(Immigration and Asylum Chamber) Appeal Number: IA/29736/2011
THE IMMIGRATION ACTS
Heard at Field House
On 26 June 2012
On 5 June 2013
UPPER TRIBUNAL JUDGE CRAIG
ms merlene williams
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr A Pretzell, Counsel, instructed by Makka Solicitors Ltd.
For the Respondent: Ms M Tanner, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant, who was born on 28 February 1955, is a national of Jamaica. She claims to have arrived in this country in November 2000 as a visitor, and this is not disputed on behalf of the respondent. Subsequently, it appears that she remained in this country lawfully until February 2007, when she applied for further leave to remain as a carer. That application was refused by the respondent but the appellant remained in this country without leave.
2. In late 2010 the appellant applied for further leave to remain outside the Rules, but this application was refused by the respondent on 27 January 2011. The refusal letter is dated the same date. Because the application was made at a time when the appellant did not have valid leave to remain, she had no right of appeal against this decision.
3. Subsequently, the appellant asked for the decision to be reconsidered, but the respondent refused this application as well. The refusal letter is dated 27 September. On this date, the respondent also served a notice on the appellant informing her of her liability to detention and removal. This decision did carry a right of appeal.
4. As was her right, the appellant appealed against this decision, and her appeal was heard before Immigration Judge Prior, sitting at Hatton Cross on 24 November 2011.
5. In a short determination, promulgated on 30 November 2011, Judge Prior dismissed the appellant’s appeal. He found that the appellant’s claim under Article 3, which had been put on the basis of withdrawal of medication as a result of her removal to Jamaica, was not made out, and he also rejected her claim under Article 8.
6. The appellant appealed against this decision. The grounds do not challenge the decision under Article 3, but assert that Judge Prior’s consideration of the appellant’s Article 8 claim had contained errors of law such that that part of his decision fell to be set aside and re-made by the Upper Tribunal.
7. The appellant was granted permission to appeal by Immigration Judge J M Holmes on 15 December 2011. In granting permission to appeal, Judge Holmes stated as follows:
“…2. There is no challenge to the judge’s approach to the evidence of the appellant’s health. Although the judge was not assisted by any representation on behalf of the respondent it is however arguable that the judge did not make a proper analysis of the evidence of the appellant’s ‘private life’ in the UK as established since entry in November 2000, or make adequate findings of fact in relation to either it, or to the strength of her connections with Jamaica, and family remaining in Jamaica. It is arguable that the finding that her Article 8 rights were not engaged by the decision to remove was in these circumstances perverse as not being open to him on the evidence, the threshold for engagement is not a high one. It is also arguable (i) that the judge did not follow the Razgar step-by-step approach to the Article 8 appeal, and, (ii) that the judge failed to identify the true burden of proof in relation to Article 8(2), and, (iii) what it was that justified the interference in any ‘private life’ that was established, and, (iv) thus made no adequate assessment of the proportionality of the removal decision. In the circumstances it is also arguable that there was no adequate approach to the issues raised by paragraph 395C.”
8. This appeal then came before me on 26 June 2011. I heard submissions on behalf of both parties, which I shall not set out verbatim, as they were recorded contemporaneously by me, and are set out in my Record of Proceedings. Having considered these submissions, and also all the evidence which was contained within the file, I found that Judge Prior’s consideration of the appellant’s Article 8 claim had contained material errors of law, such that that part of his decision must be set aside and re-made by the Upper Tribunal. My reasons are as follows. Judge Prior failed to give any (let alone any adequate) reasons why Article 8(1) was not engaged, as he had found at paragraph 12 of his determination. I also considered that if, the respondent being unrepresented, Judge Prior had been considering making a finding that the evidence as to the appellant’s relationship with her family was inadequate, given that both the appellant and her daughter were present at the Tribunal, he should have indicated these doubts to the appellant’s Counsel, so that they could have been addressed. I also considered, and find, that Judge Prior did not follow the step-by-step approach posited by Lord Bingham in Razgar.
9. Having informed the parties that I had found an error of law, I then went on to re-hear the appeal, in order to make the decision.
10. During the course of the hearing, evidential matters were canvassed with the parties, and subsequently, I was told by the appellant’s Counsel that the appellant’s daughter, who had given evidence during the hearing, had further documents which should be before the Tribunal before any final decision was made.
11. As a result of these submissions, I agreed that I would consider any further material on the point at issue and any submissions made in respect of this material before making a determination, and I gave directions to this effect, in a document entitled “Decision and Further Directions” which was dated the same date as the hearing. In this document, I gave further directions giving the appellant permission to file further evidence, and setting out the time in which this evidence should be submitted to the Tribunal. In accordance with these directions, some further documents were submitted on behalf of the appellant.
12. Unfortunately, the file in this appeal was then misplaced, as a result of which I did not write my determination within the timescale I had originally intended. However, the file is now before me, and with the assistance of my Record of Proceedings, I am now able to give my determination.
13. Having found an error of law, the Tribunal then heard evidence on behalf of the appellant. The appellant herself gave evidence, followed by her daughter, Maxine Chambers and Sharon Carr, whose mother was being looked after by the appellant. These witnesses were all cross-examined. I had also previously been provided with a bundle of documents on behalf of the appellant, which included various statements of support for the appellant. Following the live evidence of the witnesses, I then heard submissions on behalf of both parties.
14. I recorded the evidence contemporaneously, and this is contained in the Record of Proceedings. Accordingly, I shall not set out this evidence word for word, but shall refer below only to such parts of the evidence as is necessary for the purposes of this determination. I have, however, taken full account of everything which was said to me during the course of the hearing, as well as to all the documents contained within the file.
15. The appellant’s case is summarised concisely in the skeleton argument which was prepared on her behalf by Mr Pretzell. The appellant has been in this country for a long period of time, since 2000, and had valid leave to remain until 2007. She has a daughter and two granddaughters who are settled in the UK and whom she regularly sees. She has co-habited with them in the past, over a three year period between 2007 and 2010. She sees her grandchildren regularly now. She also has a close relationship with Enid Carr, who is an elderly lady suffering from Alzheimer’s, who is the mother of Sharon Carr, who is said in the skeleton argument to be the appellant’s church pastor. It is also said that the appellant is Mrs Carr’s primary carer, with whom she lives in. The appellant has no immediate family in Jamaica to whom she could turn were she to have to return there. She is not in receipt of benefits, and has not sought to rely on public funds whilst in the UK. She has never been involved in any criminal activities.
16. The respondent’s case was summarised by Ms Tanner in her closing submissions. While it was accepted that the appellant had a private life in this country, it was not accepted that her ties with her daughter and grandchildren went beyond the normal ties of a nice family. It was accordingly not accepted that the appellant had a “family” life (as opposed to a private life) in this country on normal Kugathas principles. The appellant now lived in a different city from her daughter and grandchildren and there was nothing in the pattern of their visiting each other which suggested that the relationship went beyond the normal ties to be expected between a grown up daughter and her mother.
17. Although the appellant was stating that she could not afford to continue her medical treatment in Jamaica, there was no Article 3 claim here. Mr Pretzell accepted that the appellant could not succeed on this ground alone, but he did argue that it was a factor to be considered when the Tribunal decided whether removal was proportionate under Article 8.
18. Although there was evidence that the appellant did care for Enid Carr, the nature of that evidence had to be considered with care. On a number of matters contradictory evidence had been given. It was not clear as to whether she was in fact living with Mrs Carr, or, if she was, for what periods she had been living with her. There was a lot of documentary evidence showing her address as 74 Nelson’s Road, including her own application where she gave that address. That address was apparently still listed on the court file, and the respondent also relied on a letter from Sharon Carr, Mrs Carr’s daughter, of 16 November 2011, where she referred to the appellant being “expected to come to the home”, which would suggest she had not in fact been living there. It was the respondent’s case that the appellant said she was living with Mrs Carr in order to make her claim seem stronger than in fact it was.
19. Although Ms Tanner initially submitted that there was no evidence before the Tribunal to confirm the nature and extent of the type of care which Mrs Carr needed, in fact this evidence was contained at pages 14 to 18 of the bundle prepared for this hearing, which Ms Tanner had not had an opportunity to see before the date of the hearing.
20. If the appellant had to return to Jamaica, Mrs Carr’s daughter, Sharon Carr could make alternative arrangements for her mother.
21. Although the appellant had a private life in connection with the church, which was well supported by letters, she had had a churchgoing life before in Jamaica, and when she returned she could continue to establish herself there as she had done over here. Article 8 did not confer a right to an alien either to a job or a home in the UK, so on that aspect, the appellant would have to provide for herself.
22. It was proportionate to require the appellant to leave this country, in light of her immigration history. She had spent seven years in this country lawfully, but that was just one factor. The most weighty consideration was that she had decided to stay and having attempted to renew her permission to remain and failed, she stayed anyway. She should have left.
23. In his closing submissions, Mr Pretzell re-made the points which I have already summarised above. He submitted that there was a family life between the appellant and her daughter and grandchildren. She had actually co-habited with them between 2007 to 2010, although it was accepted that contradictory evidence had been given on this point.
24. Although it was accepted that there was also contradictory evidence as to precisely what she did for Mrs Carr, the evidence was that Mrs Carr could not dress or feed herself, and the appellant gave big support. It was clear that the appellant gave a great service to Mrs Carr, not in the context of her being remunerated but in return for board and lodging. This put a roof over her head.
25. Mr Pretzell addressed me briefly with regard to the inconsistencies regarding the address, and then referred to the domestic history of the appellant’s daughter, who had been the victim of domestic violence, with regard to which the appellant had given her emotional support.
26. Although the difficulties which the appellant would have with regard to her medication were she to return to Jamaica would not entitle her to remain under Article 3, this was nonetheless a factor to be taken into account when the Tribunal considered Article 8.
27. Mr Pretzell also reminded the Tribunal that the appellant had been here lawfully for seven of the twelve years or so that she had been here, and that her overstaying had not been particularly reprehensible. She had not significantly contrived to evade immigration control, but had at least attempted to regularise her position from shortly after her leave had run out. The public interest in removing her was less than it would have been for someone who had been here for less time or whose immigration history was worse.
28. Asking myself the questions posited by Lord Bingham in Razgar, I must consider first whether the appellant’s removal would be an interference with the exercise of her right to respect for her private or family life, and then, if so, whether this interference would have consequences of such gravity as potentially to engage the operation of Article 8. Clearly this appellant does have a private life in this country, having been here since 2000, and clearly her Article 8 rights would be engaged by her removal. I discuss below the strength of that private or family life.
29. Clearly also, such interference as there would be would be in accordance with the law and is necessary in a democratic society in the interests of the economic well-being of the country, through the maintenance of a fair and effective system of immigration control.
30. The real issue this Tribunal now has to determine is whether the removal of this appellant, taking account of all the factors, both for and against removal, is proportionate for this purpose.
31. I do not propose to analyse the evidence which was put before me in minute detail. It was clear that there were a number of inconsistencies in the evidence, some of which remain unexplained. This was acknowledged by Mr Pretzell on behalf of the appellant. However, I feel able to find the following facts, on the balance of probabilities. This appellant has a good relationship with her daughter and grandchildren, and sees them regularly. Whether or not this amounts to “family life” it is perhaps unnecessary to decide, as it is plainly a significant part of her private life in this country, and the interference with this aspect of her private life would cause her and her family significant distress. The appellant also has a private life insofar as she provides considerable assistance to Mrs Carr. Again, while I cannot make any precise findings as to exactly what she does for Mrs Carr, it is clear that Mrs Carr is very ill indeed and that the help given to her by this appellant is significant. It has also gone on for a substantial period of time.
32. I accept that the appellant is closely involved with her church in this country, and while she could almost certainly build up new relationships on return to Jamaica, again the disruption to that aspect of her life would be significant.
33. I take into account also that this appellant has been in this country for a long period of time, and that of that time, she was here lawfully for about seven years. I also do not consider that her immigration history contains any significant factors which need to be given weight beyond the fact that she overstayed.
34. This is also not a case where the appellant has committed any offences while she has been here (beyond overstaying) and nor has she been in receipt of benefits.
35. I do not consider that her ability or otherwise to obtain medication on return to Jamaica is a significant factor.
36. While of course the need to remove overstayers for the economic well-being of the community as a whole is an important factor, the public interest in removing such persons must in this case be reduced to some extent by the length of time this appellant has been in this country, of which, as already noted, a significant proportion of this was lawful.
37. Although this is a finely balanced decision, when I weigh up all the competing factors, on the facts of this case I do not consider that the removal of this appellant after the length of time she has been in this country, would be proportionate. It follows that her appeal must be allowed.
I set aside the determination of the First-tier Tribunal as containing a material error of law and I substitute the following decision:
The appellant’s appeal is allowed, under the Immigration Rules.
Signed: Dated: 4 June 2013
Upper Tribunal Judge Craig