Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27287/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30 November 2016
On 9 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

MS JHANIQUE JOLEEN CHEVORN ODESSA SAYERS
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Karim of counsel
For the Respondent: Mr T Wilding, a senior Home Office Presenting Officer

Decision
Introduction
1. The appellant is a citizen of St Vincent and the Grenadines whose date of birth is 28 December 1990. She claims to have entered the United Kingdom on 22nd July 2001 aged 10 years with her mother on a visit visa. She remained in the United Kingdom, after the expiry of the visit visa, unlawfully. On 2 April 2015 she applied for leave to remain in the UK on the basis of her private life. The respondent refused that application because (insofar as is relevant to this appeal) she was not satisfied that the appellant had provided evidence that she had been living continuously in the UK since 2011 and did not therefore meet the requirements of the Immigration Rules HC395 (as amended) ("the Immigration Rules").
2. The appellant appealed against that decision to the First-tier Tribunal. In a decision promulgated on 8 July 2016 First-tier Tribunal Judge J G MacDonald dismissed the appellant's appeal. The First-tier Tribunal found that there would not be very significant obstacles to the appellant integrating into St Vincent and the Grenadines and that it would be proportionate for the appellant to be removed from the UK.
3. The appellant applied for permission to appeal to the Upper Tribunal. The grounds of appeal assert that the appellant was aged under 25 and had spent half of her life in the UK and therefore met Paragraph 276ADE(1)(v). The grounds of appeal also assert that the appellant's date of birth is 28/12/1992 and that at the date of the hearing she was 24. It is asserted that the appellant meets the requirements of Paragraph 276ADE(1)(v) and that this Paragraph has no additional test of 'very significant obstacles'. On 28 October First-tier Tribunal Judge Hollingworth granted permission to appeal. Thus the appeal came before me.
The hearing before the Upper Tribunal
4. At the commencement of the hearing Ms Karim indicated that she had discussed matters with Mr Wilding and that the she understood that the Secretary of State, having accepted in the Rule 24 response that the First-tier Tribunal decision disclosed a material error of law, accepted that the Immigration Rules are satisfied.
5. Mr Wilding confirmed that it was now accepted that the appellant met the requirements of Paragraph 276ADE(1)(v). He submitted that the confusion at the hearing before the First-tier Tribunal may have arisen because at the date of the hearing the appellant was aged 25 years. The relevant date for ascertaining the appellant's age was at the date of the application in these circumstances.
Discussion
6. It was accepted before the First-tier Tribunal that the appellant had spent more than half her life in the United Kingdom (paragraph 7). The judge then set out:
"?The test, under the Immigration Rules, was whether or not there were "very significant obstacles" to her return to her country of nationality?"
7. Paragraph 276ADE(1)(v) provides:
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
8. The grounds of appeal wrongly assert that the appellant was born in 1992 and was 24 at the date of the hearing. The appellant was born in 1990 and would have been 25 at the date of the hearing. However the relevant date is the date of application. At the time of the application the appellant was aged 24. Although she had not provided the necessary evidence with her application, in the bundle of documents before the First-tier Tribunal there was evidence that she had been in the UK since 2011 and therefore I consider it was correct for the presenting officer to have accepted at the hearing that the appellant had lived in the UK for half of her life. There is no requirement that the appellant must demonstrate that there are very significant obstacles to her integration in order to satisfy the requirements of Paragraph 276ADE(1)(v).
9. The First-tier Tribunal materially erred in law in considering that the appellant must satisfy the "significant obstacles" test. I set aside that decision.
10. I re-make the decision. The appellant's appeal against the Secretary of State's decision is allowed.

Signed P M Ramshaw Date 9 December 2016

Deputy Upper Tribunal Judge Ramshaw