Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28876/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 30 September 2015
On 15 October 2015

Before

UPPER TRIBUNAL JUDGE SMITH

Between

S A S
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Pipe, Counsel
For the Respondent: Mr Jarvis, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
I continue the anonymity direction made by UTJ Kekic in her decision of 7 September 2015 in order to protect the identity of the Appellant's young child

DECISION AND REASONS

Background
1. The Appellant is a citizen of Guyana. She appeals against the respondent's decision dated 3 July 2013 refusing her leave to remain on Article 8 ECHR grounds and giving notice of her removal to Guyana.
2. The background to this case is set out at [2] to [3] of the Tribunal's decision promulgated on 7 September 2015 finding an error of law in the decision of First-Tier Tribunal Judge Thomas and I do not repeat it save as necessary below. Having set aside Judge Thomas' decision, the matter comes back before me in order to re-make the decision.
Evidence
3. Both parties agree that the starting point for my decision is the earlier decision of Upper Tribunal Judge Waumsley promulgated on 22 March 2012 in relation to an earlier decision to refuse the Appellant indefinite leave to remain. That decision set aside the earlier decision of First-Tier Tribunal Judge Cheales, finding there to be an error of law but preserving the findings of fact reached in that decision. Between the dates of First-Tier Tribunal Judge Cheales' decision and that of Upper Tribunal Judge Waumsley's decision, the Appellant's circumstances had changed as she had given birth to a son, J, on 5 September 2011. The Appellant had been told by J's father that he had indefinite leave to remain and so she believed that J was a British citizen. In fact, it transpired from information handed in by the Respondent at the hearing that J's father only had limited leave at the relevant time and so J had not acquired citizenship. That will become relevant when I turn to consider the evidence before me when considered against the evidence before Upper Tribunal Judge Waumsley.
4. Upper Tribunal Judge Waumsley heard evidence from the Appellant, her mother and stepfather which is set out at [10] to [18] of the decision. Upper Tribunal Judge Waumsley's findings on that evidence are set out at [28] to [29] of the decision. In short summary, the Judge did not find the Appellant or her mother to be reliable witnesses. The Judge went on to consider Article 8 ECHR in light of his findings but found that removal would not constitute a disproportionate interference with the Appellant's and J's human rights.
5. I am required to treat those findings as a starting point in accordance with the case of Devaseelan v Secretary of State for the Home Department [2003] Imm AR1. However, the Appellant's circumstances have changed since the date of Upper Tribunal Judge's Waumsley's decision. At the core of this case is the mental health of the Appellant and, most importantly, the impact that has had on J and his relationship with his mother and his grandmother and the impact it would have on that relationship if the Appellant and J were removed.
6. The Appellant suffers from post-natal depression. Although J was born some five months before the hearing before Upper-Tribunal Judge Waumsley, there is no evidence that the Appellant was suffering the effects of this at the relevant time. The Appellant's ability to cope by herself with J if returned to Guyana at that time turned only on the economic impact of being without a job and with limited family support. I set out below the evidence of the impact now based on the Appellant's mental health from which it is clear that the situation now is very different to that which pertained in March 2012. Indeed the reason why the Tribunal set aside First-Tier Tribunal Judge Thomas' decision was due to a failure to consider the report of the social worker, Ms Hira, which concerns the impact of removal of the Appellant on J.
7. The medical evidence before First-Tier Tribunal Judge Thomas as to the Appellant's mental health consists of a report from Dr Persaud dated 17 May 2012, a letter from Dr David Purdy dated 16 September 2013 and a report from Dr Silvert dated 4 August 2014.
8. Dr Persaud is a consultant psychiatrist. His report is based on one meeting with the Appellant, a review of her immigration documents and letters from her GP. He describes the Appellant as completely dependent on her mother. He also notes the Appellant's mother taking charge of J during the meeting. He reports that the Appellant's dependency on her mother has increased following J's birth. He considers that the Appellant is at a high risk of suicide if removed. Dr Persaud appears to base this on an incident where the Appellant tried to self harm with a knife. It is not clear if this incident is based on reporting from the Appellant and her mother or on something in her medical notes. It is mentioned in the Appellant's mother's statement in 2012 but was not mentioned before me and as such I give the reliance on that incident in the report limited weight. In any event, that incident occurred at least three years ago. Dr Persaud diagnoses clinical depression and records that the Appellant is on the maximum dose of anti-depressants. I note also that the report recommends specialist help from a consultant psychiatrist. It does not appear that the Appellant has taken any steps to seek out such continuing help.
9. Dr Silvert is also a consultant psychiatrist and his report is in similar vein to that of Dr Persaud although more recent. His diagnosis is of moderate to severe depressive illness. In relation to the risk of suicide which is mentioned also in this report based on the same incident as referred to by Dr Persaud, the Appellant says that she took an overdose of paracetamol in November 2014. Mr Jarvis submitted before me that this was not a serious attempt as the Appellant took only four tablets. The Appellant's mother accepted in evidence (in her capacity as a nurse) that this might not be fatal in most cases but could be and that she found her daughter on the floor having taken the tablets. The Appellant was also referred to the Crisis Team as a result, although she gave evidence that she was no longer under their care as she was not entitled to it due to her immigration status.
10. Dr Purdy's letter is based on review over a period from April 2012 to September 2013 albeit the letter is very short and gives little detail. In his letter, Dr Purdy refers to an improvement in the Appellant's mental health by September 2013. That though needs to be considered in context of Dr Silvert's report which post-dates Dr Purdy's letter. Dr Purdy refers to continuing low mood and occasional thoughts of self harm which he finds to be without intent. By September 2013, the Appellant was taking 20mg Citalopram and was continuing to take her medication. She continued to be reviewed albeit not regularly.
11. The Appellant supplied a copy of her medical records from October 2014 to July 2015. Those confirm the incident in November 2014 (as noted at [9] above) which is recorded by the Crisis Team as "intent self poison/exposure to nonopoid analgesic". The records indicate that whilst she took only four tablets, she "says would consider taking overdose" and note also her mother's concern that the Appellant was "smashing dishes at the weekend". I note also that at this time the Appellant's medication was at 40mg Citalopram. By the time of the hearing before me, the Appellant indicated that she is now taking 20mg Citalopram, 25 mg Quetiapine and Zopiclone. Although it appears therefore that her mental health has improved, she is still receiving medication for her condition and is not fully recovered.
12. As noted at [2] above, the Tribunal found an error of law in First-Tier Tribunal Judge Thomas' decision. That finding was by reason of the Judge's failure to make adequate findings on the report of Ms Hira, a social worker who has provided a report dated 30 July 2014 in relation to the relationships between J, the Appellant and the Appellant's mother and the impact on J of removal to Guyana having regard to the bond with his grandmother and the Appellant's mental health.
13. Ms Hira's report is based on one meeting on 29 July 2014 but is nonetheless a very thorough analysis of the situation based on a detailed account of the various relationships and considering the impact on J of being cared for by the Appellant whilst she continues to suffer with her mental health. I take into account that the report is based on what Ms Hira was told by the Appellant and her mother but the detail in her report is consistent with the evidence presented to me and with the evidence of the healthcare professionals as regards the Appellant's mental health. Ms Hira herself has experience as a mental health practitioner and is therefore able to comment also on this aspect.
14. Ms Hira deals in detail at [6] of her report with the relationship between J and his mother and grandparents. She notes from her assessment that "it became apparent to me that presently Mrs [O'S] [J's grandmother] was [J's] main carer". She sets out in detail what that care involves and that the Appellant is largely unable to look after J independently (see [7] of the report). Ms Hira goes on to say that, in her opinion, the Appellant "would not be able to sustain [J's] physical and emotional wellbeing" in the absence of her mother's support. Under "Clinical Observations" (in light of her experience as a mental health practitioner), Ms Hira opines that J would be "at high risk of neglect" if the Appellant were his sole carer.
15. She opines that it is in J's best interests for him to remain in the UK with both his mother and his grandparents. She concludes in the following terms:-
"I am of the view that permanent removal of [ the Appellant] from the UK is likely to cause significant detriment to all the family members and also on the integrity of the family unit as a whole with lasting and damaging effects particularly on this child. In particular [J] will be unable to continue with the emotional ties he has established with his grandparents and not be able to realise his full potential if removed from the care they offer him."
16. I also had the benefit of further written and oral evidence from the Appellant and her mother, J's grandmother. The Appellant's statement provides an update of her mental health condition. In November 2014, she suffered from severe depression and was referred to the Crisis Team (as noted above). Her medication was reviewed and increased. She records that her medication makes her drowsy. This was confirmed in her oral evidence and I was able to observe her demeanour when giving evidence which was consistent with that self-diagnosis. The Appellant's witness statement describes her relationship with J's father and confirms that she did not deliberately enter into that relationship or conceive J as a way of regularising her stay in the UK. She says that in fact she never asked J's father what his status was in the UK.
17. The Appellant also mentions the background to her immigration status. She came to the UK with her mother as a dependent. Her mother had leave as a work permit holder. Her mother has been a British citizen since 2010, having obtained indefinite leave to remain in May 2008. The Appellant blames her previous representatives for giving her the wrong information which led to her failure to apply for indefinite leave to remain with her mother in 2008 and a later failure to apply for indefinite leave to remain on the basis of completion of the requisite period of leave in the UK. She had been advised that she needed to complete five years in the UK with leave whereas she says that the position then was that as the dependent of a work permit holder she was not required to complete five years residence and should have been eligible for indefinite leave at the same time as her mother.
18. The Appellant's circumstances in Guyana have also changed. This is one of the factors in the case which caused Upper Tribunal Judge Waumsley to find that the Appellant's mother in particular was dissembling as she claimed that there were no family members in Guyana to whom the Appellant could turn whereas in fact the Appellant's sister, grandmother, uncle and his family still lived there. However, the Appellant's sister now has a visa to move to the US to join her husband. The Appellant accepts that her grandmother and uncle and his family still live in Guyana but gave evidence that they would not be able to provide for her and J because they are old and living in difficult circumstances. The Appellant's uncle's wife is suffering from MS. In oral examination, the Appellant accepted that she had not made any enquiries about what support might be available from the authorities or any NGOs in Guyana. She also accepted that her mother might be able to send some money for her and J to Guyana but it would be difficult for her parents to do so.
19. The Appellant's mother gave evidence before me on this aspect. She explained that she had not mentioned the Appellants' relatives when she gave evidence in March 2012 because she did not consider that they could look after the Appellant and J and did not therefore consider them to be relevant. I do not accept that explanation and it is clear from Upper Tribunal Judge Waumsley's decision that he was entitled to find her not credible on this account. However, she gave oral evidence before me and, although I consider that she may have been exaggerating the position before Upper Tribunal Judge Waumsley, I find her evidence now to be credible. She presented as truthful and I did not consider that she was embellishing her evidence.
20. The position in Guyana is that the Appellant's grandmother is bedridden and needs daily care. She lives with the Appellant's uncle and his family in a small one bedroom house with limited facilities and a low income. The Appellant's mother confirmed that the Appellant's uncle would not be able to provide accommodation or financial support to the Appellant and J. The Appellant's aunt also still lives in Guyana but she is not of fixed abode and so could not provide accommodation or support. The Appellant's cousin also still lives in Guyana but the Appellant's mother has no contact with him and has been unable to contact him by phone. The Appellant's mother is not in contact with the Appellant's father due to an acrimonious separation and whilst the Appellant's mother believes that her ex-husband's brother and one sister remain in Guyana, one of the sisters and her family are in the UK.
21. The Appellant's mother said that she would send money to Guyana if the Appellant and J were removed but would be unable to send much due to her and her husband's circumstances. The Appellant's mother confirmed that she does support the Appellant and J now, including paying for toys and clothes. However, she pointed out that this was not as much of a financial burden as would be the position if the Appellant and J were in Guyana. The Appellant and J live with her and her husband so that there are no additional accommodation costs and the increase in the bill for the additional food to cater for them was negligible. If the Appellant and J were in Guyana more financial support would be needed to fund accommodation and food. The Appellant's mother works as a registered staff nurse in the community and her husband works for the local council. They have no savings.
22. In terms of maintenance of contact with the Appellant and J if they were removed, the Appellant's mother said that she and her husband would be unable to pay regular visits to Guyana due to the costs of flights. The maintenance of the relationship with, in particular, J would be difficult by, for example, Skype. Communication via a computer is not the same as day to day care, particularly for a young child. She and her husband would not accompany the Appellant and J to Guyana if they were removed as they are fully integrated in the UK, have a house and employment in the UK and are now British citizens.
23. The Appellant's mother confirmed that she assumes about 80% of the care of J because of her daughter's illness. She does the washing and cooking for him, reads him bedtime stories and takes him to school most days although the Appellant sometimes collects him. She said that J tends to call her "Mum" rather than referring to her as his grandmother although Ms Hira notes in her report (in July 2014) that J had started to call the Appellant "mummy" at that time. The Appellant confirmed her mother's evidence and indicated in her statement in August 2014 that J regards her as a sister and her parents as his parents due to the amount that they were doing and still now do for him. She said her parents look after J more than she does and that J has a very strong bond with his grandmother because his grandmother has looked after him since birth.
Submissions
24. Mr Piper made clear that the Appellant's case is limited to a claim outside the Rules based on compelling circumstances. He did not suggest that the Appellant could meet the Rules and he very fairly accepted that although the Appellant would suffer hardship if returned to Guyana the circumstances do not reach the very high threshold to be termed "very significant obstacles". He did though submit that there are very compelling circumstances in this case based on a combination of the Appellant's mental health, the strong bond between J and his grandmother in particular, the impact on J of removal to Guyana where there is some doubt that the Appellant would be able to cope with looking after him and the evidence of the Appellant's dependency on her mother. He noted that there is no provision under the Rules for leave to remain as an adult dependent relative in the circumstances of the Appellant nor is there a parent route for J to remain with his grandparents. As such, those are all issues which need to be considered outside the Rules.
25. Mr Piper reminded me that the Appellant was originally in the UK with leave as the dependent of her mother. She was here lawfully albeit in the latter stages on statutorily extended leave under section 3C Immigration Act 1971 until Upper Tribunal Judge Waumsley's decision in 2012. He submitted that the dependency between the Appellant, J and the Appellant's parents shows a sufficient level of dependency to amount to family life. Whether considered on that basis or on the basis of private life alone, he submitted that this is a strong case on its own facts which is not outweighed by the public interest.
26. Mr Piper relied also on the best interests of J and what was said by Ms Hira; that it is in J's best interests to remain in the UK with both his mother and his grandparents. He noted that J's best interests are a primary though not the primary consideration. Ms Hira's report and the evidence of the Appellant and her mother demonstrates a significant bond between J and his grandmother. J has also only known life in the UK and although he is still at a young age, Ms Hira's report shows that there would be a significant impact on him of removal particularly where the Appellant is likely to be unable to offer him much support in reintegrating. Mr Piper submitted that it is not reasonable to expect the Appellant's parents to relocate to Guyana (notwithstanding both were originally from that country).
27. In relation to the medical evidence, Mr Piper submitted that even if limited in content, I should still rely on that evidence as showing the same trajectory and that the Appellant continues to suffer with her mental health. That coupled with Ms Hira's view of the impact of the Appellant's mental health on J's wellbeing and development is sufficient to justify the Appellant and J remaining in the UK.
28. In relation to section 117B, although the Appellant is not working at present, she has done so in the past and may be able to do so again if her mental health improves. Her parents are supporting her and J in the meanwhile. Mr Piper accepted that in light of AM (S117B) Malawi [2015] UKUT 0260 (IAC), he could derive no support from the Appellant's ability to speak English. He accepted that the Appellant's status in the UK was precarious even when here lawfully so that private life had to be given little weight. He pointed out, however, that family life was formed at least at the outset (and after J's birth) when the Appellant was in the UK lawfully and is deserving of weight.
29. Mr Piper submitted that in light of the above circumstances, taken together, it would be disproportionate to remove the Appellant particularly when considering the impact on the Appellant's wellbeing, on J and on the Appellant's mother of removing J from her.
30. Mr Jarvis submitted that I should be slow to accept the evidence of the Appellant and her mother particularly in light of the findings of Upper Tribunal Judge Waumsley that they are prone to dissemble. He submitted that, based on Upper Tribunal Judge Waumsley's decision, I should be particularly slow to accept their evidence when dealing with the extent of the relationship between J and the Appellant's mother and the circumstances in Guyana. He reminded me that there is no direct evidence updating me as to the circumstances in Guyana and I had therefore to rely on what the Appellant and her mother said in that regard. He noted the report of Ms Hira but this is based on one meeting and what she was told by the Appellant and her mother.
31. Mr Jarvis submitted that the medical evidence shows a general overall improvement of the Appellant's mental health. Although the records show an increase in the Appellant's medication in recent months, Mr Jarvis submitted that the evidence of Dr Purdey who regularly reviewed the Appellant, coupled with the medical records, show that her condition is managed by medication. The Appellant's medical condition does not meet the threshold to engage Article 3 ECHR and in those circumstances is unlikely to outweigh the public interest in order to breach Article 8 ECHR.
32. Mr Jarvis noted that the Appellant does not seek to rely on the Rules and admitted that she could not meet those. Whilst there may be circumstances worthy of consideration outside the Rules in this case, those could not be described as very compelling. In any event, the issue then is one of proportionality. When considering section 117B, the fact that the Appellant speaks English is not relevant. The Appellant and J are not financially independent. He accepted that the Appellant could not work at present due to her status and might be able to do so, as she had in the past, if given leave. He also accepted that the evidence is that she is presently supported by her parents. The Appellant is presently an overstayer and her status in the UK has firstly been precarious and latterly unlawful. As such, private life and family life should be given little weight. Although he accepted that J could not be blamed for his status, his life here too had been formed at a time when his status was precarious and unlawful.
33. Mr Jarvis accepted that J's best interests were served by him remaining with the Appellant and possibly also his grandmother (depending on my findings). Ms Hira's report was however based on one point in time and there is an absence of evidence from those in regular contact with the family. He accepted there would be disruption of the relationship between J and his grandmother which would impact on both if the Appellant were to be removed. He submitted though that the public interest outweigh the family and private lives of the family even taking into consideration the impact on the Appellant's parents. He noted also that the Appellant's parents could accompany her and J to Guyana given their background to assist the Appellant and it is reasonable for them to do so.
Decision and reasons
34. Having reviewed the evidence including the evidence before me, I accept that the Appellant and J in particular have a very close relationship with the Appellant's mother (and to a lesser extent her father). I find that the relationship, based on the evidence I heard and Ms Hira's report and medical evidence, is sufficiently strong to amount to family life, particularly in light of the recent case of Singh and Singh v Secretary of State for the Home Department [2015] EWCA Civ 630. It is clear from Ms Hira's report and the evidence given by the Appellant's mother that J and his grandmother have a very close bond, to the extent that he regards her as his mother and regularly calls her "Mum". Although it appears from Ms Hira's report that the Appellant does care for J when she is able, it is clear that she is struggling to do so without support and such care is intermittent depending on the highs and lows of her mental health condition. I also take into account Ms Hira's conclusions about the likely impact of removal on J in terms of the support which the Appellant would be able to give and therefore the potential impact on his development and integration in Guyana given that he would be reliant on his mother's support in that regard. I find that there would be considerable disruption to the bond between J and his grandmother which he is likely to find very distressing, even at his young age, where she has provided the main support to him since birth. As the Appellant's mother said in evidence, weekly contact via a computer screen is not the same as the every day care she provides to J presently.
35. In relation to the Appellant's mental health condition, I do not accept the totality of the medical evidence, based as it is on matters which were given little prominence in the evidence before me and as to which there is no independent support. This is particularly so in relation to the risk of and previous attempts at suicide. As the person with exposure over a longer period of time to the Appellant's mental health condition, I accept the evidence of Dr Purdy that whilst the Appellant may have suicidal ideas, this is without intent. Although there is evidence that she took a number of paracetamol tablets in November 2014, that is not recorded in her medical notes as an attempted overdose but rather as an attempt to self-poison (although I do not seek to downplay this incident on that basis). However, although the medical evidence does suggest that the Appellant's mental health is improving after a downturn in November 2014 it remains the case that she is on medication which is impacting on her ability to care for herself and her child. As I have noted above, the way in which she gave evidence indicated that the Appellant was not exaggerating the impact of her medication on her energy levels or the impact of that on her ability to care for a young child. I accept the Appellant's mother's evidence also about the extent to which the Appellant is currently able to care for J in light of her mental health and medicated condition. That is reinforced by Ms Hira's report. I note that the Appellant's mother indicated that she takes care of J about 80% of the time.
36. In relation to family in Guyana, the Appellant's sister might have provided sufficient support to the Appellant and J (as she did when the Appellant was younger and her mother left Guyana for the UK). However, although her sister has not yet left Guyana for the US, she now has a visa to do so and there is evidence that she will do so shortly. I accept the evidence of the Appellant and her mother that the other relatives in the UK are either elderly and/or have insufficient resources to accommodate and support the Appellant and J or cannot be traced. I find therefore that the Appellant would not have relatives in Guyana who could support her except perhaps to a limited extent emotionally. I do not consider it reasonable to expect the Appellant's parents to leave the UK with her in order to support the Appellant and J. They have made a life for themselves in the UK. They have property here. Both are employed and providing a meaningful and valuable contribution to UK society. They are British citizens. They cannot be expected to uproot to return to a country where they have nothing in order to support the Appellant and their grandson.
37. The Appellant accepts that she and J do not meet the private or family life requirements of the Rules. The appeal proceeded solely on arguments relating to the application of Article 8 of the European Convention outside the Rules. I accept Mr Piper's submission that the combination in this case of the Appellant's mental health, the Appellant's and J's relationship with the Appellant's mother in particular and the impact on J of removal to Guyana is sufficient to amount to compelling circumstances which fall to be considered outside the Rules on the facts of this case. Indeed, I did not understand Mr Jarvis to argue that I should not consider the case outside the Rules.
Best interests of the child
38. In assessing the best interests of the child I have taken into account the statutory guidance "UKBA Every Child Matters: Change for Children" (November 2009), which gives further detail about the duties owed to children under section 55. In that guidance the UKBA acknowledges the importance of a number of international instruments relating to human rights including the UN Convention on the Rights of the Child (UNCRC). The guidance goes on to confirm: "The UK Border Agency must fulfil the requirements of these instruments in relation to children whilst exercising its functions as expressed in UK domestic legislation and policies." I take into account the fact that the UNCRC sets out rights including a child's right to survival and development, the right to know and be cared for by his or her parents, the right not to be separated from parents and the enjoyment of the highest attainable standards of living, health and education without discrimination. The UNCRC also recognises the common responsibility of both parents for the upbringing and development of a child.
39. I have also taken into account the decisions in ZH (Tanzania) v SSHD [2011] UKSC 4, Zoumbas v SSHD [2013] UKSC 74 and EV (Philippines) and others v SSHD [2014] EWCA Civ 874. The best interests of the child are a primary consideration in this case but not the primary consideration and they may be outweighed by the cumulative effect of other matters that weigh in the public interest.
40. The Appellant's son was born in the UK and knows no other life. He is liable to removal with the Appellant. He is only four years old and is not at an age where he has established any significant ties to the UK outside his family (although he does now attend nursery school). His life is likely to revolve around close family members. Unusually in this case, his main care is provided by his grandmother who will not be removed as she is a British citizen. She has provided the majority of his care since birth due to his mother's mental health condition and as such it is the impact of severance of that relationship which is at the forefront of my consideration of the impact of removal on him. His grandmother is in the position of one of his parents and the evidence points to her being the main parent in J's eyes. The evidence also casts serious doubt on the ability of the Appellant, J's mother, to cope with him and support him if they are removed to Guyana without the support of her parents. As a young child moving to a strange country, J would be completely dependent on his mother for support in integrating in Guyana, a support which the evidence suggests she would be unable to give. The Appellant herself left Guyana in 2005 and has not lived there either for 10 years and would have very limited support from family on return.
41. For these reasons I conclude that it is in the best interests of J to remain with his mother and grandparents in the UK. In the UK J and his mother can continue to benefit from the support of the Appellant's mother who ensures J's care and support for most of the time and in particular when the Appellant is unable to do so due to her mental health condition. As I note above, however, I accept that J's best interests are not a trump card. He is not a British citizen. His best interests fall to be balanced against the public interest.
Article 8 (private and family life)
42. Article 8 of the European Convention on Human Rights protects the right to private and family life. However, it is not an absolute right. The state is able to lawfully interfere with an appellant's private and family life as long as it is pursuing a legitimate aim and it is necessary and proportionate in all the circumstances of the case. The starting point is the basic principle that a state has the right to control the entry and residence of people within its borders. There is a strong public interest in maintaining an effective system of immigration control. This is done through the Rules, which set out the requirements for leave to enter or remain in the UK. The Rules are now the main guide to what decisions are likely to be considered reasonable and proportionate. It is still possible for cases that fall outside those requirements to engage the operation of Article 8 but only if there are compelling circumstances that are not sufficiently recognised under the Rules: see Huang v SSHD [2007] UKHL 11, Patel & Others v SSHD [2013] UKSC 72, MM & Others v SSHD [2014] EWCA Civ 985 and SS (Congo) v SSHD [2015] EWCA Civ 387.
43. As I have found at [34] above, the dependency of the Appellant and J on the Appellant's mother is sufficiently strong as to amount to family life. The Appellant has been in the UK for ten years, for much of the time with leave to remain (until 2012) and has worked in the UK in the past. She was eighteen years old when she arrived here and has therefore spent her early adulthood here. The evidence shows that currently she does not have much contact with others outside the home which she shares with J and her parents due to her mental health condition but the period of time spent in the UK is sufficient to show that removal is likely to interfere also with her private life. J was born in the UK. He is at a very young age and most of his relationships will therefore be within the home but he does now attend nursery school. Ms Hira's report provides some information about the (limited) friendships which he has formed with other children. There will therefore be a limited interference with his private life by removal but a more profound interference with his family life with his grandmother. In these circumstances I accept that removal is likely to interfere with the Appellant's and J's right to both a private and family life in a sufficiently grave way as to engage the operation of Article 8 of the European Convention (see stages 1 and 2 of the five stage approach in Razgar v SSHD [2004] INLR 349)
44. I take into account that the Appellant and J do not meet the requirements of the Rules and the normal course of action would be to require them to leave the UK. However, I have already found that there are compelling circumstances in this case which require Article 8 to be considered outside the Rules. While the maintenance of effective immigration control is an important factor the balancing exercise under Article 8 is a complicated one and must take into account a number of different factors balancing the public interest against the specific circumstances of each individual. In this case the Rules relating to private and family life set out requirements in very specific categories but do not make adequate provision for a holistic assessment of the family life situation in this case nor do they cater for the impact of the Appellant's mental health as that relates to the impact on her and on J of their removal.
45. In assessing what weight to place on the public interest, I am required to take into account section 117B (general) of the Nationality, Immigration and Asylum Act 2002. The maintenance of immigration control is in the public interest and must be given great weight. The appellant speaks English but that fact does not weigh in the balance in her favour. She is not self sufficient but is supported by her parents. I do not though place that factor in the balance in her favour as, although she may be able to work once given leave to be in the UK (as she has lawfully done in the past) her mental health condition may preclude that at least in the short term and that condition may also mean that she relies on medical treatment for that condition at the expense of public funds, also in the short term. Although the Appellant has formed her private life in the UK at a time when she only had limited leave and therefore with precarious status, I do take into account that she was here lawfully for much of the time and, had she been properly advised, may well have been entitled to apply for indefinite leave when her mother did so. Since the position in that regard is not sufficiently clear, however, I give little weight to her private life.
46. In relation to the family life which the Appellant and J have formed with the Appellant's parents, that has been formed at a time when the Appellant and later J were here lawfully. Family life (as Singh makes clear) is not something which is formed and then ends. It is something which is established and then continues. In the case of J, he is still a minor and I have found at [14] above, that he enjoys family life with his grandmother. Indeed, I have found that this is the main family bond in his eyes because of the Appellant's inability to care for him from birth. In this case, the Appellant was here lawfully from 2005 until 2012 when her 3C leave ended. During that period, J was born. Although section 117B does not cater for the particular circumstances of this case, I am not bound by that to give little weight to the family life which the Appellant and J have formed with the Appellant's parents. I do therefore give weight to the family life which I have described above when weighing that against the public interest.
47. This case turns on its own particular facts. There are a number of compelling aspects to this case which individually might not lead to a finding that removal is disproportionate. I would not for example have taken the view that removal of the Appellant if she did not have a child would be disproportionate based on her mental health. I would not have found that removal of the Appellant and J together would be disproportionate if J's main bond was with his mother and she was able to care for him without support. However, I need to consider these factors in the round and cumulatively when weighing the extent of the interference with the Appellant's and J's family and private life. These factors in this case are all largely interrelated. J has a significant bond with his grandmother which will be severed by removal. That bond, reflected in the level of care which J's grandmother provides now on a daily basis, is not something which can be replicated by other forms of communication between Guyana and the UK. The Appellant has a significant dependency on her mother reflected by findings in the medical reports that she has a dependent personality which manifests itself in that relationship. Due to the Appellant's mental health condition, she will struggle to care for and support J if they are removed without the assistance of her mother. It is not reasonable to expect her mother and stepfather to accompany them back to Guyana. The Appellant and J would have limited family support in Guyana and the Appellant's parents would not be able to provide much by way of financial support to the Appellant and J from the UK.
48. The maintenance of immigration control must be given significant weight. As noted above, the best interests of the child are a primary consideration albeit not an overriding consideration. Nevertheless there would need to be a number of countervailing factors to outweigh the child's best interests. I have found that it is in the best interests of J to remain in the UK where he would benefit from support and care from both his mother and his grandparents. Although the Appellant has been in the UK without leave since 2012, she was in the UK for nearly seven years with leave and may have been entitled to further leave or indefinite leave if she had applied at the relevant time (although as I have indicated I do not give this factor much weight). The Appellant has no criminal convictions that might add more weight to the public interest in removal.
49. The task of weighing all the circumstances of a particular case is always difficult and complex. Having carefully weighed up the facts of this case I find that there is very little evidence before me to show that there is a pressing social need to remove this Appellant and her young son. In this case the basic guidance given by the House of Lords in Huang v SSHD [2007] UKHL 11 is of assistance:
"? the main importance of the case law is in illuminating the core value which Article 8 exists to protect. This is not, perhaps, hard to recognise. Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant."
50. Taking into account in particular the impact of removal on J and bearing in mind his relationship with his grandparents, the Appellant's mental health condition and her consequent inability to care for and support J in Guyana, I have concluded that the removal of the Appellant (and J) would prejudice their right to private and family life in a sufficiently serious way to amount to a breach of her fundamental rights under Article 8. For these reasons I find that removal in consequence of the decision would amount to a disproportionate interference with the appellant's rights under Article 8 of the European Convention.
DECISION
I allow the appeal on Article 8 grounds outside the Rules.

Signed Date 15 October 2015

Upper Tribunal Judge Smith