Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA292892014
IA292912014

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 14 June 2016
On : 15 June 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

ripley roy campbell
greta pamella edwards campbell
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr T Hodson of Elder Rahimi Solicitors
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellants are husband and wife and are citizens of Jamaica, born on 4 February 1938 and 17 July 1947 respectively. They have been given permission to appeal against the decision of First-tier Tribunal Judge Walters, dismissing their appeals against the respondent's decision to refuse their applications for leave to remain in the UK on the basis of family and private life.

2. The appellants entered the United Kingdom as visitors in February 2013, the second appellant in particular having made regular previous visits to the UK as a visitor. They were granted an extension of their leave until 25 June 2014. On 16 May 2014 they applied for further leave to remain on family and private life grounds. Their applications were refused on 14 July 2014 on the basis that they could not meet the criteria in Appendix FM and paragraph 276ADE(1) in relation to family and private life. The respondent considered further that there were no exceptional circumstances justifying a grant of leave outside the immigration rules.

3. The appellants appealed against that decision. Their appeals were heard on 11 September 2015 by First-tier Tribunal Judge Walters and were dismissed in a determination promulgated on 16 October 2015.

4. Permission to appeal to the Upper Tribunal was granted on 29 April 2016, on the basis of inadequate reasoning in the judge's decision.

5. It is, at this point, necessary to provide a summary of the appellants' circumstances leading to their application for leave to remain. The appellants had a daughter, Joan, who married her British citizen husband, Malcolm Drameh, in December 1992, in Jamaica, and returned with him to live in the UK, eventually becoming a British citizen herself. Joan and Malcolm had two children, Aminitta, born in Jamaica on 8 May 1993, and Mahdi, born in London on 18 September 1998. The second appellant visited her daughter and her family regularly and the first appellant visited occasionally. In August 2008 Joan was diagnosed with breast cancer and underwent surgery and it was the second appellant who helped out with the children whilst she was convalescing. She returned to the UK frequently to help with the children, spending a few months here each time before returning to Jamaica. In 2011 Joan was diagnosed again with cancer, but this time it had spread. The second appellant returned again to the UK and stayed as long as she was able to, in 2011 and 2012. Joan's cancer was diagnosed as terminal. Both appellants came to the UK on 2 February 2013, to care for Joan and to help with Mahdi. They applied to extend their visas to care for Joan and were granted extensions until 25 June 2014. Joan, in the meantime, passed away on 13 June 2013. Her husband and the children went away, to stay with family in Gambia for a break, returning to the UK on 3 January 2014. The appellants, having also left the UK, returned on 22 March 2014. They did not feel that it was possible to leave and abandon Mahdi and therefore applied on 16 May 2014 for further leave to remain on the basis of their family life. They remain living with their son-in-law and grandson Mahdi, whilst their granddaughter Aminitta is at university in Birmingham.

6. At the hearing before me Mr Hodson expanded upon the grounds. He submitted that the judge had erred in considering that the appellants had only had a six month visitor visa, and in putting limited weight upon their private life for that reason, when in fact they had been granted further leave to remain for a year as a result of the exceptional circumstances. The judge's findings were very limited and his consideration of section 117B was based solely upon the appellants' apparent lack of financial independence. There was no consideration of the family ties with Mahdi, or of Mahdi's best interests and none of the case law in the grounds before the First-tier Tribunal had been considered.

7. Mr Wilding submitted that, whilst the judge's decision was brief, it was apparent why he had made the decision that he did and he had reached a lawful outcome on the evidence.

8. Mr Hodson, in response, reiterated the points previously made.

9. Both parties agreed that, in the event that I found that the judge had erred in law, the decision could be re-made on the evidence already available without a further hearing. However, having carefully considered the evidence and the judge's decision, I find myself in agreement with Mr Wilding that the judge did enough in his decision such that it was a lawful one and ought not to be set aside.

Consideration and findings

10. It is correct to say that the judge's reasoning is brief and his specific findings on proportionality are limited to those at [35] to [39]. It is also clear, as Mr Hodson submitted, that the judge was mistaken at [38] in his consideration of the appellants' immigration history and status, since he failed to acknowledge that their leave was extended for a further year following the initial visit visas and their current applications for leave to remain were made when they still had extant leave. However I do not agree that that in itself renders the judge's decision unlawful, when it is otherwise clear, as Mr Wilding submitted, how and why he reached the conclusions that he did and that the conclusions reached were properly open to him on the evidence before him.

11. Whilst the judge did not make a specific finding, with reference to Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, that family life existed between the appellants and their grandson Mahdi, it is clear from his findings at [31] that he accepted that family and private life had been established for the purposes of Article 8. Having found that that was the case he then went on to consider proportionality under Article 8, properly identifying at [33] the necessity to consider the public interest with reference to section 117 of the Nationality, Immigration and Asylum Act 2002. Mr Hodson criticised the judge for going straight on to considering section 117B(iii) and for putting the weight that he did upon that part of section 117B, without giving full consideration to the other factors. However the judge was entitled to take that factor into account and to consider that the appellants were financially dependent upon their family in the UK, in addition to public services. Whilst his reasons at [38] for according little weight to the appellants' private life were based upon an incorrect understanding of their immigration history, it was nevertheless the case that he was entitled to place the weight that he did upon their private life under section 117B(5), as consistent with the approach in AM (S 117B) Malawi [2015] UKUT 0260.

12. Furthermore, although the judge did not revisit each aspect of the appellants' circumstances in his findings from [33] onwards, it is clear that he took account of those circumstances as set out at [10] to [30]. I do not agree with Mr Hodson that [10] to [30] is simply a record of the evidence but consider that a careful consideration of those paragraphs shows that the judge was focussing on positive factors relevant to the weight to be attached to the appellants' interests.

13. Accordingly, I find that the judge's consideration of matters outside the immigration rules was adequate, that his approach to Article 8 outside the rules was a lawful one and one which followed the correct test and correctly applied the relevant principles, and that the outcome was a lawful one.

14. However, even if more detailed findings ought to have been made, it seems to me that the same outcome would be inevitable. It is clear that the appellants could not, and cannot demonstrate that their circumstances are sufficiently compelling to justify a grant of leave outside the immigration rules. The circumstances leading to their application are undeniably unfortunate and sad, but the exceptional circumstances existing at the time when their daughter was terminally ill were recognised by a grant of further leave and it is now three years since her death. Their granddaughter left home for university some time ago and their grandson, upon whom this application is essentially based, was almost 17 at the time of the hearing before the First-tier Tribunal and is now almost an adult. Whilst his best interests may well be best served by his grandparents remaining in the UK, it cannot be said that such interests are sufficient to outweigh the strong public interest factors, particularly when he has his father here and other close relatives to provide him with support. The appellants would be able to continue visiting their family as they did previously and could thereby maintain their close family relationships. Although all parties clearly desire the appellants' extended or permanent residence here, there is no evidence to suggest that their departure would result in a disproportionate interference with their family and private life, or with Mahdi's family and private life, in breach of Article 8.

15. Accordingly, and for the reasons given, I find that there are no errors of law in the judge's decision requiring that it be set aside. The judge came to a lawful conclusion on the evidence before him and provided adequate reasoning for making the findings that he did.

DECISION

16. The making of the decision of the First-tier Tribunal did not involve an error on a point of law requiring the decision to be set aside. I do not set aside the decision. The decision to dismiss the appeal stands.

Signed
Upper Tribunal Judge Kebede Dated: 15th June 2016