Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/33617/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 December 2016
On 13 January 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

the Secretary of State for the Home Department
Appellant
and

Lisa Merline morgan
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: Ms S Iengar, Counsel instructed by Divine Legal Practice

DECISION AND REASONS

1. The respondent (hereafter the claimant) is a citizen of Jamaica. On 6 October I found that there had been a material legal error on the part of First-tier Tribunal Judge Ferguson who on 11 November 2015 had allowed her appeal under the Immigration Rules and outside the Rules on Article 8 grounds. However, expressly preserving Judge Ferguson's findings of fact, I noted that one of the essential requirements to be considered when the decision was re-made was whether there are very significant obstacles to the claimant's reintegration in Jamaica and the evidence and submissions on that up to that point were insufficient for me to reach a considered view.

2. At the resumed hearing before me I heard evidence first from the claimant's daughter, Miss Powell. She said that she had been back to Jamaica for a visit in July-August 2016. She had seen her brother the same day she was due to come back to the UK. He had explained to her that there had been trouble at his property and men who lived in the area had destroyed his home. He had fled to Haiti to escape the trouble. His wife and children had stayed behind with her (his wife's) mother. Miss Powell said she was no longer in contact with him. Miss Powell said that she had gone to Jamaica to visit her aunt Gloria (her mother's sister) and her family. Miss Powell said that the property her brother had lived in before it was destroyed was family property, having been owned by her late father. Aunt Gloria lived about an hour and ten minutes away from the property. Aunt Gloria's house was already overcrowded; the claimant would not be able to live there.

3. I heard submissions from the representatives.

4. Mr Bramble said that as a result of my error of law decision it was clear that the claimant had to show she met the requirements of the post-9 July 2012 Rules. It was not in dispute that the claimant could not meet the partner Rules, not least because as an overstayer she could not fulfil the suitability requirements. As regards the private life requirements contained in paragraph 276ADE, she could only succeed if able to show there would be very significant obstacles to her reintegration in Jamaica. As regard her ties in the UK, it was difficult to see these as constituting family life ties within the meaning of Article 8, but he accepted they were important relationships within the private life context: she had her daughter and grandchild and also her partner and she had lived in the UK some eighteen years or so. He was prepared to accept as credible the evidence given today by the Miss Powell and the claimant regarding her son's recent flight to Haiti, but it still remained that the claimant had family in Jamaica and was in contact with them. As regards her relationship with her partner in the UK, the FtT judge recorded her partner's 'speculation' that he could possibly go to live with the claimant in Jamaica, but in any event their relationship could be maintained by him visiting and by electronic means. Her relationship with her partner had been formed at a time when her immigration status was precarious. The claimant has a poor immigration history.

5. Ms Iengar submitted that Mr Bramble had put the claimant's relationship with her family in Jamaica too highly. She had two sisters in Jamaica, both were unwell and she had not been to Jamaica for over eighteen years. It was a country from which she had left to escape an abusive relationship. Her son's flight to Haiti meant he and his family were not there to support the claimant. She had no significant family contacts in Jamaica and no-one in her family could accommodate or support her. The family property occupied until recently by her son had been destroyed and was likely only in any event to be co-owned by her as a three-way inheritance with her two sisters. The claimant was a 49 year old woman who had not obtained any qualifications in the UK, had not worked in Jamaica before she left and had poor prospects of finding work in Jamaica and she was at real risk of destitution. The claimant had surely demonstrated that there would be very significant obstacles to her reintegration.

6. As regards the claimant's circumstances in the context of Article 8 outside the Rules, Ms Iengar took issue with Mr Bramble seemingly questioning that the claimant enjoyed a family life within the means of Article 8(1) ECHR. She pointed out that one of the preserved findings of fact was that she enjoyed a "settled family life in the UK" ([38] of the FtT judge's decision). Whilst she did have a poor immigration history as a long-term overstayer, the SSHD had not taken any steps to remove her and, so far from any non-compliant behaviour, the claimant had taken repeated steps to try and regularise her stay. She had never been dependent on public funds. She was dependent on financial support from her partner. It was incorrect of Mr Bramble to refer to the judge's note that the claimant's partner was speculative about joining her in Jamaica if she was removed. His witness statement made clear at paragraph 11 that he could not leave the UK as he had a well-established restaurant business. He was the claimant's sole provider so if he had to abandon his business he would not be able to support her. It was unreasonable to expect the couple to maintain their relationship by visits and Skype. She had a very close relationship with her daughter and was involved in the care of her granddaughter on a daily basis.

My Assessment

7. There is no real dispute about the facts in this case. A number of findings of fact were expressly preserved by me at the error of law hearing and Mr Bramble has not challenged the oral evidence given before me at the resumed hearing. If my decision were dictated by sympathy I would allow the claimant's appeal, but it does not seem to me, applying the relevant legal criteria to the claimant's appeal, that she can succeed.

8. I should first of all clarify that in assessing the claimant's circumstances under the Immigration Rules and outside the Rules, my starting point is that the claimant enjoys ties in the UK that constitute family life within the meaning of Article 8(1) ECHR. That was an unchallenged finding of fact made by the FtT judge whose findings, as already noted, have been preserved.

The Paragraph 276ADE Issue

9. It is not in dispute that the claimant can only meet the requirements of paragraph 276ADE if able to show that there would be very significant obstacles to her integration there.

10. Cleary if considerable weight were to be attached to her ties of family and private life in the UK, that would go some way to establishing there were very significant obstacles because her removal from the UK would disrupt her existing relationships and her degree of integration in the UK. Her family life ties include her long-term relationship since 2000 with her partner, Mr Valentino, who is an Italian national. It is an unorthodox relationship in that he is married to another woman and only stays with the claimant three days a week, but it is not disputed that it is a close and loving relationship. In addition, the claimant has a close relationship with her adult daughter and her granddaughter, the latter who stays over with her on some nights; the claimant also does the child's "school run". There is a significant grandmother-granddaughter relationship.

11. Also to be weighed in the balance when considering the degree of obstacles to reintegration in Jamaica is the extent of the claimant's private life connections with the UK. Although she has been in the UK unlawfully and has not contributed to the economy by working, she has lived for over 18 years in this country, and, in addition to her relationship with her partner and daughter and granddaughter, she has a sister and other cousins.

12. At the same time, it is relevant when considering these family and private life connections that she has chosen to remain in the UK unlawfully and has either commenced or reinforced her relationships here at a time when she knew her immigration status was precarious. In addition, she has no significant health problems and at 49 she is not old or infirm.

13. As regards obstacles she would directly face in Jamaica, there is an important new development, the factual basis which is not disputed by Mr Bramble after hearing from the claimant's daughter, that the claimant can no longer look to her son or her son's wife and children for support and/or accommodation. He has fled to Haiti; the family property has been destroyed; his wife remains in Jamaica but has moved back with her own family. In addition, her two sisters have serious health problems and their accommodation is already crowded.

14. On the other hand, it is difficult to overlook the existence of a number of factors that will reduce the nature and extent of the obstacles she will face on return. Jamaica is her own country where she lived for some 30 years. Although she left when a young woman to get away from an abusive relationship, there is no suggestion that this poses any current threat to her well-being. She speaks the language and dialect and knows the culture well. Even though she may not be able to have the material support of family there in terms of accommodation and basic essentials, she does have family with whom she has stayed in contact and with whom she can resume or strengthen relationships. As regards her material needs, it is more than likely that her current partner (whose supports her financially presently) would see to it that she is supported financially and helped to find somewhere to live in Jamaica; indeed he has in the past helped one or two members of the claimant's family when he visited Jamaica.

15. The submissions of both parties very properly sought to consider the impact on the claimant and her other UK family members of her removal and its significance, both for the nature of the life she would face in Jamaica and for their own family needs. As regards her partner, it is clear that he has a great deal to lose financially if he were to move to Jamaica to be with the claimant - not just because of his business here, but because that business provides the basis for the support he gives to the claimant and to his wife and children: At the same time, it is part of the preserved facts that he was prepared to speculate about taking such a step and it was his own evidence that he no longer has a close relationship with his wife. It is therefore a matter of choice for him whether he wishes to rearrange his affairs so he can spend significant time with the claimant in Jamaica or get by otherwise with occasional visits and electronic means of communication. He is a married man who lives with his wife and has children by her whom he helps financially as well as emotionally. The fact that he has a close relationship with the claimant does not mean he is to be considered in the same way as a partner with no other family commitments.

16. It is also important to accord due weight to the fact that the claimant entered into her relationship with him when she knew her immigration status was precarious. Whether her relationship with him is classified as family life or private life, the precarious state of her own immigration status reduces the weight that can be accorded to it: see Rajendran (s117B - family life) [2016] UKUT 138 (IAC). I would add that whilst she has not hidden from the authorities during her stay in the UK, it remains that despite her repeated applications to stay being rejected each time and her being told each time that she was required to leave, each time she chose not to.

17. The claimant has a family relationship with her own daughter and grandchild and it can be assumed that she is an important figure in the life of her grandchild, but it is not suggested that her grandchild lacks proper care from her mother or that the claimant's daughter supports the claimant.

18. Having considered the factors pertaining to the assessment of the extent of the obstacles to the claimant's integration in Jamaica, I conclude that they do not amount to very significant obstacles. In particular I do not accept that she will face destitution or lack any kind of family support there. I do not accept that the relative strength of her relationships in the UK as assessed above suffice to make the obstacles she will face in Jamaica very significant.

19. Accordingly, I conclude that the claimant does not meet the requirements of the Immigration Rules.

20. I do not consider it necessary to conduct a detailed separate assessment of the claimant's Article 8 circumstances outside the Rules. The fact that she does not qualify under the Rules is a significant indication that her continued stay is not in the public interest. The considerations that must be taken into account pursuant to Section 117A-D of the NIAA 2002 do not add to the balance of factors that I have already considered in the context of paragraph 276ADE. If anything, they add to the weight of the factors weighing against her in that even though she has good English, she is not financially dependent and she formed her private life relationships when her immigration status was precarious. She is someone who has lived in the UK as an overstayer for a lengthy period and has only been able to accumulate the period of residence she has by deliberately ignoring instructions given to her that she must leave. I do not consider that she has shown that her Article 8 circumstances are exceptional or compelling.

21. For all the above reasons I conclude that the decision I should re-make is to dismiss the claimant's appeal against the decision of the SSHD to refuse her leave to remain and to remove her.

22. To summarise:

The FtT judge has previously been found to have materially erred in law and his decision has been set aside.

The decision I re-make is to dismiss the claimant's appeal.

No anonymity direction is made.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal