) of the NIA Act, then he would have misdirected himself (see Rhuppiah v SSHD [2016] EWCA Civ 803). However, that is not, in my judgment, the basis upon which the judge in para 39(v) took into account the appellant’s ability to speak very good English.
22. In para 40(v), the judge referred to the “countervailing public interest factors” (my emphasis), clearly contemplating more than one and, therefore, not restricting that side of the balancing exercise to the obvious one that the appellant could not meet the requirements of the Immigration Rules (s.117B(1) of the NIA Act 2002). In truth, for the judge, the relevance in para 39(v) is to the other side of the balance, namely that the appellant has established, and will continue to establish, integration and, therefore, reflected in the nature and extent of his private life in the UK. I do not read para 39(v) as an indication that the judge impermissibly diluted the public interest.
23. Likewise, the judge’s reference in para 39(vi) to the appellant being likely to find work and unlikely to be a burden on public funds is, in my judgment, said in the context of the appellant’s private life established in the UK as a result of educational opportunities and qualifications he has obtained in the UK which will, of course, add to his already established private life in the UK.
24. Both points are made as aspects of the appellant’s “integration” into the UK which remains a relevant factor under Art 8.2 beyond the specific, and negative, aspects of the public interest in s.117B(2) and (3).
25. Turning to the issue of the appellant’s contribution to the community and its relevance in the Art 8.2 assessment, the Secretary of State’s grounds place reliance upon the Court of Appeal’s decision in UE (Nigeria) and others v SSHD [2010] EWCA Civ 975.
26. In that case, the court was concerned with whether a judge had erred in law by failing to take into account an individual’s contribution to the community. The Court of Appeal concluded that such contribution was relevant in two respects: first, in assessing the impact upon an individual’s right to privacy if removed; and secondly, in assessing the weight to be given to the public interest because of the loss of benefit to the community (see [32] per Sir David Keene). Having referred to the earlier decision of the Court of Appeal in MA (Afghanistan) v SSHD [2006] EWCA Civ 1440 where it had been stated that “contribution to the community is not a freestanding factor to be taken into account” (at [40]), Sir David Keene continued:
“It may be that they are intending to indicate that the value to the community has no independent significance aside from the issue of the public interest and aside from the issue of the impact on the individual’s right to a private life. If that is so, I have no difficulty in accepting those observations, since the correct approach in my judgment is to consider whether the public interest in the removal of that person is reduced because of the loss of some benefit to the community which would result. In other words it is a factor which goes to the public interest side of the balance. In that sense it is not freestanding but simply an element in the assessment in the public interest which is seeking to achieve the maintenance of effective immigration control.”
27. At [35], Sir David Keene stated:
“For my part, therefore, I conclude that it is open to this court to find that the loss of such public benefit is capable of being a relevant consideration when assessing the public interest side of proportionality under Article 8 and as a matter of principle I do so find.”
28. Richards LJ also accepted that “contribution to the community” was relevant in an Art 8 claim because (at [41]):
“[i]t can affect the balance only insofar as it is relevant to the legitimate aim or the private life claim.”
29. At [42], Richards LJ noted that:
“[i]t is common ground that community activities may affect the strength of the private life claim ...”
30. At [43], Richards LJ stated that:
“… I would accept that the matters relied on here by way of contribution to the community are indeed capable in principle of affecting the weight to be given to the maintenance of effective immigration control. I agree that that public interest aim can and should be viewed sufficiently widely and flexibly to accommodate such considerations.”
31. Both judges, together with Ward LJ, allowed the individuals’ appeals and remitted them back for reconsideration on the basis that the judge had wrongly excluded community contributions as relevant to the weight to be given to the public interest.
32. In UE, both Sir David Keene and Richards LJ made a number of observations concerning the significance of the “benefit to the community” issue.
33. At para 36, Sir David Keene said this:
“36. I would, however, before concluding, emphasise that, while this factor of public value can be relevant in the way which I have described, I would expect it to make a difference to the outcome of immigration cases only in a relatively few instances where the positive contribution to this country is very significant, perhaps of the kind referred to by Lord Bridge in Bakhtaur Singh. The main element in the public interest will normally consist of the need to maintain a firm policy of immigration control, and little will go to undermine that. It will be unusual for the loss of benefit to the community to tip the scales in an applicant’s favour, but of course all will depend upon the detailed facts which exist in the individual case and in particular on the extent of the interference with his private and/or family life.”
34. Likewise, Richards LJ at [45], having found that the judge was wrong not to consider the individuals’ contribution to the community, went on to state:
“I doubt whether, if properly taken into account, it would have made any difference to his ultimate conclusion, but I cannot say that he would clearly have reached the same conclusion in any event.”
35. The case of Bakhtaur Singh (R v IAT ex parte Bakhtaur Singh) [1986] Imm AR 352) referred to by Sir David Keene in UE was one where the individual was the part of an Indian folk music group. There, in the context of deportation (now it would be removal), the issue arose as to whether the effect of his deportation on the Sikh community was a relevant “compassionate circumstance”. In that case, the House of Lords set aside the decision of an adjudicator who had failed to take into account the contribution made by the applicant to the Sikh community. Lord Bridge (delivering the only reasoned speech and with which the other Law Lords agreed) gave a number of examples where, it was common ground between the parties, that the impact upon others (including the community) could be taken into account. At page 358, Lord Bridge said this:
“… it was not disputed that the effect of deporting a particular individual on third parties other than his family and persons intimately connected with him may well be a factor which is relevant to the discretionary decision whether he should be deported or not. A number of examples will make this clear. 1. A person liable to deportation has been carrying on business in partnership. His deportation will ruin the partnership business. 2. A person liable to deportation is an essential and irreplaceable worker for a company engaged in a successful export business. His deportation will seriously impair the business. 3. A person liable to deportation is a social worker upon whom a particular local community has come to depend. His deportation will deprive the local community of his services which would be difficult to replace. 4. A person liable to deportation is an indispensible member of a team engaged in scientific research of public importance. His deportation will put at risk the benefit which the public would enjoy if the research was successful.”
36. Lord Bridge continued:
“I have tried to choose the examples so as to illustrate the possibility of the third party interests in avoiding deportation extending to a progressively widening circle and ultimately to the public at large.”
37. At page 361 Lord Bridge observed:
“The question what weight is to be attributed to third party interest of the kind I have been discussing which would be adversely affected by a decision to deport is entirely a matter for the Secretary of State or the appellate authorities exercising discretion under the statute and must depend upon all the other relevant circumstances in the context of which the decision falls to be made. It may well be difficult to attach any considerable weight to the third party interest affected if the person liable to deportation has established his reputation and proved the value of his services from which the third party interest arises during a period when his presence in this country was in contravention of the immigration laws.”
38. Nothing in Part 5A of the Nationality, Immigration and Asylum Act 2002 (the “NIA Act 2002”) calls into question the approach of the Court of Appeal in UE. Section 117B of the NIA Act 2002 sets out a number of factors that it is mandatory for a decision maker to “have regard” to in determining proportionality under Art 8.2 (see s.117A(2)) but does not set out an exhaustive list of relevant factors (see, e.g., Rajendran (s.117B – family life) [2016] UKUT 138 (IAC)).
39. Consequently, Judge Whitcombe was entitled to take into account the appellant’s community activities which he sets out at paras 27-31 of his determination, both in assessing the strength and depth of the appellant’s private life in the UK and also in assessing what weight to give the public interest having regard to the community contribution made by the appellant which would be lost if he left the UK.
40. The judge’s findings in paras 39 and 40 (set out above) have to be read in the light of this evidence which he summarised at paras 27-31 as follows:
“27. For several years prior to 2011 the Appellant was involved with the ‘Open Space International Youth Club’. Writing in 2011, Dr George described him as a trustworthy and committed young man who had been a very active and valuable ‘Community Champion’ when undertaking voluntary work with that organisation. He has encouraged young people from BME communities to come to various activities and had been involved in running the South West National Citizenship Service. Dr George described the Appellant as a dedicated and dependable young volunteer and an asset to the community, working with ethnic minorities as well as local British communities.
28. Writing in 2015, Dr George had become the Chair of the ‘Open Space International Football Club’ which is based in Exeter and plays in a local league. Once again, the Appellant was described as a dedicated and dependable volunteer, an asset to the community, and as someone who worked productively with all ethnic minorities as well as local communities.
29. The Appellant has obtained a certificate of National Citizen Service. He has been a volunteer at Exeter Respect Festival. He is involved with the community activities of Exeter Football Club.
30. In her oral evidence Dr George described the Appellant as someone from a Muslim background who was now living a secular lifestyle. He had lived with his unmarried, non-Muslim partner. He sometimes has a pint of beer. He is not integrated into the local Muslim community. He was described as “an Exeter boy”.
31. The Appellant told me of his close friendship with Kevin Hunter, who he has known for 7 or 8 years now. They play football together, socialise together and organise football tournaments together. The Appellant sometimes looks after Mr Hunter’s daughter.”
41. It is clear that Judge Whitcombe had regard to, as he was entitled, the appellant’s contribution to voluntary work including young people from BME communities and ethnic minorities in Exeter. There is no doubt that Judge Whitcombe carefully assessed the evidence and reached a conclusion that the appellant was well integrated into the community in Exeter and made a “significant contribution” to it. Whilst it might not be a contribution rising to the level of “scientific research of public importance”, it would be difficult to criticise the judge for analogising (had he chosen to do so) the depth of the appellant’s community contribution as being in the same ‘ball-park’ as a social worker (upon whom a particular local community has come to depend). The judge was entitled to regard the appellant’s community activities with ethnic and other minorities as an important factor in determining both the depth of the appellant’s private life in the UK and the weight to be given to the public interest if that contribution was lost.
42. In this regard, therefore, Mrs Aboni’s submission was that in carrying out the balancing exercise under Art 8.2 the judge’s decision was perverse or irrational. I do not accept that submission.
43. Judge Whitcombe was clearly alive to the public interest indeed – as he put it – the “strong public interest in firm immigration control”. He also took into account the impact upon the appellant of returning to Iran and his factual findings in para 35 that led him to conclude that there were not “very significant obstacles” to his return. That, however, as the judge recognised did not determine the issue under Art 8.2 of “proportionality” which required a “fair balance” to be struck having regard to all relevant factors (see R (Agyarko) and another v SSHD [2017] UKSC 11). That included the appellant’s contribution to the community as I have identified above. The weigh to be given to all the factors, including the appellant’s community contribution, was very much a matter prima facie for the judge. In order to establish that the judge’s weighing of the relevant factors was irrational or perverse, it must be established that no reasonable judge having regard to those factors could have reached the conclusion that the appellant’s removal was disproportionate. The judge clearly directed himself that there was a need to establish “compelling” circumstances (see para 13). The judge was well aware that the appellant’s private life had been established whilst his immigration status was precarious or, for some of the period, when he had no leave (see paras 39(ii) and 40(v)). As Lord Diplock put it in CCSU v Minister for the Civil Service [1985] 1 AC 374 the issue is whether the judge’s decision was “so outrageous in its defiance of logic or accepted moral standards that no sensible person would apply his mind to the question to be decided could have arrived at it”? (at page 410). Whilst it would, no doubt, have been open to the judge to have reached a different conclusion by weighing the factors differently that, in itself, does not establish perversity or irrationality. As Carnwath LJ (as he then was) said in Mukarkar v SSHD [2006] EWCA Civ 1045 at [40]:
“It is of the nature of such judgments that different Tribunals, without illegality or irrationality, may reach different conclusions on the same case … the mere fact that one Tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law, so as to justify an appeal …”
44. Generous though the judge’s decision was, in the sense that not every judge would necessarily have reached the conclusion he reached, I am unable to say that the judge’s decision and findings were not within the bounds of reasonable decision making and were irrational or perverse.
Decision
45. For these reasons, the First-tier Tribunal’s decision to allow the appellant’s appeal under Art 8 did not involve the making of a material error of law and its decision stands.
46. Accordingly, the Secretary of State’s appeal to the Upper Tribunal is dismissed.

Signed

A Grubb
Judge of the Upper Tribunal

Date

TO THE RESPONDENT
FEE AWARD
In allowing the appeal, Judge Whitcombe made a whole fee award of £140 and, in dismissing the Secretary of State’s appeal, I see no basis to depart from that which, as a result, stands.

Signed

A Grubb
Judge of the Upper Tribunal

Date