Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31752/2015

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 7 February 2017
On : 13 February 2017

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

seon yung kim
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms C Warren, instructed by Duhra Solicitors
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of South Korea, born on 6 September 1970. She has been given permission to appeal against the decision of First-tier Tribunal Judge Butler, dismissing her appeal against the respondent's decision to refuse to vary her leave and to remove her from the United Kingdom.

2. The appellant entered the United Kingdom on 3 March 2001 with entry clearance as a student valid until 28 February 2002. She was granted subsequent successive periods of leave to remain as a student until 31 January 2010. On 14 January 2010 she applied for further leave as a Tier 4 General student but her application was refused and her appeal against the refusal decision was dismissed on 5 July 2010. Permission was refused to appeal to the Upper Tribunal and the appellant became appeal rights exhausted on 23 August 2010. On 22 July 2010 the appellant applied for further leave to remain in the same category but her application was voided on 11 August 2010 as she had an ongoing appeal. On 18 November 2010 she applied again for further leave to remain as a Tier 4 General student and was granted leave on 30 December 2010 until 4 February 2012. On 27 January 2012 she applied for further leave to remain as a Tier 1 migrant and was granted leave until 2 August 2014.

3. On 29 July 2014 the appellant applied for indefinite leave to remain in the UK on the basis of 10 years' continuous lawful residence in the UK. Her application was refused on 17 November 2014. The appellant appealed against that decision and at a hearing on 27 February 2015 the decision was withdrawn by the respondent in order for the case to be reviewed. The appeal was treated as withdrawn. The respondent then made a new decision on 11 September 2015 refusing the appellant's application again. The appellant appealed against that decision.

4. In refusing the appellant's application, on 11 September 2015, the respondent noted that she was without leave from 24 August 2010 until 29 December 2010, a total of 126 days, and was therefore considered to have broken her continuous residence in the UK. She was unable to demonstrate 10 years' continuous lawful residence and could not meet the requirements in paragraph 276B(i)(a). The respondent considered the appellant's further submissions but did not agree to exercise discretion in her favour and refused her application for indefinite leave to remain. The respondent went on to consider the appellant's application under Article 8 but found that she did not meet the criteria in Appendix FM on the basis of family life and that she could not meet the requirements in paragraph 276ADE(1) on the basis of private life or demonstrate that there were any exceptional circumstances justifying a grant of leave outside the immigration rules.

5. The appellant's appeal challenging that decision was heard on 27 July 2016 by First-tier Tribunal Judge Butler. The judge heard from the appellant and her long-term platonic friend Reverend Canon Lenox-Conyngham. The appellant's evidence before the judge was that she had been living with Reverend Canon Lenox-Conyngham at St Luke's Vicarage for more than ten years, since 2006, initially as a lodger but subsequently as a close friend akin to family. She gave evidence about her involvement in the Christian faith and church activities and her work running a bible group. The Reverend Canon Lenox-Conyngham said that he considered the appellant as a kind of surrogate daughter. She was a beneficiary under his will along with his two brothers and two friends. He had been diagnosed with prostate cancer and may need an operation in the future and also had problems with his left eye and he would need her help with post-operative care. It was said that they were both dependent upon each other. It was argued before the judge that the appellant's relationship with the Reverend Canon Lenox-Conyngham should be equated to family life and that there were exceptional and compelling circumstances including the fact that the gap in her continuous lawful residence had been as a result of her former solicitor delaying in putting in her application, so that weight should be attached to her private life.

6. Judge Butler did not accept that the appellant's relationship with the Reverend Canon Lenox-Conyngham amounted to family life and he therefore considered the case on the basis of private life. He concluded that the appellant's particular circumstances were not exceptional or compelling circumstances and that the interference with her private life caused by her removal would not be disproportionate for the purposes of Article 8.

7. The appellant then sought permission to appeal to the Upper Tribunal, on the grounds that the judge had erred by failing to treat the appellant's relationship with Reverend Canon Lenox-Conyngham as an element of her private life which was akin to or cognate with family life and had thus erred by applying section 117B(5) of the Nationality, Immigration and Asylum Act 2002 and placing little weight on her private life. The grounds asserted further that the judge had erred by finding that the appellant was not financially independent.

8. Permission to appeal was granted on 15 November 2016 on all grounds.

Appeal hearing

9. At the hearing Ms Warren relied on new case law produced subsequent to the judge's decision but which was relevant to the decision, namely Lama (video recorded evidence -weight - Art 8 ECHR) [2017] UKUT 16, Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test : Mauritius) [2017] UKUT 13 and Kaur (children's best interests / public interest interface) [2017] UKUT 14. Ms Warren relied on the case of Lama in particular as the President found in that case that family life could exist on the basis of cohabitation in circumstances such as those in the appellant's case. She submitted that the judge was therefore wrong simply to reject outright the contention that family life existed. Further, the judge erred by relying on the case of MM (Tier 1 PSW; Art 8; private life) Zimbabwe [2009] UKAIT 00037 when considering private life, which was predicated on the contention that the relevant private life could be formed elsewhere and was entirely different to the appellant's circumstances. The judge failed to consider whether the appellant's relationship with Reverend Canon Lenox-Conyngham was one that was irreplaceable, in the broader sense set out at [41] of Lama, and failed to consider the part played by the appellant in enabling Reverend Canon Lenox-Conyngham to continue his important role. Ms Warren submitted further that the judge erred in his approach to s117B(5) and the "little weight" provisions, when the appellant's private life was akin to family life and was therefore at the upper end of the "little weight" scale, as considered in Treebhawon and Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803. She submitted that the judge also erred by finding that the appellant was not financially independent.

10. Mr Jarvis submitted that there was a clear distinction between family life and private life. The judge clearly understood the nature of the appellant's relationship with Reverend Canon Lenox-Conyngham. None of the authorities cited took the legal issue any further. The judge correctly approached the case on the basis of a platonic friendship and as one of private life. He applied the correct test of "compelling circumstances" and was entitled to conclude that there were none. There was no misapplication of section 117B(5). The judge's finding on financial independence was consistent with what was said in Rhuppiah, but in any event was not determinative.

11. Ms Warren, in response, reiterated the points made previously.

Consideration and findings

12. Contrary to Ms Warren's submission, I find nothing inconsistent in the judge's decision with the more recent cases of Lama, Treebhawon and Kaur and I agree with Mr Jarvis that none of those authorities take the relevant legal issues in the appellant's case any further.

13. It is not the case that the judge rejected outright the possibility of family life existing on the sole basis of an absence of blood ties, but it is plain that his findings at [40] and [41] followed a careful consideration and a full understanding of the nature and extent of the appellant's relationship with Reverend Canon Lenox-Conyngham and the elements of dependency therein. The President's decision in Lama did not establish any new and novel principle that a private life based on a relationship such as the appellant's which could not be replicated outside the UK amounted to family life, but considered in that case at [41] that the fact that the appellant was irreplaceable in a broader sense was a material matter in the very specific circumstances of that case. As the President said at [46] of Lama, that was a highly unusual and intensely fact sensitive case and, even on the basis of such an unusual case he accepted at [37] that his finding that family life existed may be viewed as controversial. I do not consider that there was any intention, in that case, to undermine or water down the established principles in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31. Clearly the appellant's circumstances are very different to those in Lama and it seems to me that they are more akin to those in Rhuppiah, where there was no suggestion that there was family life. Accordingly the judge was entitled to find, and indeed properly found, that the relationship between the appellant and Reverend Canon Lenox-Conyngham did not amount to family life, and there was nothing inconsistent with the established legal principles in such a conclusion.

14. The appellant's case, in such circumstances, is that the judge erred by relying on the principles in MM when considering the weight to be attached to the appellant's private life, since that ignored the quasi-family life quality to the appellant's private life and the fact that her relationship with Reverend Canon Lenox-Conyngham was irreplaceable. It is asserted that the judge erred in his application of section 117B(5) by according only little weight to the appellant's private life. However, and on the contrary, it is clear that the judge, at [44], in response to the submissions made by the respondent in regard to section 117B(5) and the question of "little weight", was specifically making the point that appropriate weight should be given to social ties and relationships formed in the UK. It seems to me that the judge was in fact making the same point that was made in Rhuppiah, Treebhawon and Kaur, that there was a spectrum in the quantum of weight ([9] of Kaur) and that "little weight" did not mean "no weight".

15. It is, furthermore, relevant to note that in Rhuppiah, the Court of Appeal considered that the requirement for a Tribunal to have regard to the consideration that "little weight" should be given to private life established at a time of a precarious immigration status could be overridden in an exceptional case by particularly strong features of the private life in question. At [53] the Court said:

"That is to say, for a case falling within section 117B(5) little weight should be given to private life established in the circumstances specified, but that approach may be overridden where the private life in question has a special and compelling character"

16. At [54] the Court referred to the necessity to show "compelling reasons" to depart from the "little weight" requirement in section 115B(5) and to the test being one of "compelling circumstances".

17. Plainly, that was the argument made by the appellant's representative before Judge Butler at [34] and which he considered at [56]. The judge gave careful consideration to all the circumstances which were claimed to make the appellant's case a compelling one, including the 126 day period which prevented her from acquiring indefinite leave to remain, the complaint about her former solicitor delaying in making her application, the reason for the previous refusal decision being withdrawn, but more significantly the appellant's relationship with Reverend Canon Lenox-Conyngham, the Reverend Canon's medical conditions, the need for support and the level of dependency between them, and the appellant's other ties to the UK and to South Korea. All of these matters were considered in detail at [50] to [59] when the judge assessed proportionality under Article 8 and clear and cogent reasons were given by the judge as to why they did not amount to compelling circumstances. As to the question of whether or not the appellant was financially independent, it seems to me that the judge's finding in that respect was consistent with what was said in Rhuppiah at [63] to [65], but in any event I agree with Mr Jarvis that that was not a determinative matter which materially affected the outcome of his proportionality assessment.

18. For all of these reasons it seems to me that the judge's decision is unassailable. The judge gave detailed and careful consideration to all the evidence and to all relevant matters and gave the appropriate weight that he could to the appellant's relationship with Reverend Canon Lenox-Conyngham and to all aspects of her private life in the UK. He applied the correct legal principles and reached a conclusion that was entirely open to him on the evidence before him. I find no errors of law in his decision.

DECISION

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

Signed

Upper Tribunal Judge Kebede Dated: