IA/29211/2013
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The decision
IAC-FH-NL-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29211/2013
THE IMMIGRATION ACTS
Heard at Field House
Decision and Reasons Promulgated
On 10 November 2014
On 23 December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE RIMINGTON
Between
ms ivy jane velasquez
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Miss K Reid of Counsel
For the Respondent: Ms I Isherwood, Home Office Presenting Officer
DECISION AND REASONS
The Appellant
1. The appellant is a citizen of the Philippines born on 12 August 1985 and she made an application on 27 June 2013 to vary her leave to remain and that application was refused on 6 August 2013 and a decision to remove her from the UK was made further to Section 47 of the Immigration, Asylum and Nationality Act 2006.
2. First-tier Tribunal Judge Burns considered the appeal on 30 July 2014 and refused that appeal on 19 August 2014.
3. An application for permission to appeal was made by the appellant on the basis that the judge had failed to identify the relevant standard of proof on the balance of probabilities and the judge had failed to make findings with respect to the emotional and physical dependency of the father on the appellant.
4. Further it was considered that the judge had not considered the principles under Razgar v SSHD [2004] UKHL 27 and had failed to weigh the competing factors in a balancing exercise in relation to proportionality. Both her parents were British citizens and their Article 8 rights should have been considered. There was significant evidence of the depression of the father and the judge made only passing reference to this. There was no assessment of the interference with the relationship with the father and the appellant in particular.
5. At the hearing before me, Ms Reid submitted that the appellant had come as a student and the judge had made no further analysis of the appellant's relationship with the father. The determination was short and the judge had simply looked at whether the appellant could return and had not considered the relevant factors. The father's wife and the appellant's mother was working and supporting the family and there were no findings made in respect of that. Article 8 should be considered. R(MM (Lebanon)) v SSHD [2014] EWCA Civ 985 had established that there was no separate test to be addressed.
6. Ms Isherwood submitted there was no material error of law. The appellant entered as a student and that was the basis of her claim. Since her father had had a stroke she had stated she was a full-time carer but the judge had noted that this was a family who had embarked upon migration to the UK. Her brother came in 2005. The judge had remarked that the appellant cared for the father but the family had shown no other avenues to be explored in respect of seeking assistance. The judge was aware that the father had a stroke but the submissions from Miss Reid were merely a disagreement with the judge's determination. The judge had referred to the medical evidence and it was not open to the representatives to state that the judge had not considered the evidence of the parent, the judge had done so.
7. In response Miss Reid maintained there was no appropriate proportionality assessment.
Conclusions
8. The application for permission to appeal sets out that 'it is for the appellant to prove her case on the balance of probabilities. By failing to direct himself to this the Immigration Judge has erred in respect of the findings he has made'. It is not incumbent upon a judge to specifically set this out in the determination and I am not persuaded that the determination discloses that the judge departed from the requisite burden and standard of proof.
9. Turning to the further challenges in the application, at paragraph 2 of the determination the judge refers specifically to MF (article 8 - New rules) Nigeria [2012] UKUT 000393 where the Upper Tribunal and recorded that if a claim under Article 8 was rejected under the Immigration Rules judges must still consider whether the decision was in compliance with a person's human rights under Section 6 of the Human Rights Act. The judge was therefore alert to the relevant law. At [17] of the determination the judge specifically referred to applying the traditional, pre-appendix FM Article 8 analysis in relation to proportionality. I do not accept that the decision applied any 'separate test' merely that the judge did consider, and rightly so, the immigration rules as part of the assessment.
10. It is suggested that the judge had failed to identify the public interest and a legitimate aim. The judge does not specifically refer to Section 117B of the Nationality and Immigration Act 2002 which sets out that the maintenance of effective immigration control is in the public interest and to which the judge should have had regard but this does not disadvantage the appellant. However, at [17] the judge did set out that the legitimate aim is for the economic wellbeing of the country and for the protection of the rights and freedoms of others and thus the judge does identify the need for the maintenance of immigration control as part of the legitimate aim. To that end the judge sets out the immigration history of the appellant and the family.
11. At paragraph 3 the judge recorded that the appellant entered the UK on 1 November 2011 as a student and made an application for leave to remain on 12 April 2014. The judge also recorded that previously her mother, Priscilla Velasquez, a British citizen, had applied for the appellant's entry to the UK as her dependant in 2008 but this was refused. I note at the date of this decision which was clearly referred to by the judge that the appellant made an application under paragraph 1(f) of 317 of the Immigration Rules namely that she was "over the age of 18 and living alone outside the UK in the most exceptional, compassionate circumstances and mainly dependent financially on relatives settled in the UK". At the time in fact the appellant was pregnant because she gave birth in November 2008. In fact her appeal was dismissed on 21 November 2008, the same month that her son was born. She married the father in 2013 but it was made clear at the hearing before me that this determination was in relation to the appellant alone.
12. Subsequently the judge recorded that the appellant came to the UK as a student. The fact is that she would have confirmed that she intended to enter the UK on a temporary basis and would leave at the end of her visa.
13. The judge made a full record of the facts of this case particularly with reference to the father and family and these are referred to below. The judge also recorded at paragraph 4 that unfortunately the appellant's father had had a stroke on 25 October 2013 and "she took care of him and since then claimed to be his full-time private carer. Her father wanted her and nobody else to take care of him".
14. The judge noted the extent to which the appellant claimed that the father was dependent on her and recorded, "she did nursing for him in the morning helping him to get out of bed, wash and prepare for breakfast" and "he had difficulty doing all the routine things ordinary people are doing because half of his body is paralysed and he was unsteady when alone" and that the father would be very anxious "if she were not beside him". The mother could not take care of him as much as the appellant because the mother was the one who provided for the whole family. The judge recorded that the father found the stoke devastating and that there was nobody else that could help him as the appellant was doing; however it was noted that both the appellant and the mother were nurses from the Philippines.
15. Against that the judge noted that the appellant and her mother both intended that the appellant should come to the UK in order to settle whilst the appellant's husband's family were still in the Philippines and he had his mother, father and one brother there and the mother went back to the Philippines every two years and also returned on vacation, last returning in 2012.
16. The judge also made a finding that the appellant did not reply when the judge enquired about social services and that there was no letter from social services regarding a care assessment.
17. The judge recorded the evidence that in fact the father had rented premises in Manchester although he had ceased working in 2013 when diagnosed with a stroke. The evidence of the mother was that when asked about any assessment, she replied "I want her [the appellant] to live here" and the question was asked of her directly in regards to the obtaining of the student visa and she confirmed that it was in fact for settlement.
18. Against the background of this record of the evidence, which indicates that the judge was fully aware of the circumstances of this case, and included the relationship between the appellant and her father and mother, the impact of any removal on the family, and the immigration history and attempts (or lack of them) to obtain assistance for the father and the fact that the mother was a nurse, the judge proceeded to make specific findings. It is clear that the judge did have in mind the questions posed in Razgar and although these are set out in a rather unorthodox fashion the issues are covered.
19. Indeed the judge at paragraph 17 stated that he was persuaded by and thus adopted the submissions of Ms Vatish and I set out these submissions below. Ms Vatish in turn referred to the Reasons for Refusal Letter. The refusal letter stated that the appellant claimed to live with her partner and child as a family unit and she did not have sole parental responsibility and nor was the parent or child with whom the child ordinarily lived a British citizen in the UK or settled. She thus failed to fulfil the Immigration Rules. Further, there were no insurmountable obstacles to family life with that partner continuing outside the UK or indeed with the child.
20. I note that there was no emphasis placed on the relationship with the child or the best interests of the child but this was not an issue raised in the application for permission to appeal.
21. The Reasons for Refusal Letter also found that having spent over 26 years in the Philippines and in the absence of any evidence to the contrary it was not accepted in the period of time that she had lost her ties to the home country and therefore she could not satisfy Rule 276ADE(6). Indeed the judge had recorded that the husband still had relatives in the Philippines, not least his mother and father.
22. Of significance is that the judge also recorded the submissions of Ms Vatish that there were discrepancies between the parties' evidence over the number of brothers where the appellant had said that there were five but the mother had said none. One had said that there was a visit by the mother every two years and the other every year. One had said the mother stayed in an apartment, the other said she lived with friends. It was submitted that the appellant had strong ties with the Philippines and there was no information regarding the sale of the house in the Philippines. The judge clearly accepted that the appellant came to enhance her qualifications which she had done and that the child was in the formative years. They had friends and family at home.
23. Ms Vatish submissions which the judge adopted maintained that it was clear that no independent assessment had been made for the father and that the reports indicated that he was "receiving physiotherapy until November but not since" and further "the medical report said he was now going back to work albeit in a slightly different category".
24.
25. The judge went through the medical reports and made a careful note of the father's stroke but also noted that the father had been given exercises and that "a phased return to work was anticipated". The judge also recorded that there was a suggestion that the father be "redeployed to one area of the laundry without the need to wheel the manual truck". Thus the judge proceeded on the basis that the father was to return to work although it was plain that he had been discharged from the hospital and was "under treatment by way of prescribed medications". The judge clearly proceeded on the basis that the father could return to work and also could seek assistance from the state. Not least the judge was well aware that the mother is in the UK and was a nurse. The mother and father had clearly developed their own independent life and the appellant had married and had her own child. The judge made a credibility finding against the appellant and the mother and did not accept the nature of the relationship claimed between the appellant and her father. I note that the father is still under medical care in Bury, albeit that he is supposed to be living in London.
26. The judge rejected the submissions from Miss Reid who submitted that the appellant "enjoyed what was described as a closer relationship that might normally be expected as a result of the father's stroke and his requiring full-time care. The appellant's mother was in full-time employment which precluded her from offering the care".
27. Indeed the judge stated specifically that she disagreed with those submissions and thus rejected that there was a relationship that might normally be expected to be closer than normal. The judge at 14 to 17 gave reasons for that. The judge accepted that the appellant had a high desire to be united with her parents but specifically stated that the appellant did not meet any of the criteria under the Immigration Rules. The judge identified that the appellant had placed much reliance on her father's condition, but the judge rejected reliance on this condition on the basis that the father could seek assistance from the British welfare state and this had not been explored by the parties and although there was a preference and desire to settle which informed the claimed relationship this was not likely to determine the immigration application.
28. It is clear therefore that the judge found that despite the relationship in respect of the father that the appellant as a married woman with a child could return to the Philippines. The judge proceeded on the basis that the husband and child were the dependants of the appellant in the appeal but in fact this was not the case. At the hearing Ms Isherwood submitted that the application for leave to remain by the husband and child had been rejected by the respondent as an invalid application through having been made on the wrong form.
29. On a reading of the determination as a whole it is clear that the appellant's parents are living in the UK and have settled in the UK and that the judge rejected the concept that the removal was disproportionate when considering the familial ties and in essence set out her findings on the basis that the appellant had emphasised her care for her father because of her desire to remain in the UK. The judge did make reference to the various and relevant factors in the proportionality exercise and I find that there is no error of law which is material.
30. The determination of Judge Burns shall therefore stand.
Signed Date 23rd December 2014
Deputy Upper Tribunal Judge Rimington
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29211/2013
THE IMMIGRATION ACTS
Heard at Field House
Decision and Reasons Promulgated
On 10 November 2014
On 23 December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE RIMINGTON
Between
ms ivy jane velasquez
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Miss K Reid of Counsel
For the Respondent: Ms I Isherwood, Home Office Presenting Officer
DECISION AND REASONS
The Appellant
1. The appellant is a citizen of the Philippines born on 12 August 1985 and she made an application on 27 June 2013 to vary her leave to remain and that application was refused on 6 August 2013 and a decision to remove her from the UK was made further to Section 47 of the Immigration, Asylum and Nationality Act 2006.
2. First-tier Tribunal Judge Burns considered the appeal on 30 July 2014 and refused that appeal on 19 August 2014.
3. An application for permission to appeal was made by the appellant on the basis that the judge had failed to identify the relevant standard of proof on the balance of probabilities and the judge had failed to make findings with respect to the emotional and physical dependency of the father on the appellant.
4. Further it was considered that the judge had not considered the principles under Razgar v SSHD [2004] UKHL 27 and had failed to weigh the competing factors in a balancing exercise in relation to proportionality. Both her parents were British citizens and their Article 8 rights should have been considered. There was significant evidence of the depression of the father and the judge made only passing reference to this. There was no assessment of the interference with the relationship with the father and the appellant in particular.
5. At the hearing before me, Ms Reid submitted that the appellant had come as a student and the judge had made no further analysis of the appellant's relationship with the father. The determination was short and the judge had simply looked at whether the appellant could return and had not considered the relevant factors. The father's wife and the appellant's mother was working and supporting the family and there were no findings made in respect of that. Article 8 should be considered. R(MM (Lebanon)) v SSHD [2014] EWCA Civ 985 had established that there was no separate test to be addressed.
6. Ms Isherwood submitted there was no material error of law. The appellant entered as a student and that was the basis of her claim. Since her father had had a stroke she had stated she was a full-time carer but the judge had noted that this was a family who had embarked upon migration to the UK. Her brother came in 2005. The judge had remarked that the appellant cared for the father but the family had shown no other avenues to be explored in respect of seeking assistance. The judge was aware that the father had a stroke but the submissions from Miss Reid were merely a disagreement with the judge's determination. The judge had referred to the medical evidence and it was not open to the representatives to state that the judge had not considered the evidence of the parent, the judge had done so.
7. In response Miss Reid maintained there was no appropriate proportionality assessment.
Conclusions
8. The application for permission to appeal sets out that 'it is for the appellant to prove her case on the balance of probabilities. By failing to direct himself to this the Immigration Judge has erred in respect of the findings he has made'. It is not incumbent upon a judge to specifically set this out in the determination and I am not persuaded that the determination discloses that the judge departed from the requisite burden and standard of proof.
9. Turning to the further challenges in the application, at paragraph 2 of the determination the judge refers specifically to MF (article 8 - New rules) Nigeria [2012] UKUT 000393 where the Upper Tribunal and recorded that if a claim under Article 8 was rejected under the Immigration Rules judges must still consider whether the decision was in compliance with a person's human rights under Section 6 of the Human Rights Act. The judge was therefore alert to the relevant law. At [17] of the determination the judge specifically referred to applying the traditional, pre-appendix FM Article 8 analysis in relation to proportionality. I do not accept that the decision applied any 'separate test' merely that the judge did consider, and rightly so, the immigration rules as part of the assessment.
10. It is suggested that the judge had failed to identify the public interest and a legitimate aim. The judge does not specifically refer to Section 117B of the Nationality and Immigration Act 2002 which sets out that the maintenance of effective immigration control is in the public interest and to which the judge should have had regard but this does not disadvantage the appellant. However, at [17] the judge did set out that the legitimate aim is for the economic wellbeing of the country and for the protection of the rights and freedoms of others and thus the judge does identify the need for the maintenance of immigration control as part of the legitimate aim. To that end the judge sets out the immigration history of the appellant and the family.
11. At paragraph 3 the judge recorded that the appellant entered the UK on 1 November 2011 as a student and made an application for leave to remain on 12 April 2014. The judge also recorded that previously her mother, Priscilla Velasquez, a British citizen, had applied for the appellant's entry to the UK as her dependant in 2008 but this was refused. I note at the date of this decision which was clearly referred to by the judge that the appellant made an application under paragraph 1(f) of 317 of the Immigration Rules namely that she was "over the age of 18 and living alone outside the UK in the most exceptional, compassionate circumstances and mainly dependent financially on relatives settled in the UK". At the time in fact the appellant was pregnant because she gave birth in November 2008. In fact her appeal was dismissed on 21 November 2008, the same month that her son was born. She married the father in 2013 but it was made clear at the hearing before me that this determination was in relation to the appellant alone.
12. Subsequently the judge recorded that the appellant came to the UK as a student. The fact is that she would have confirmed that she intended to enter the UK on a temporary basis and would leave at the end of her visa.
13. The judge made a full record of the facts of this case particularly with reference to the father and family and these are referred to below. The judge also recorded at paragraph 4 that unfortunately the appellant's father had had a stroke on 25 October 2013 and "she took care of him and since then claimed to be his full-time private carer. Her father wanted her and nobody else to take care of him".
14. The judge noted the extent to which the appellant claimed that the father was dependent on her and recorded, "she did nursing for him in the morning helping him to get out of bed, wash and prepare for breakfast" and "he had difficulty doing all the routine things ordinary people are doing because half of his body is paralysed and he was unsteady when alone" and that the father would be very anxious "if she were not beside him". The mother could not take care of him as much as the appellant because the mother was the one who provided for the whole family. The judge recorded that the father found the stoke devastating and that there was nobody else that could help him as the appellant was doing; however it was noted that both the appellant and the mother were nurses from the Philippines.
15. Against that the judge noted that the appellant and her mother both intended that the appellant should come to the UK in order to settle whilst the appellant's husband's family were still in the Philippines and he had his mother, father and one brother there and the mother went back to the Philippines every two years and also returned on vacation, last returning in 2012.
16. The judge also made a finding that the appellant did not reply when the judge enquired about social services and that there was no letter from social services regarding a care assessment.
17. The judge recorded the evidence that in fact the father had rented premises in Manchester although he had ceased working in 2013 when diagnosed with a stroke. The evidence of the mother was that when asked about any assessment, she replied "I want her [the appellant] to live here" and the question was asked of her directly in regards to the obtaining of the student visa and she confirmed that it was in fact for settlement.
18. Against the background of this record of the evidence, which indicates that the judge was fully aware of the circumstances of this case, and included the relationship between the appellant and her father and mother, the impact of any removal on the family, and the immigration history and attempts (or lack of them) to obtain assistance for the father and the fact that the mother was a nurse, the judge proceeded to make specific findings. It is clear that the judge did have in mind the questions posed in Razgar and although these are set out in a rather unorthodox fashion the issues are covered.
19. Indeed the judge at paragraph 17 stated that he was persuaded by and thus adopted the submissions of Ms Vatish and I set out these submissions below. Ms Vatish in turn referred to the Reasons for Refusal Letter. The refusal letter stated that the appellant claimed to live with her partner and child as a family unit and she did not have sole parental responsibility and nor was the parent or child with whom the child ordinarily lived a British citizen in the UK or settled. She thus failed to fulfil the Immigration Rules. Further, there were no insurmountable obstacles to family life with that partner continuing outside the UK or indeed with the child.
20. I note that there was no emphasis placed on the relationship with the child or the best interests of the child but this was not an issue raised in the application for permission to appeal.
21. The Reasons for Refusal Letter also found that having spent over 26 years in the Philippines and in the absence of any evidence to the contrary it was not accepted in the period of time that she had lost her ties to the home country and therefore she could not satisfy Rule 276ADE(6). Indeed the judge had recorded that the husband still had relatives in the Philippines, not least his mother and father.
22. Of significance is that the judge also recorded the submissions of Ms Vatish that there were discrepancies between the parties' evidence over the number of brothers where the appellant had said that there were five but the mother had said none. One had said that there was a visit by the mother every two years and the other every year. One had said the mother stayed in an apartment, the other said she lived with friends. It was submitted that the appellant had strong ties with the Philippines and there was no information regarding the sale of the house in the Philippines. The judge clearly accepted that the appellant came to enhance her qualifications which she had done and that the child was in the formative years. They had friends and family at home.
23. Ms Vatish submissions which the judge adopted maintained that it was clear that no independent assessment had been made for the father and that the reports indicated that he was "receiving physiotherapy until November but not since" and further "the medical report said he was now going back to work albeit in a slightly different category".
24.
25. The judge went through the medical reports and made a careful note of the father's stroke but also noted that the father had been given exercises and that "a phased return to work was anticipated". The judge also recorded that there was a suggestion that the father be "redeployed to one area of the laundry without the need to wheel the manual truck". Thus the judge proceeded on the basis that the father was to return to work although it was plain that he had been discharged from the hospital and was "under treatment by way of prescribed medications". The judge clearly proceeded on the basis that the father could return to work and also could seek assistance from the state. Not least the judge was well aware that the mother is in the UK and was a nurse. The mother and father had clearly developed their own independent life and the appellant had married and had her own child. The judge made a credibility finding against the appellant and the mother and did not accept the nature of the relationship claimed between the appellant and her father. I note that the father is still under medical care in Bury, albeit that he is supposed to be living in London.
26. The judge rejected the submissions from Miss Reid who submitted that the appellant "enjoyed what was described as a closer relationship that might normally be expected as a result of the father's stroke and his requiring full-time care. The appellant's mother was in full-time employment which precluded her from offering the care".
27. Indeed the judge stated specifically that she disagreed with those submissions and thus rejected that there was a relationship that might normally be expected to be closer than normal. The judge at 14 to 17 gave reasons for that. The judge accepted that the appellant had a high desire to be united with her parents but specifically stated that the appellant did not meet any of the criteria under the Immigration Rules. The judge identified that the appellant had placed much reliance on her father's condition, but the judge rejected reliance on this condition on the basis that the father could seek assistance from the British welfare state and this had not been explored by the parties and although there was a preference and desire to settle which informed the claimed relationship this was not likely to determine the immigration application.
28. It is clear therefore that the judge found that despite the relationship in respect of the father that the appellant as a married woman with a child could return to the Philippines. The judge proceeded on the basis that the husband and child were the dependants of the appellant in the appeal but in fact this was not the case. At the hearing Ms Isherwood submitted that the application for leave to remain by the husband and child had been rejected by the respondent as an invalid application through having been made on the wrong form.
29. On a reading of the determination as a whole it is clear that the appellant's parents are living in the UK and have settled in the UK and that the judge rejected the concept that the removal was disproportionate when considering the familial ties and in essence set out her findings on the basis that the appellant had emphasised her care for her father because of her desire to remain in the UK. The judge did make reference to the various and relevant factors in the proportionality exercise and I find that there is no error of law which is material.
30. The determination of Judge Burns shall therefore stand.
Signed Date 23rd December 2014
Deputy Upper Tribunal Judge Rimington