Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/34643/2014

THE IMMIGRATION ACTS

Heard at Birmingham Employment Tribunal
Decision & Reasons promulgated
on 18 January 2017
on 17 February 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

DAVID LLOYD HENRY
(Anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Sharif, a solicitor with Fountain Solicitors.
For the Respondent: Ms Aboni Senior Home Office Presenting Officer.

DECISION AND REASONS

1. This is an appeal against a decision dated 22 October 2015 by First-tier Tribunal Judge Heatherington ('the Judge') in which the appellant's appeal against the refusal of his application for further leave to remain in the United Kingdom on human rights grounds was dismissed under both the Immigration Rules and Article 8 ECHR.
2. The Judge sets out the decision under appeal, what has to be decided, and the cases advanced by the respective parties [1-23]. The core findings leading to the dismissal of the appeal are set out at [28 - 31] in the following terms:

28. The appellant does not qualify for leave to remain in the United Kingdom by virtue of Rule E - LTRP.1.2 of Appendix FM of the Immigration Rules. He has not lived with Mrs Lamey for two years. Mrs Lamey does not meet the definition of a partner.

29. The appellant and Mrs Lamey sought to claim that Rebecca Lamey is unavailable to give assistance to her mother, Mrs Lamey because she works and she is out in the evenings. Rebecca's evidence is that she does go out, but not every evening. Furthermore, Mrs Lamey is able to access NHS healthcare from his GP and, if she needs it, she can seek services from her local authority social services department including homecare and help with cleaning, shopping, disability equipment and home adaptations. A local authority must carry out an assessment whether or not a person is eligible for funded care and support, to establish needs and the level and type of care and support required to meet these needs. Mrs Lamey may be eligible for funded care and support. She is certainly entitled to and she receives Employment and Support Allowance and Disability Living Allowance which is a passport to other benefits. I do not accept that Mrs Lamey is exceptionally dependent on the appellant.

30. The appellant wants to remain in the United Kingdom. The reality is that he has lawfully lived in the United Kingdom for less than four years. There is no evidence that he will not be able to receive treatment for any medical conditions on his return to Jamaica. Any interference with the appellant's right to respect for his private and family life accords with the law. A balance must be struck between the right to respect for the appellant's private and family life and the legitimate aims of preventing burdens on the taxpayer and protecting (among other things) the economic well-being of the UK; and the protection of the rights and freedoms of others. Courts and Tribunal's must have regard for those requirements. If applicants do not qualify for leave under the Rules, or outside the Rules on a genuinely exceptional basis, they will not receive any form of leave. The United Kingdom cannot offer a health service to the world. The appellant has no income. The notion that the appellant can maintain himself in the United Kingdom, without recourse to benefits is unlikely.

31. Finally, I find that the appellant does not qualify for leave to remain in the United Kingdom on a genuinely exceptional basis either under or outside the Immigration Rules. I find that there are no genuine concerns about the appellant returning to Jamaica so that his rights under article 8 of the European Convention of Human Rights would be violated. The appellant is not entitled to form of leave to remain and he must leave the United Kingdom.

3. The appellant sought permission to appeal on the grounds the Judge failed to apply the correct test, applying a test of "exceptionality" at paragraph 29 of the determination which is said to be contrary to the guidance issued by the Court of Appeal in SS (Congo) [2015] EWCA Civ 387 which refers to the two different tests applicable, depending on the nature of the appellant's status, namely 'exceptionality' or 'compelling circumstances'. It is argued that the Judge should have applied the 'compelling circumstances' test. The grounds also assert that the Judge's reasoning is inadequate and that the Judge failed to have regard to section 117B of the 2002 Act.
4. Permission to appeal was granted by another judge of the First-tier Tribunal in the following terms:

"In paragraph 29 of his decision, the Judge concluded that the appellant's partner was not exceptionally (my emphasis) dependent on him. It is arguable that the Judge has imported a test of exceptionality in his decision, where none exists. It is also arguable that he has failed to provide adequate reasons why the Appellant's return to Jamaica would not amount to a disproportionate interference. There is no merit, however, in ground 3. Although the Judge appears not to have given any specific consideration to the public interest criteria in section 117B, the fact that the appellant speaks English does not entitle him to a positive grant of leave, following the decision in AM (S117B) Malawi [2015] UKUT 260 (IAC)."

5. Permission was granted on grounds 1 and 2, relating to a failure to apply the correct test and inadequate reasoning, but not ground 3. At the outset of the hearing it was mentioned to the advocates that it did not appear that the appellant had been sent the correct notification in circumstances where only a partial grant of permission had been made. The Tribunal is grateful to Mr Sharif for the pragmatic view he adopted, namely that ground 3 had no realistic prospects of success in any event (which is correct), as a result of which ground 3 was withdrawn, leaving the Upper Tribunal only being required to consider the two grounds on which permission was granted.

Discussion

6. At [29] of SS (Congo) the Court of Appeal found:

"It is clear, therefore, that it cannot be maintained as a general proposition that LTR or LTE outside the Immigration Rules should only be granted in exceptional cases. However, in certain specific contexts, a proper application of Article 8 may itself make it clear that the legal test for grant of LTR or LTE outside the Rules should indeed be a test of exceptionality. This has now been identified to be the case, on the basis of the constant jurisprudence of the ECtHR itself, in relation to applications for LTR outside the Rules on the basis of family life (where no children are involved) established in the United Kingdom at a time when the presence of one or other of the partners was known to be precarious: see Nagre, paras. [38]-[43], approved by this court in MF (Nigeria) at [41]-[42]."

7. At [33] of SS (Congo) the Court of Appeal found:

33.In our judgment, even though a test of exceptionality does not apply in every case falling within the scope of Appendix FM, it is accurate to say that the general position outside the sorts of special contexts referred to above is that compelling circumstances would need to be identified to support a claim for grant of LTR outside the new Rules in Appendix FM. In our view, that is a formulation which is not as strict as a test of exceptionality or a requirement of "very compelling reasons" (as referred to in MF (Nigeria) in the context of the Rules applicable to foreign criminals), but which gives appropriate weight to the focused consideration of public interest factors as finds expression in the Secretary of State's formulation of the new Rules in Appendix FM. It also reflects the formulation in Nagre at para. [29], which has been tested and has survived scrutiny in this court: see, e.g., Haleemudeen at [44], per Beatson LJ.

8. The Judge was considering the matter outside the Rules, as it is not disputed that the appellant was unable to satisfy the requirements of Appendix FM. It is important when considering the actual findings made outside the Rules to read the decision as a whole.
9. The combined definitions of the words 'compelling' and 'circumstances' produces an interesting result if one takes compelling to mean 'in a powerful way, irresistible, strong, persuasive, to not be able to resist, convincing, overwhelming' and circumstance as meaning 'a condition or fact the affects a situation, an incident or occurrence'. If these definitions are combined compelling circumstance means, 'a convincing or strongly persuasive incident or occurrence'. The Judge was clearly considering the evidence with a view to identifying whether any circumstances had been identified that would amount to convincing or strongly persuasive elements in support of the appellant's case sufficient to override the public interest consideration.
10. Mr Sharif was asked to identify the evidence of such elements that was made available to the Judge, to which he referred to the significant role the appellant played in providing care and meeting the emotional well-being of Mrs Lamey. It was submitted that the Judge had considered the benefits that Mrs Lamey may receive but not the impact upon her of the appellant's removal. Whilst this may be an understandable submission, Mr Sharif also had to accept, in response to a question from the Tribunal, that there was no evidence provided to the Judge to explain what the impact of the appellant's removal would be or show the existence of compelling circumstances arising for the same. It may be that the loss of the relationship and of the assistance provided by the appellant may have a substantial impact, but in the absence of any evidence in relation to this matter it cannot be said that the Judge erred in law in failing to consider this element of the case anymore than he did.
11. The Judge considered the availability of financial support for Mrs Lamey together with her entitlement to assistance from the statutory services. The Judge was arguably correct in the assessment of the availability of such help in [29], especially in light of the lack of any evidence to show that the support that Mrs Lamey would receive from others, in the event of the appellant's removal, would not be sufficient to meet her needs.
12. This is, in reality, a challenge based upon form rather then substance. The Judge clearly considered the evidence made available with the required degree of anxious scrutiny and has given adequate reasons, based upon the identified limitations in such evidence, for the reasons given. It was found that the appellant was unable to succeed under the Rules and that the Secretary of State had discharged the burden of proof upon her to show that the decision was proportionate to the legitimate aim relied upon. No arguable legal error material to the decision to dismiss the appeal has been made out. The decision must stand.

Decision

13. There is no material error of law in the First-tier Tribunal Judge's decision. The determination shall stand.

Anonymity.

14. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed??????????????????.
Upper Tribunal Judge Hanson
Dated the 16th of February 2017