Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29599/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14th April 2016
On 30th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR. SOLOMON OFORI
(anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr. C Avery: Home Office Presenting Officer
For the Respondent: Mr. N Garrod: instructed by Just & Brown Solicitors

DECISION AND REASONS
1. The Secretary of State for the Home Department appealed against a decision of First-tier Tribunal Judge Tipping promulgated on 25th March 2015 following a hearing on 10th March 2015.
2. For the reasons set out in my earlier decision, I found an error of law in the decision of First-tier Tribunal Judge Tipping. I set aside the decision of the First-tier Tribunal with no findings preserved. The hearing was adjourned for a continuation hearing to take place so that further evidence could be heard. Full details of the application for permission to appeal, the grant of permission by First-tier Tribunal Judge Holmes, and my reasons for finding an error of law are contained in my previous decision.
3. For ease of reference, in the course of this determination I shall adopt the parties' status as it previously was before the First-tier Tribunal. I shall in this determination, refer to Mr Solomon Ofori as the appellant, and the Secretary of State as the respondent.
4. Borrowing from my earlier decision, I summarise and augment the background. The appellant is a national of Ghana born on 20th June 1992. He claims to have entered the UK in July 2003, aged 11, with 6 months leave to enter. Whilst the date upon which he arrived in the UK is in issue, it is uncontroversial that he has remained in the UK unlawfully save during the 6-month period when he had the benefit of leave to enter.
5. I found that taking the appellant's date of arrival in the UK as 1st September 2003, as First-tier Tribunal Judge Tipping had, the appellant would have been just over 11 years and 2 months old, when he arrived in the UK. Under cover of a letter dated 28th September 2012, the appellant's representatives submitted an application for leave to remain in the UK under paragraph 276ADE(1)(v) and (vi) of the immigration rules. Between 1st September 2003 and the application on 28th September 2012, the appellant had been in the UK just over 9 years. I noted that paragraph 276ADE(l)(v) expressly provides that the requirements are to be met by an applicant "at the date of application", and the Judge therefore erred in finding that the requirements of paragraph 276ADE(1)(v) were met. As at the date of the application, the appellant had been in the UK for just over nine years. He was between the age of 18 and 25, but had not spent at least half his life living in the UK.
6. I found that the First-tier Tribunal Judge had not considered the proper approach to be adopted in Article 8 claims where the requirements of the rules are not met, and neither had the Judge had regard to the public interest considerations that a Tribunal is bound to take account of, under ss117A-D of the 2002 Act. I set aside the decision and directed that the appeal be listed for further hearing before me to remake the decision.
Re-making the Decision
7. I had directed that any further evidence relied on by either party is to be filed and served no later than 14 days before the next date of hearing. Under cover of a letter dated 8th April 2016, the appellant's representatives provided an updated index for a bundle spanning some 526 pages, much of which was material that had previously been before the First-tier Tribunal, but which included a statement made by the appellant, dated 4th March 2015 and 11th April 2016. The bundle also included a selection of photographs that it is said, were taken at a church on 19th April 2003 and show the appellant and other children. The photographs are digitally marked with the date "2003 4 19". Other photographs of the appellant taken in 2015 were also included in the bundle together with internet articles relating the appellant's activities as a footballer.
8. Notwithstanding the failure to file and serve the documents relied upon in accordance with my directions, I permitted the appellant to rely upon all of the documents set out in the updated index. It serves no purpose to refer to all of the documents relied upon by the appellant in this decision. In reaching this decision, I have had careful regard to the documents contained in the appellant's bundle, whether or not a particular document is expressly referred to.
9. At the resumed hearing I heard evidence from the appellant and his aunt, Ms. Theresa Asamoah. I heard submissions from both representatives and in addition I have taken into account the matters set out in the updated skeleton argument produced by Mr. Garrod.
The evidence
10. I first heard evidence from the appellant. The appellant's witness statement is lengthy and much of it repeats what has been said in the correspondence that passed between his representatives and the respondent. The appellant confirms that he was born on 20th June 1992 and that he now lives with his aunt, Ms. Theresa Asamoah, whom he takes to be his mother. He states that he has resided in the United Kingdom since his arrival in early 2003 and that he has not departed the United Kingdom at all since he arrived. He states that he has no family, social or cultural ties with Ghana and there are significant insurmountable obstacles to his return and integration to Ghana.
11. The appellant states that his mother who had been ill and unable to take care of him, died on 22nd August 2006. A copy of her death certificate is to be found in the appellant's bundle and confirms that she died in Ghana on 22nd August 2006. The cause of her death is said to be malaria. The appellant states that his father, who was always absent, died on 18th May 2000. A copy of his death certificate is also to be found in the appellant's bundle and confirms that he died in Ghana on 8th May 2006. The cause of his death is said to be a heart attack.
12. The appellant states that he does not have any family in Ghana. He claims that the only family members that he has, are his aunts Theresa and Augustina who are both British citizens present and settled in the United Kingdom. The appellant regards his aunt Theresa, as his mother.
13. He states that the significant obstacles to his return to Ghana are that he does not have a home there to live in, and no other family members in Ghana to assist him in integrating in Ghana. He has no social, cultural or family ties to Ghana. He states that he was aged 10 years old when he left Ghana and he does not have the means to earn an income in Ghana. The appellant states that the thought of being removed to Ghana or being required to return to Ghana distresses him and he is filled with utter dread, fear and nightmares as to what will happen to him in Ghana. He is close to his aunt Theresa, who looks after him but she is not in a financial position to provide accommodation and to assist him with other living costs in Ghana. The appellant regards the United Kingdom as his home, having lived here since 2003.
14. The appellant refers to the evidence in the appellant's bundle to show that he is fully integrated into the United Kingdom, including the numerous school and college letters and certificates, church letters and certificates, and the photographs taken of him and his family and friends in the United Kingdom. The appellant has submitted extensive evidence of his life as a footballer and he states that had he been granted limited leave to remain, Burnley Football Club would have signed him up.
15. In his evidence before me, the appellant adopted the content of his witness statement. In cross examination, he confirmed that he has no family that he could turn to in Ghana, and that since his arrival in the United Kingdom he has been living with his aunt and his cousin. The family support themselves through the work that the appellant's aunt and cousin undertake. The appellant himself is unable to work although he does play semi-professional football on a part-time basis. When asked why he could not return to Ghana the appellant claimed that he was young when he left, that he had no friends and that he had spent his time in Ghana previously, looking after his mother who was ill. He stated that he has no-one to go back to, and that there are no jobs. His uncle, who had abandoned him, has children but they were attended boarding school and he does not know what happened to them. The appellant confirmed that he was arrested in December 2015 when he was stopped by the police whilst travelling in a car with a friend. He had been questioned, but no charges were brought against him. When asked why he had not taken any steps to sort out his immigration status previously, the appellant claimed that the opportunity had not previously arisen, until he was considering applications to universities. At that point, he realised that he could not apply because of his immigration status. He stated that he had not previously spoken to his aunt about why she had not taken steps previously to regularise his immigration status.
16. I then heard evidence from Theresa Asamoah. She adopted her witness statement dated 4th March 2015 that is to be found in the appellant's bundle. Theresa Asamoah is the half-sister of the appellant's mother. They share the same mother but have different fathers. She provided letters in support of the appellant's application. She considers him like a son and she states that the appellant does not have close family, cultural, or social ties with his country of origin, Ghana.
17. Ms. Asamoah states that the appellant lived in Ghana with another relation, his uncle, before coming to the UK. The appellant's uncle had provided finances for the appellant's sick mother following her illness, and his uncle took him to live in a small town not far from his village, after the appellant's father died. His uncle then decided he could not look after the appellant because he could not pay for his school fees, as he had two children of his own to look after. The appellant's uncle had reluctantly assumed responsibility for the appellant but had since made it quite clear that he was unable to look after, and have the appellant live with him on a permanent basis, as he has his own two children to look after and he was finding it very difficult to look after his own family financially. The appellant's presence was an additional burden.
18. Ms. Asamoah states that the appellant first arrived the United Kingdom in 2003 having been granted a six-month visitor visa by the British High Commission in Accra, Ghana. Upon arrival, the appellant immediately went to live with her at an address in Palmers Green, London. During that visit, Ms. Asamoah became aware of the appellant's life after his father had passed away. She states that she and her cousin Augustina Lewis, made a decision that the appellant should return to Ghana but the appellant was scared to return back to live in the village where he and his mother lived, because his mother was in a really bad state as she was very ill, and could not do anything to provide for her son and herself. The appellant confided in Ms. Asamoah that he and his mother could go for 2 to 3 days without food. He could not go to school in Ghana as his school fees were not paid, and so he had to go on the streets to sell small products like sweets, groundnuts, fruit and water in plastic bags, to passing motorists and pedestrians. Ms. Asamoah and her cousin decided that for the time being, the appellant should remain with them, and they sent money to the appellant's mother in the hope that she would recover and the appellant could return to Ghana. Following the death of the appellant's mother, the question of who the appellant would live with, if returned to Ghana, arose. Return to his uncle was not an option because the appellant's uncle had made it clear that he would only look after the appellant on a short term basis. Ms. Asamoah felt obliged to assume responsibility for the appellant's upbringing and upkeep. She states that she could not live with herself if the appellant returned to Ghana and ended up living with a distant relative. Therefore, she and her cousin Augustina, decided that from their wages they would both contribute towards the appellant's food and other living costs. She refers to the extensive evidence contained in the appellant's bundle about his schooling in the UK and refers to the photographs taken at church in 2003 that show the appellant in the UK. She also refers to entries contained in the records maintained by the respondent that indicate that on 31st March 2014, the respondent was of the view that the appellant should be granted leave to remain in the UK because he met the requirements of the immigration rules.
19. In cross examination, Ms. Asamoah stated that she had not tried to sort out the appellant's immigration status before 2010, because she did not know whether he qualified. She conceded that she was worried that he would not qualify, and she considered that it was not the right time to make an application. By 2012, she realised that the appellant had spent half of his life in the United Kingdom and that without regularising his immigration status, he would not be able to go to University. When asked why she did not arrange for him to return to Ghana previously, Ms. Asamoah stated that it was not her intention to keep the appellant here in the United Kingdom, and originally he was sent to the UK so that he could be looked after whilst his mother was sick. Asked about the appellant's uncle - her half-brother, Ms. Asamoah stated that she does not know his whereabouts and does not even know whether he is alive. She does not know anything about his children and has had no contact with them. She stated that she had tried to get in touch with the appellant's uncle when her sister passed away, but she was unable to contact him. Ms. Asamoah stated that she last went to Ghana in 2011 for a holiday and to see where her sister is buried. She had been shown where her sister is buried by friends. She was asked whether she had made any enquiries about the appellant returning to Ghana, but she explained that there was no one in Ghana that she could make any enquiry with. The friends that she had visited will not be ready to assist the appellant because Ms. Asamoah has been away from Ghana for a long time and she is not particularly close to them. Ms. Asamoah stated that the appellant does not work but attends football practice and does what he can to help local children.
20. I asked Ms. Asamoah where she had stayed during her holiday to Ghana in 2011. She stated that she had stayed with people that she had been introduced to by friends, for a few days at a time. She did not stay in a hotel. She was able to be accommodated in this way because she had previously lived in Ghana and continues to have some friends in Ghana.
The parties submissions
21. On behalf of the respondent, Mr. Avery submits that the issue in this appeal is whether there are very serious obstacles to the appellant's reintegration in Ghana. He accepts that the appellant's situation is difficult because it is not one of his own making. He was a child when he arrived in United Kingdom and the arrangements for his care were entrusted to the adults. That said, Mr. Avery submits that Ghana is an English speaking country and the appellant is now a young man aged 24. He submits that the appellant could find work and a job in Ghana and that the family maintain at least some contact with friends and distant relatives in Ghana, who could help the appellant to reintegrate. Mr. Avery submits that the requirements of the immigration rules are not met and that it is plain from the evidence that the family have attempted to get around the immigration rules. He submits that the appellant was refused leave to remain in 2010 and arrangements should then have been made for the appellant to leave the UK. Mr. Avery submits that there is no evidence that the appellant has no one to turn to in Ghana for some assistance on a short term basis whilst he settles back to life in Ghana, and that in any event, he is an adult aged 24 who is capable of forming his own independent life. Mr. Avery submits that if the appellant would now qualify under paragraph 276ADE(1)(v) of the immigration rules, it is open to him to make an application.
22. On behalf of the appellant, Mr. Garrod adopts the matters that are set out in his skeleton argument. He submits that the appellant is aged 18 years or above, and has lived continuously in the UK for less than 20 years. The issue therefore under paragraph 276ADE(1)(vi) of the Immigration rules is whether there would be "very significant obstacles" to the appellant's integration into Ghana, if he is required to leave the UK. Mr. Garrod reminds me that the appellant arrived in the UK when he was 10 years old. He submits that the "very significant obstacles" are that the appellant's father died when the appellant was of a very young age, and his mother died whilst the appellant has been in the UK. The appellant has now been in the United Kingdom for 13 years having received very limited education in Ghana. He submits that even if there was some hypothetical person that the appellant could turn to for help in Ghana, there would still be very significant obstacles to the appellant's integration into Ghana because of the very young age at which the appellant left Ghana. He submits that it cannot be claimed that the appellant had developed any independent life in Ghana and he would be returning to a culture that is alien to him. Mr. Garrod submits that the appellant has used his time in the United Kingdom usefully, and that there is extensive evidence before me, of the way in which the appellant has positively integrated into the United Kingdom.
23. Mr. Garrod submits that not only would the appellant face the difficulties of integration in Ghana, but he would be expected to do so, having left a close-knit family in the UK that he lives with. They have successfully helped steer him through adolescence in the UK. He would not only need to integrate in Ghana, but would be expected to do so, having been effectively wrenched from his family in the UK. He submits there is no legitimate purpose served by the removal of the appellant from the United Kingdom.
24. Before turning to my findings and conclusions, it is as well at this stage to set out the relevant legal framework. Paragraph 276ADE of the Immigration Rules sets out the requirements to be met by an applicant for leave to remain on the grounds of private life. Insofar as is relevant to this appeal, the rules provide:
Requirements to be met by an applicant for leave to remain on the grounds of private life
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
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(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK.
25. The relevant provisions of ss.117A-117B of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") are as follows:
117A: Application of this Part
(1) This part applies where a court or Tribunal is required to determine whether a decision made under the Immigration Act-
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under Section 6 of the Human Rights Act 1998.
(2) In considering the public interest question the court or Tribunal must (in particular) have regard-
(a) in all cases, to the considerations listed in Section 117B, and
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(3) In sub-Section (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
117B: Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
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Findings and Conclusions
26. The burden of proof is upon the appellant to show, on the balance of probabilities, that he has established a family and/or private life in the UK and that his removal from the UK as a result of the respondent's decision would interfere with those rights. It is then for the respondent to justify any interference caused. The respondent's decision must be in accordance with the law and must be a proportionate response in all the circumstances.
27. It is uncontroversial that the issue in this appeal is confined to paragraph 276ADE of the immigration rules and Article 8 ECHR.
28. I have carefully considered the evidence before me as to the appellant's arrival in the UK and I find that the appellant has been in the UK since at least 12th April 2003. There is no formal record of the appellant's arrival in the UK. The appellant and Ms. Asamoah both confirm in their evidence that the appellant arrived in the UK in 2003. In the application made on form FLR(O) dated 26th September 2012, the appellant declared that he has lived in the UK for 9 years and that he has not visited Ghana since his arrival in 2003. I have been provided with photographs of the appellant that the appellant and Ms. Asamoah claim, were taken on 19th April 2003 at St. Monica's Church in London. The photographs themselves have the date digitally recorded as "2003 4 19" and on a balance of probabilities I am satisfied that the photographs establish that the appellant was in the UK on 19th April 2003. There is no evidence before me as to how long the appellant had been in the UK at the time that those photographs were taken, but I am prepared to accept that the appellant will have arrived in the UK, at least a week before his first attendance at Church. I therefore find, on a balance of probabilities that the appellant has been in the UK since at least 12th April 2003.
29. Based upon my finding that the appellant has been in the UK since at least 12th April 2003, I find that the appellant was 10 years and 9 months old when he arrived in the UK. Under cover of a letter dated 28th September 2012, the appellant's representatives submitted an application for leave to remain in the UK under paragraph 276ADE(1)(v) and (vi) of the immigration rules. Between 12th April 2003 and the application on 28th September 2012, the appellant had been in the UK for 9 years and 5 months.
30. It follows that at the date of application (28th September 2012), the appellant had not spent at least half of his life living continuously in the UK and he did not meet the requirements of paragraph 276ADE(1)(v) of the Immigration Rules.
31. I turn then to paragraph 276ADE(1)(vi) of the Immigration Rules. It is uncontroversial that the appellant is aged 18 years or above, and has lived continuously in the UK for less than 20 years. As Mr. Garrod submits, the issue therefore is whether there would be "very significant obstacles" to the appellant's integration into Ghana, if he is required to leave the UK.
32. Although there is a voluminous bundle of documents relied upon by the appellant, most of that material is evidence of the private life that the appellant has established in the UK. I accept that the extensive evidence that is relied upon by the appellant establishes that he has achieved well in his education, that he is an active member of the church and community and that the appellant has gone as far as he can to establish what is likely to be a promising career in football at a high level.
33. The appellant states in his evidence that he has no family, social or cultural ties with Ghana and that the significant obstacles to his return to Ghana are that he was aged 10, when he left Ghana. His parents have passed away. He does not have a home in Ghana to live in, and no other family members in Ghana to assist him in integrating in Ghana. He claims that he has no social, cultural or family ties to Ghana and he does not have the means to earn an income in Ghana.
34. I find that the appellant's father died on 18th May 2000 whilst the appellant was in Ghana and that his mother died on 22nd August 2006, whilst the appellant was in the UK. A copy of the two death certificates are included in the appellant's bundle and I have no reason to doubt the provenance of those documents.
35. I accept the evidence of Ms. Asamoah that following the death of the appellant's father, the appellant went to live with his maternal uncle, who not only cared for the appellant, but also provided finances for the appellant's sick mother following her illness.
36. In my judgement, the central issue in this appeal is whether there would be "very significant obstacles" to the appellant's integration into Ghana, given the very young age at which he left, and his absence from Ghana for what is now over 13 years. The requirement of "very significant obstacles" sets a demanding standard. It sets out a high threshold to be met. I have carefully considered the evidence before me concerning the circumstances surrounding the appellant's arrival in the UK and the decision's made on his behalf by those that were caring for him. In my judgement, the appellant's own lack of continuing ties to Ghana, and the fact that he found himself an overstayer in the UK through no fault of his own, do not amount to "very significant obstacles" to the appellant's integration into Ghana.
37. Ms. Asamoah states that following the appellant's arrival in the UK, and following the death of his mother, it became apparent that the appellant's return to his maternal uncle was not an option because the appellant's uncle had made it clear that he would only look after the appellant on a short term basis. Whilst it is unsurprising that Ms. Asamoah felt obliged to assume responsibility for the appellant's upbringing, I do not accept that the appellant would be without any family support whatsoever, if he returns to Ghana. The appellant's maternal uncle had previously made it clear that he would only look after the appellant on a short term basis. There is no reason to believe that the appellant's maternal uncle would be unable or unwilling to provide short term assistance to the appellant now if he were to return to Ghana. I have considered the evidence of the appellant and Ms. Asamoah that neither the appellant nor Ms. Asamoah have had any contact with the appellant's uncle. There is very limited evidence before me of the steps taken by Ms. Asamoah to establish any contact with the appellant's uncle and I find that the appellant could take steps to establish contact with his uncle and seek some short term assistance, upon return to Ghana. After all, his maternal uncle was willing to look after the appellant after his father passed away and appears to have been prepared to assist in the care arrangements for the appellant, albeit on a short term basis only. That would allow the appellant an opportunity to integrate into Ghana. The appellant has obtained a number of qualifications whilst he has been living in the UK and clearly speaks English, the official language in Ghana, very well. The appellant would not now need the intense support and care from his maternal uncle that he did previously, when the appellant was much younger.
38. The appellant claims that he would effectively be destitute on return as he would have no home and no means of getting funds from employment. I fully accept that initially the appellant would experience difficulties, but there is credible evidence that Ms. Asamoah has maintained contact with friends in Ghana and has herself been able to visit Ghana and seek the assistance of her friends to locate and visit the grave of the appellant's mother. There is no evidence to suggest that the appellant's uncle and his children, with whom the appellant has previously lived, have left Nigeria. Whilst relationships might have been strained in the past because of the additional burden placed upon the family in looking after the appellant's mother, I find that the appellant would be able to make contact with his uncle in Ghana and seek help for the initial period of return until he is able to make more solid links to Ghana of his own. I do not accept that it would not be possible for the appellant and Ms. Asamoah to seek help from those that they have limited contact with, and who have helped them in the past. I do not accept that work is not available in Ghana to the appellant, given the skills and qualifications that he has gained during his time in the UK.
39. The immigration rules are said to reflect the respondent's view of where a fair balance should be struck between the right to respect for private and family life and public interest considerations relating to the maintenance of an effective system of immigration control (paragraph GEN.1.1 Appendix FM). The rules should be read in a way that reflects a proper interpretation of Article 8 of the European Convention. However, there may some cases where the rules do not address relevant Article 8 issues. In such cases it may be necessary to consider whether there are compelling circumstances to justify granting leave to remain outside the immigration rules: SSHD v SS (Congo) [2015] EWCA Civ 387. This should be assessed by reference to the five stage test outlined by the House of Lords in R v SSHD ex parte Razgar [2004] 3 WLR 58.
40. I have no doubt the appellant has made friends and connections to the UK in the last 13 years. I bear in mind that following the decisions in AG (Eritrea) v SSHD [2007] INLR 407 and VW (Uganda) v SSHD [2009] EWCA Civ 5, the threshold for showing an interference with an appellant's rights under Article 8 is not particularly high. I find that it is likely that the appellant has established some form of private life in the UK and that in all the circumstances of this case removal would interfere with that life in a sufficiently grave way as to engage the operation of Article 8 (points (i) & (ii) of Lord Bingham's five stage approach in Razgar v SSHD [2004] INLR 349).
41. Article 8 of the European Convention protects the right to family and private life. However, it is not an absolute right and can be interfered with by the state in certain circumstances. It is trite law that the state has a right to control immigration and that rules governing the entry and residence of people into the country are "in accordance with the law" for the purpose of Article 8. Any interference with the right to private or family life must be for a legitimate reason and should be reasonable and proportionate.
42. In assessing whether removal in consequence of the decision would be a proportionate response I am required to take into account the public interest considerations set out in section 117B of the Nationality, Immigration and Asylum Act 2002 ("NIAA 2002"). I take into account that it is in the public interest to maintain an effective system of immigration control (s.117B(1)). While the appellant speaks English and is therefore better able to integrate this is a neutral factor that does not add to his case (s.117B(2)). It is merely a factor that does not lend additional weight to the public interest considerations: see AM (S.117B) Malawi [2015] UKUT 260. The appellant relies upon financial assistance from Ms. Asamoah. There is no evidence to show that the appellant is or has financially independence (s.117B(3)). In any event, it would also be a neutral factor.
43. The appellant has remained in the UK as an overstayer and I acknowledge the fact that he found himself an overstayer in the UK through no fault of his own. However, his leave has been precarious throughout his time in the UK. Section 117B(5) states that little weight should be given to a private life that has been established in the UK at a time when a person's immigration status is precarious.
44. The public interest considerations outlined in section 117B are only one part of the proportionality assessment and may still be outweighed if the appellant can show that there are particularly compelling circumstances that might justify granting leave to remain even though he doesn't meet the requirements of the immigration rules. Beyond the appellants age at arrival, and the length of time that he has now been in the UK, I find that there is nothing in the circumstances of this case that could properly be described as raising any such compelling circumstances. Unfortunately, the appellant's understandable desire to remain in the UK does not equate to a right to do so under the law.
45. For the reasons given above I find that removal in consequence of the decision would amount to a proportionate interference with the appellant's right to private life under Article 8 of the European Convention (points (iv) & (v) of Lord Bingham's five stage approach in Razgar).
46. In reaching my decision, I have had regard to the entries in the internal records maintained by the respondent and the view initially recorded that the respondent's caseworker was of the view that by the time of the hearing of an appeal, the appellant would qualify under paragraph 276ADE(1)(v) of the immigration rules. The appellant would not have been aware of that erroneous view until the disclosure of the notes. I find that whenever the appellant became aware of the view set out in the internal records of the respondent, the view set out was erroneous in law and in any event, does not amount to a legitimate expectation that he would be granted leave to remain.
47. It follows that in my judgement the appellant does not qualify for leave to remain under the Immigration Rules or on Article 8 grounds and the appeal is dismissed.
Notice of Decision
48. The decision of the First-tier Tribunal involved the making of an error on a point of law and was set aside. I substitute a fresh decision and dismiss the appeal under the immigration rules and on Article 8 grounds.
49. No anonymity direction is applied for, and none is made.

Signed Date 30th August 2016

Deputy Upper Tribunal Judge Mandalia

FEE AWARD
As I have set aside the decision of the First-tier Tribunal and dismissed the appeal there can be no fee award.

Signed Date 30th August 2016

Deputy Upper Tribunal Judge Mandalia