Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26005/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 3 April 2017
On 4 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

ZZM
(ANONYMITY ORDER MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hussain of Counsel
For the Respondent: Mr Diwyncz a Home Office Presenting Officer

DECISION AND REASONS
Background
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify ZZM or any of his family members. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so in order to preserve the anonymity of one of the family members who has mental health issues.
2. The Respondent refused ZZM’s application for leave to remain as the spouse and step parent of persons present and settled here on 13 November 2014. His appeal against this was dismissed by First-tier Tribunal Judge Brookfield (“the Judge”) following a hearing on 5 July 2016.
3. In summary, the Judge found that
(1) He had a genuine and subsisting relationship with a British national who he married on 19 April 2016 and who worked here [9 (ii)].
(2) He had failed to establish he could not return to China [9 (iii)].
(3) He speaks Mandarin but no English. He has linguistic ties to China but not the United Kingdom. He does not work here. He would have the right to work in China. There is no extended family here. His mother and 7 siblings live in China. He is in touch with a friend in China [9 (iv)].
(4) His wife is from Malaysia and speaks Mandarin. She had problems with her 1st husband. She was able to leave him, raise her 2 children (both now adults), and set herself up in a takeaway business despite her inability to speak English. She will be able to adapt to life in China and have the support of the Appellant. There are no insurmountable obstacles to them continuing their relationship in China [9 (5)].
(5) He lived in China for 23 years. He has lived here for 15 years. His mother and 7 siblings live in China. He speaks Mandarin. He has the right to work in China. There will be no very significant obstacle to his integration into China [9 (vii)].
(6) He has lived with his wife since 2011. They have a family life. The decision is in accordance with the law, and has the legitimate aim of protecting the rights and freedoms of others and economic interests of the UK by operation of immigration control [9 (viii)].
(7) His wife lived in Malaysia until she came here in 1999. The children were born in Thailand and lived there until 9 or 10 years ago when they came here. She speaks no English. She could adapt to the culture in China with the help and support of the Appellant [9 (ix)].
(8) Her children have lived here for 9 or 10 years having previously lived in Malaysia. The 20 old daughter suffers from depression. The medical evidence does not advise that her mental health would prevent her accompanying the family to China. There was no evidence to suggest the adult son would have any problems in China [9 (x)].
(9) Both of the children speak Mandarin. Neither of them work or study. They would have the support of the Appellant and their mother in China. There is no evidence the daughter would be unable to access medical attention in China for depression and anxiety. They will be able to settle in China and enjoy family life there [9 (xi)].
(10) If she and the children remain here they will be able to enjoy telephone and video calls with the Appellant, apply for visits, and provide emotional and financial support to each other. Family life could therefore be maintained [9 (xii)].
(11) In relation to section 117 of the Nationality Immigration and Asylum Act 2002, the Appellant does not speak English and is not financially independent.
(12) The Appellant has lived here for 15 years. He has developed a private life. He could develop one in China with new friendships or renewing old ones. He has a friend in China. He could maintain contact from China with friends he has made here. His wife and her children could establish a private life in China particularly as they speak Mandarin and would be able to integrate there. They could maintain contact with their friends here.
The grant of permission
4. Judge Parker granted permission to appeal (30 December 2016). He said it is arguable that the Judge erred in relation to the lack of a legal framework for consideration of the relationship with his stepdaughter, the lack of reasons as to why he was considering the appeal outside the immigration rules, and his failure to apply a Razgar structured consideration of the article 8 appeal.
Respondent’s position
5. Mr Diwnycz relied on the Rule 24 notice (17 January 2017) which in essence asserts that the Judge directed himself appropriately, applied the correct legal framework, made findings open to him on the evidence, and fully considered the stepdaughter’s health issues.
Discussion
6. The Judge clearly made findings fact open to him. He took into account the nature and extent of the relationship between the Appellant and his wife, their respective backgrounds, her resilience in the face of adversity, the adult daughter’s health issues, the conflicting evidence as to the extent of those problems, the fact that the adult son had no health problems, each adults’ linguistic capacity and work record, and the difficulty each of them individually and collectively would have to integrate into life in China. The Judge was entitled in light of those findings to determine that there no very significant obstacles to family life continuing in China.
7. The Judge was entitled to find that there were no compelling circumstances even enabling an article 8 assessment to be undertaken. However, in a belt and braces approach, the Judge did so.
8. The suggestion that the Judge did not apply the Razgar framework entirely ignores [9 (viii)] which sets out the criteria without naming the case. The Judge then goes on to consider proportionality in detail.
9. One only has to read the lengthy and careful decision to see that there was no merit whatsoever in the application. It is difficult to see why permission was granted.

Decision:
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision.

Deputy Upper Tribunal Judge Saffer
3 April 2017