Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28381/2013

THE IMMIGRATION ACTS

Heard at: Field House
Decision Promulgated
On: 21 November 2014
On: 24 November 2014

Before

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

Between

KEMISHA CHANTELLE SHENA PLUMMER
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant: Ms B Poynor, Counsel
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Respondent against the determination of First-tier Tribunal Judge Traynor in which he allowed the appeal of the Appellant, a citizen of Jamaica, against the Respondent's decision to refuse to leave to remain on the basis of long residence and human rights.

2. The application under appeal was made on 19 December 2012 and was refused by reference to paragraphs 276B and 276ADE of the Immigration Rules (HC395) on 24 June 2013. The Appellant exercised her right of appeal to the First-tier Tribunal. Her appeal was heard on 14 January 2014 and dismissed and her application for leave to appeal against this decision was granted and on 25 April 2014 the Upper Tribunal allowed her appeal against the First-tier Tribunal decision and remitted her appeal for rehearing before the First-tier Tribunal. This is the appeal which came before Judge Traynor on 31 July 2014 and was allowed. The Judge found that the Appellant had no ties with Jamaica being the country to which she would have to go if required to leave the United Kingdom.

3. The Respondent applied for permission to appeal to the Upper Tribunal. The application was granted by First-tier Tribunal Judge Brunnen on 7 October 2014 in the following terms

The grounds on which permission to appeal is sought submit that in finding that the Appellant had no ties to Jamaica the Judge misdirected himself as to the application of Ogundimu and neglected to consider the Appellant's continuing familiarity with that country and its customs and culture. These grounds are arguable.

4. At the hearing before me the Appellant was represented by Ms Poynor and Mr Tufan appeared for the Respondent.

SUBMISSIONS

5. On behalf the Respondent Mr Tufan relied on the grounds of appeal to the Upper Tribunal and added that the Judge had failed to consider section 117B Nationality Immigration and Asylum Act 2002. This provision came into force on 28 July 2014 and with the hearing taking place on 31 July 2014 the Judge was bound by statute to consider it. Mr Tufan submitted a copy of the decision in R (Bailey) v SSHD [2014] EWHC 1078 (Admin) and, referring to paragraphs 13 and 14 said that this established the criteria that the Judge should have taken into account when dealing with the issue of 'ties'. The Appellant speaks perfect English and this is the language of Jamaica. She spent her formative years in that country and went back there on holiday in 2010. This shows that she has ties to that country and that the Judge has not properly applied the ratio in Ogundimu [2013] UKUT 60 (IAC). His findings are irrational.

6. For the Appellant Ms Poynor said that the Judge had applied the correct test. The issue of ties and their nature was very clearly in the Judge's mind. He found the Appellant's evidence credible and he found that she had no ties to Jamaica. The authority put forward in the grounds of appeal, Balogun v UK 60286/09 [2012] ECHR was a deportation case concerning a person who had spent just 4 years in the United Kingdom and involved very different circumstances to those pertaining here. In Balogun the Court had not found the Appellant to be credible. Dealing with section 117B any error of law was not material. If the Judge had considered section 117B it would have made no difference to the decision. The Appellant speaks English, she is financially independent, her relationship with her partner was established when she was lawfully present in the United Kingdom and her immigration status was not precarious when her private life was established.

7. I reserved my decision but indicated that I did not require Ms Poynor to address me on remaking the decision were I to find an error of law.

Error of law

8. In my judgement the First-tier Tribunal made no material error of law. The primary issue before the First-tier Tribunal was whether the Appellant had ties to Jamaica within the meaning of paragraph 276ADE. This is clear from the decision of Upper Tribunal Judge King remitting the matter back for hearing to the First-tier Tribunal (paragraphs 21 and 22). First-tier Tribunal Judge Traynor notes this at paragraph 7 of his determination.

9. The First-tier Tribunal determination shows that Judge Traynor very carefully heard evidence directed to the issue of ties (paragraphs 19-40). In making his findings Judge Traynor very clearly had the issue of ties in mind and in this respect refers to Ogundimu no less than four times. The findings cover paragraphs 41 to 53 and it is abundantly clear from reading these paragraphs that the Judge went to great lengths to consider the Appellant's evidence and circumstances against the Ogundimu criteria. The authority put forward by Mr Tufan simply repeats these criteria. The Judge makes clear and reasoned findings. He finds the Appellant's evidence to be credible. He finds significantly that "there is no likelihood of the Appellant's mother welcoming her back".

10. There is nothing irrational in these findings. The substance of the Respondent's grounds of appeal to the Upper Tribunal is no more than a disagreement with these finding. In my judgment these are finding of fact that were properly open to the Judge and which are based on clear and detailed reasoning. There is no error of law.

11. Turning to section 117B there is no doubt that the Judge, hearing the case on 31 July 2014, should have taken this into account if he was considering whether the Respondent's decision made under the Immigration Acts breached the Appellant's right to respect for private and family life under Article 8 ECHR (section 117A(1)). In the first place having allowed the appeal under the terms of the Immigration Rules the Judge did not go on to consider Article 8 separately (see paragraph 54). Further and in any event, and as correctly submitted by Ms Poynor, all public interest questions specified in section 117B would have worked in the Appellant's favour so even if section 117B had been considered it could not have made a material difference to the Judge's decision.

12. There is no error of law material to the decision to allow the appeal and the Respondent's appeal is therefore dismissed.

Summary

13. The decision of the First-tier Tribunal did not involve the making of a material error of law.

Signed: Date: 21 November 2014

J F W Phillips
Deputy Judge of the Upper Tribunal