Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/28316/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 30 May 2013
On 4 June 2013
Prepared 31 May 2013

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

ROMA SARWAR
(NO ANONYMITY ORDER MADE)

Respondent

For the appellant: Ms Tanner, Presenting Officer
For the respondent: Mrs S Ali, Counsel, instructed by Shezad Sajid

DETERMINATION AND REASONS

1. The appellant, who was not represented before the First-tier, appeals with permission against the determination of the First-tier Tribunal Judge Adio promulgated on 8 April 2013 allowing the respondent’s appeal against the decision of the appellant made on 21 November 2012 to refuse to vary her leave to remain and to remove her by way of directions pursuant to section 47 of the immigration, Asylum and Nationality Act 2006.

2. The respondent is a citizen of Pakistan. She most recently entered the United Kingdom with leave to remain as a student on 25 October 2008. Her mother has indefinite leave to remain here, as has her brother. Her sister also lived here. Her father, his second wife and their children live in Italy. It is her case that she has established a private life in the United Kingdom and also a family life with her mother who has cared for her all her life. She has no family to look after her in Pakistan, and has few ties there. She submitted that in consequence, her removal to Pakistan would be in breach of the United Kingdom’s obligations pursuant to article 8 of the Human Rights Convention.

3. The appellant refused the application on the basis that the family life claimed did not constitute family life as set out in Appendix FM of the Immigration Rules and that she did not meet the requirements of paragraph 276 ADE of the Immigration Rules.

4. On appeal against that decision, the judge heard evidence from the respondent and submissions from Mrs Ali. The appellant did not attend, and there is no indication that she made any further submissions.

5. The judge allowed the appeal, finding that:

(i) The respondent’s immediate family were all living in the United Kingdom [8];

(ii) The respondent did not meet the requirements of paragraph 276 ADE [9], finding that she had cultural ties to Pakistan as well as some relatives with whom she was not on good terms;

(iii) The respondent has a private life in the United Kingdom [10];

(iv) The respondent has a family life in the United Kingdom [11] with her mother, is not living an independent life, and that her mother has (apart form 3 years) always been responsible for her upbringing;

(v) Removing the respondent to Pakistan would interfere with her right to respect for her private and family life which was disproportionate to the legitimate aim of removing her [14,15]

6. The appellant sought permission to appeal against that decision on the grounds that:

(i) The judge had erred in failing to give adequate reasons for finding that the respondent’s article 8 rights would be infringed; that she had had no legitimate expectation of remaining her indefinitely; and, the judge had failed to identify any private life rights she had established at the date of hearing.

(ii) The judge had erred in finding that the respondent had established a family life, no compassionate circumstances being put forward to show established ties over and above emotional ties; and, erred by placing inordinate weight on the respondent’s mother’s witness statement.

(iii) The judge had been inconsistent in finding that the respondent had not severed all ties in Pakistan and so did not meet the requirements of paragraph 276 ADE, and his findings at paragraph 13 (corrected to paragraph 9 by Ms Tanner); that the respondent would be able to re-establish links with family members in Pakistan, would not be a single woman without family support, and would be returning to live in the same circumstances as before. It is also claimed that the judge failed to give proper weight to the respondent’s legitimate aim in maintaining immigration control.

7. Permission to appeal was granted on all grounds by First-tier Tribunal Judge Parkes on 25 April 2013.

Did the determination of the First-tier Tribunal involve the making of an error of law?

8. Ms Tanner sought to expand the grounds of appeal, seeking to argue that the judge had erred in failing to take into account the nature of the appellant’s leave to remain in assessing proportionality; and, had erred in failing to take a two-stage approach to that assessment, first under the immigration rules, and then whether, following the guidance published by UKBA, there are exceptional circumstances, the appellants case being that exceptional means that there would be unjustifiable harshness in removing in an individual.

9. I do not accept that it is implicit within the grounds that the appellant’s challenge to the assessment of proportionality should have taken into account the nature of the respondent’s leave to remain. While her leave is mentioned [1] that is in the context of her having no legitimate expectation of remaining her indefinitely.

10. Further, no prior application was made to amend the grounds of appeal was made, nor had the proposed amendments been reduced to writing, or prior notice of this given to the respondent. I was not satisfied that, in all the circumstances of this case, particularly when the appellant had elected not to be represented before the First-tier Tribunal, that it was in the interests of justice to permit an amendment of the grounds of appeal.

Ground 1

11. There is no merit in this ground. The judge identified that the respondent had established some private life here [10], but the appeal was allowed on the basis of his finding that the respondent had established a family life in the United Kingdom. It is not, in the light of MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) properly arguable that paragraph 276 ADE is the end point for the consideration of any private life.

Ground 2

12. While I note Ms Tanner’s submission that the judge failed properly to have regard to the decision in Kugathas, it is nonetheless evident from his consideration of the facts of this case that he had had regard to and had applied the principles set out in Gurung & Ors v SSHD [2013] EWCA Civ 8 (applying in that respect Ghising (family life – article 8 Gurkha policy) Nepal [2012] UKUT 160 9IAC)). The judge directed himself properly as to the factors to be considered, and reached the conclusion open to him that the respondent’s family life with her mother had not yet ceased, and indeed continued, taking into account the particular circumstances of the case [11,12]. The submission that he should not have placed so much weight on the statement of the respondent’s mother is simply an argument about weight which could and should have been made to the judge, and again, has no merit. Weight was a matter for the judge, and it is not arguable that on the facts of this case, the weight attached to family life was open to him.

Ground 3

13. I consider that there is, in reality, no inconsistency with the finding that the requirements of paragraph 276 ADE are not made out, yet finding that the appellant cannot proportionately be removed to Pakistan. As noted above, paragraph 276ADE sets out a particular view of what constitutes a private life; the learning on this matter from the relevant case law which the judge was bound to follow demonstrates that this goes wider. Further, as is noted above, this case was determined primarily on the basis of a finding of family life, and thus any error, if it existed, cannot properly be said to be material.

14. This ground in effect challenges the judge’s finding on proportionality, yet the points made about the respondent being able to re-establish herself in Pakistan were not put in the refusal letter, or in any other submissions to the judge. Had she wished to make these points, she could have done so, but, as noted above, she elected not to attend the hearing or make any written submissions. The appellate stage is not the place in which a party can seek to make points that should have been made below.

15. It is evident from the determination that, contrary to the submissions made, the judge did take into account the legitimate aim of maintaining immigration control [14, 15]. Further, as noted above, the appellant had not accepted that family life had been established, and had made no submissions in the alternative, were that conclusion not to be made. It is not properly arguable that, on the facts of this case, the judge erred in placing insufficient weight on the legitimate aim of maintaining immigration control.

16. In conclusion, the it is evident from the determination that the judge directed himself properly as to the law, and reached conclusions which, although they are not ones to which I would have come, were open to him on the evidence before him and for which he gave adequate reasons. The determination of the First-tier Tribunal therefore did not involve the making of an error of law and I uphold it.

Summary of conclusions

1. The determination of the First-tier Tribunal did not involve the making of an error of law and I uphold it.

Signed Date: 30 May 2013

Judge of the Upper Tribunal