Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28497/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27th March 2017
On 7th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

DORIS NOEMI BARRERA TORIRICO
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Representation:

For the Appellant: Mr A Salam, Salam & Co Solicitors
For the Respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant appeals against a decision of First-tier Tribunal Judge S Taylor dismissing her appeal against the Respondent’s decision to refuse leave to remain based on her human rights and thereby challenging removal directions simultaneously made.
2. The Appellant appealed against that decision and was granted permission to appeal by First-tier Tribunal Judge Hollingworth.
3. The grant of permission states as follows in relevant part:
It is arguable that the criteria in Razgar should have been applied and a proportionality assessment made. At the opening of paragraph 13 the judge has clearly referred to the Appellant applying for leave on the basis of her private life. At paragraph 14 the judge found the Appellant did not meet the requirements of Immigration Rules with regard to private life.
The judge then proceeded to deal with the request that the Appellant be granted discretionary leave. …
4. A Rule 24 reply was provided by the Respondent which was read by all parties before the hearing commenced.
Error of Law
5. At the close of submissions I indicated that I had found an error of law but that my reasons for so finding would follow. I find that there was an error of law in the decision such that it should be set aside. My reasons for so finding are as follows.
6. The judge notes at paragraph 7 of her determination as follows in respect of the basis of the appeal: “The only basis of her appeal was private life outside of the Rules on the grounds that she required further medical treatment in the UK.” Given that clarity of the basis of the appeal it is unclear why the First-tier Tribunal only considered paragraph 276ADE of the Immigration Rules at paragraph 14 of the determination and then in paragraphs 15 to 17 goes onto discuss discretionary leave noting that the Tribunal cannot grant discretionary leave as it is beyond its jurisdiction. Whilst the Tribunal is right that discretionary leave is beyond its jurisdiction, discretionary leave and exceptional circumstances are two different criteria altogether and one cannot form a substitute for the other given that they are distinct. The exceptional circumstances conundrum is the safety net given to applications which fall outside of the Secretary of State’s Immigration Rules that seek to codify consideration of a person’s private life and family life via the Secretary of State’s statements of practice for caseworkers on behalf of the Executive.
7. Given the Supreme Court’s recent decisions on the need for a fair balance and a proportionality approach to such appeals, in the matters of Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 and the more recent decision of the Supreme Court in R, (on the application of Agyarko and Ikuga) v Secretary of State for the Home Department [2017] UKSC 11, it is now beyond question that such matters should find consideration outside of the Rules via the exceptional circumstances umbrella, but, moreover that the result and outcome of any consideration of a person’s human rights must be one that is gauged by exceptional circumstances, that phrase being analogous with the Razgar approach of applying a fair balance and proportionality approach to every Article 8 assessment.
8. As observed by Judge Hollingworth there is no assessment of the proportionality of the Respondent’s decision which is a material error of law given that the basis of the appeal was that the Appellant should be granted leave on the grounds that she required further medical treatment in the UK alongside her private life claim. Such mixed claims are not catered for by paragraph 276ADE which seeks to codify the basis upon which the Secretary of State will consider a person’s private life in the UK.
9. For my part I also note that it is troubling that consideration was not given to the risk that the Appellant claimed she would face if she were to travel long distance to Chile due to the risk of thrombosis, particularly given her serious health concerns. Albeit she has returned to Chile in the past several years before re-entering the UK, the failure to consider the risk to the Appellant’s health from removal via flight is a matter which ought not to have gone unexplored given the Appellant has been, as the First-tier Tribunal puts it, “the subject of a life changing and horrific road traffic accident” and given that the Tribunal indicated clearly that it would “wish to be positively disposed to assisting the Appellant” given that the Tribunal was unaware of the consequences that would emanate from the Appellant’s removal and in the absence of evidence upon the same any consequent decision made would be uninformed and thus erroneous. For my part I share the First-tier Tribunal’s view of this Appellant’s horrific and traumatic past and find that there must be an assessment of the interference to her Article 8 ties and her health claim pursuant to the approach taken in recent years highlighted by the Court of Appeal’s decision in GS (India), & Ors v The Secretary of State for the Home Department [2015] EWCA Civ 40 at [85-87] alongside the ‘no obligation to treat’ principle. Thus, for the purposes of re-making it would clearly be sensible, economical and proper for the Appellant’s Article 8 and health claims to be considered under the fair balance and proportionality criteria pursuant to Razgar.
10. In light of the above findings, I set aside the decision and findings of the First-tier Tribunal entirely.
Notice of Decision

The appeal to the Upper Tribunal is allowed. The previous determination involved the making of an error on a point of law and is set aside.

The appeal is to be remitted to the First-tier Tribunal to be considered by a differently constituted bench.

Signed Date 06/04/17

Deputy Upper Tribunal Judge Saini