IA/32304/2015
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Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/32304/2015
THE IMMIGRATION ACTS
Heard at Glasgow on 10 April 2017
Decision & Reasons Promulgated
On 10 April 2017
On 20 April 2017
Before
UPPER TRIBUNAL JUDGE MACLEMAN
Between
SERHAT OZEL
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
For the Appellant: Mr G Singh, of Ethnic Minorities Law Centre, Glasgow
For the Respondent: Mrs M O’Brien, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a citizen of Turkey, born on 23 April 1987.
2. On 29 January 2015, the appellant applied for indefinite leave to remain as a business person under the Immigration Rules HC510 in force in 1973 and the Turkey – European Community Association Agreement (ECAA).
3. The respondent refused that application by letter and notice both dated 16 September 2015, for these reasons:
In terms of ¶4 of HC510, it was undesirable to permit the appellant to remain in the UK, in light of criminal convictions which met the relevant sentencing thresholds;
The appellant failed to notify the police as required when he changed his address; and
The respondent was not satisfied that the appellant had spent a continuous period of 4 years as a business person: accounts produced for 2012 and 2013, but no evidence of trading in 2014 and 2015; no evidence of payment of tax and national insurance contributions.
4. The letter advised the appellant that any application for leave based on family and private life (article 8 of the ECHR) should be made by separate application. However, he was also advised of a right of appeal on the grounds that removal would be incompatible with his rights under the ECHR.
5. The appellant did not test the option of an application to the respondent, matched to the requirements of the rules for leave based on family and private life.
6. The appellant appealed to the FtT. His grounds say that his appeal should be allowed in respect of the “ECAA” rules, and that he has a right to leave under article 8, irrespective of compliance with the immigration rules.
7. Designated Judge Murray dismissed the appellant’s appeal by decision promulgated on 15 November 2016, both under the rules and under article 8.
8. The appellant applied to the FtT for permission to appeal to the UT.
9. Designated Judge Woodcraft refused permission on 16 December 2016. He observed that although the grounds said that mitigation should have been considered in respect of the convictions, that was no part of the rules and so disclosed no error; and that the grounds disclosed no arguable error in relation to article 8.
10. Permission was granted by the UT on 8 March 2017.
11. The appellant relies upon 4 grounds, repeated and amplified in a skeleton argument:
(1) The FtT had no regard to s.117B(6) of the 2002 Act; not reasonable to expect the appellant’s son to relocate to Turkey; family rooted in the UK and no savings to re-establish themselves in Turkey; no meaningful relationship possible if separated from his son; best interests of son; removal “would have a disastrous impact upon his family and result in separation from his young son”.
(2) The FtT left out of account whether it would be reasonable to expect the appellant’s step-son [?] Cassius to separate from his step-son Devon-Reece, also a UK citizen; strong family bond between appellant and Devon-Reece, who attends college and could not relocate to Turkey due to disruption to his education; he has asthma and diabetes and needs his mother and the appellant for parental support.
(3) The FtT analysed proportionality on the false premise the family would be tourists in Turkey; the appellant’s partner said she would not relocate; she was unable to cope as she has two children and cares for her [great-aunt] who has dementia.
(4) The other side of the [proportionality] equation requires regard to the desirability that families are not broken up; no evaluation of those essential criteria; offending at the most minor end of the scale.
The skeleton argument under the last ground proceeds to an overall restatement of the case for the appellant.
The skeleton argument finishes at ¶22 with the statement that under the “standstill” clause the appellant should have his application as a business person considered under rules no less favourable than those in force on 1 January 1973. (The point is not developed to show that the respondent may have misapplied the rules in any respect, or that there are any rules which might have produced a different result.)
12. Having heard also from the Presenting Officer, I reserved my decision.
13. The appellant advanced nothing by which his case might have succeeded by reference to the Immigration Rules HC510 in force in 1973 and the Turkey – European Community Association Agreement (ECAA). Failure to notify his change of address might be objectively trivial. His convictions, while not as nominal as he tried to portray, were not particularly serious. That is all by the way, because the ECAA case was dismissed in terms of the applicable rules for the reasons given by the judge at ¶47-49, in which no error has been suggested.
14. That part of the case appears to have been hopeless in any event, for lack of meaningful evidence of business activity.
15. The appellant has approached his case as if a relative near-miss (as he contends) in the ECAA case brings him near to success outside the rules. That is misconceived. To show a right to remain in the UK under article 8 of the ECHR, regardless of compliance with the rules, is a high target. It is to be assessed firstly by reference to the rules on leave to remain based on family and private life, not by reference to how near the ECAA case came to success.
16. The appellant did not set out his case by reference to the rules for leave based on family and private life, which would be the correct starting point – e.g. suitability, eligibility, minimum income requirements, and insurmountable obstacles.
17. The grounds and submissions in respect of article 8 are a dogged but somewhat confused insistence upon the case put to the FtT, rather than identification of any error of law in its decision.
18. Dealing with specific points in the grounds:
(1) The judge was not referred to s.117B(6). She did not cite it specifically, but it is plain (¶57-58 in particular) that she found nothing unreasonable in expecting the child Cassius to leave the UK.
(2) Devon-Reece is not a child but a young adult. While that does not mean that family relationships involving him were irrelevant, the judge found that he would not be going to Turkey. There is nothing in this aspect of the case which discloses error of law or might have led to another outcome.
(3) The judge cited Foreign Office advice to which she was referred. She did not conflate prospective removal to Turkey with tourism. This ground is based on a misreading of ¶56. There was no need for the family to relocate in that limited area of Turkey which Foreign Office advice is to avoid.
(3) and (4) Whether the couple relocate together to Turkey was a matter for them, not for the judge, as she said at ¶58. She evaluated the proportionality of putting them to that alternative, under all the circumstances. Her decision is in line with the case law as it has developed, most recently in Muhammad Arslan Khan [2016] CSIH 13.
19. The grounds and submissions do not resolve into any more than disagreement with a proportionality assessment which was open to the judge, is firmly rooted in the facts of the case, and discloses no error of legal approach.
20. The determination of the First-tier Tribunal shall stand.
21. No anonymity direction has been requested or made.
11 April 2017
Upper Tribunal Judge Macleman
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/32304/2015
THE IMMIGRATION ACTS
Heard at Glasgow on 10 April 2017
Decision & Reasons Promulgated
On 10 April 2017
On 20 April 2017
Before
UPPER TRIBUNAL JUDGE MACLEMAN
Between
SERHAT OZEL
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
For the Appellant: Mr G Singh, of Ethnic Minorities Law Centre, Glasgow
For the Respondent: Mrs M O’Brien, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a citizen of Turkey, born on 23 April 1987.
2. On 29 January 2015, the appellant applied for indefinite leave to remain as a business person under the Immigration Rules HC510 in force in 1973 and the Turkey – European Community Association Agreement (ECAA).
3. The respondent refused that application by letter and notice both dated 16 September 2015, for these reasons:
In terms of ¶4 of HC510, it was undesirable to permit the appellant to remain in the UK, in light of criminal convictions which met the relevant sentencing thresholds;
The appellant failed to notify the police as required when he changed his address; and
The respondent was not satisfied that the appellant had spent a continuous period of 4 years as a business person: accounts produced for 2012 and 2013, but no evidence of trading in 2014 and 2015; no evidence of payment of tax and national insurance contributions.
4. The letter advised the appellant that any application for leave based on family and private life (article 8 of the ECHR) should be made by separate application. However, he was also advised of a right of appeal on the grounds that removal would be incompatible with his rights under the ECHR.
5. The appellant did not test the option of an application to the respondent, matched to the requirements of the rules for leave based on family and private life.
6. The appellant appealed to the FtT. His grounds say that his appeal should be allowed in respect of the “ECAA” rules, and that he has a right to leave under article 8, irrespective of compliance with the immigration rules.
7. Designated Judge Murray dismissed the appellant’s appeal by decision promulgated on 15 November 2016, both under the rules and under article 8.
8. The appellant applied to the FtT for permission to appeal to the UT.
9. Designated Judge Woodcraft refused permission on 16 December 2016. He observed that although the grounds said that mitigation should have been considered in respect of the convictions, that was no part of the rules and so disclosed no error; and that the grounds disclosed no arguable error in relation to article 8.
10. Permission was granted by the UT on 8 March 2017.
11. The appellant relies upon 4 grounds, repeated and amplified in a skeleton argument:
(1) The FtT had no regard to s.117B(6) of the 2002 Act; not reasonable to expect the appellant’s son to relocate to Turkey; family rooted in the UK and no savings to re-establish themselves in Turkey; no meaningful relationship possible if separated from his son; best interests of son; removal “would have a disastrous impact upon his family and result in separation from his young son”.
(2) The FtT left out of account whether it would be reasonable to expect the appellant’s step-son [?] Cassius to separate from his step-son Devon-Reece, also a UK citizen; strong family bond between appellant and Devon-Reece, who attends college and could not relocate to Turkey due to disruption to his education; he has asthma and diabetes and needs his mother and the appellant for parental support.
(3) The FtT analysed proportionality on the false premise the family would be tourists in Turkey; the appellant’s partner said she would not relocate; she was unable to cope as she has two children and cares for her [great-aunt] who has dementia.
(4) The other side of the [proportionality] equation requires regard to the desirability that families are not broken up; no evaluation of those essential criteria; offending at the most minor end of the scale.
The skeleton argument under the last ground proceeds to an overall restatement of the case for the appellant.
The skeleton argument finishes at ¶22 with the statement that under the “standstill” clause the appellant should have his application as a business person considered under rules no less favourable than those in force on 1 January 1973. (The point is not developed to show that the respondent may have misapplied the rules in any respect, or that there are any rules which might have produced a different result.)
12. Having heard also from the Presenting Officer, I reserved my decision.
13. The appellant advanced nothing by which his case might have succeeded by reference to the Immigration Rules HC510 in force in 1973 and the Turkey – European Community Association Agreement (ECAA). Failure to notify his change of address might be objectively trivial. His convictions, while not as nominal as he tried to portray, were not particularly serious. That is all by the way, because the ECAA case was dismissed in terms of the applicable rules for the reasons given by the judge at ¶47-49, in which no error has been suggested.
14. That part of the case appears to have been hopeless in any event, for lack of meaningful evidence of business activity.
15. The appellant has approached his case as if a relative near-miss (as he contends) in the ECAA case brings him near to success outside the rules. That is misconceived. To show a right to remain in the UK under article 8 of the ECHR, regardless of compliance with the rules, is a high target. It is to be assessed firstly by reference to the rules on leave to remain based on family and private life, not by reference to how near the ECAA case came to success.
16. The appellant did not set out his case by reference to the rules for leave based on family and private life, which would be the correct starting point – e.g. suitability, eligibility, minimum income requirements, and insurmountable obstacles.
17. The grounds and submissions in respect of article 8 are a dogged but somewhat confused insistence upon the case put to the FtT, rather than identification of any error of law in its decision.
18. Dealing with specific points in the grounds:
(1) The judge was not referred to s.117B(6). She did not cite it specifically, but it is plain (¶57-58 in particular) that she found nothing unreasonable in expecting the child Cassius to leave the UK.
(2) Devon-Reece is not a child but a young adult. While that does not mean that family relationships involving him were irrelevant, the judge found that he would not be going to Turkey. There is nothing in this aspect of the case which discloses error of law or might have led to another outcome.
(3) The judge cited Foreign Office advice to which she was referred. She did not conflate prospective removal to Turkey with tourism. This ground is based on a misreading of ¶56. There was no need for the family to relocate in that limited area of Turkey which Foreign Office advice is to avoid.
(3) and (4) Whether the couple relocate together to Turkey was a matter for them, not for the judge, as she said at ¶58. She evaluated the proportionality of putting them to that alternative, under all the circumstances. Her decision is in line with the case law as it has developed, most recently in Muhammad Arslan Khan [2016] CSIH 13.
19. The grounds and submissions do not resolve into any more than disagreement with a proportionality assessment which was open to the judge, is firmly rooted in the facts of the case, and discloses no error of legal approach.
20. The determination of the First-tier Tribunal shall stand.
21. No anonymity direction has been requested or made.
11 April 2017
Upper Tribunal Judge Macleman