Tribunal decisions

The decision

UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Appeal No. IA/34994/2013

THE IMMIGRATION ACTS

Heard at: Birmingham
Decision Promulgated
On: 4 September 2014
On: 5 September 2014

Before

Upper Tribunal Judge Pitt

Between

Secretary of State for the Home Department
Appellant
and

Marcia Rutendo Muindisi
Claimant

Representation:
For the Appellant: Mr Mills, Senior Home Office Presenting Officer
For the Respondent: Mr Nwaiwu of RBM Solicitors

DETERMINATION AND REASONS
1. The claimant is a citizen of Zimbabwe and was born on 24 September 1987.
2. For the purposes of this decision I refer to the Secretary of State as the respondent, her position before the First-tier Tribunal.
3. This is the Secretary of State's appeal against the determination promulgated on 9 June 2014 of First-tier Tribunal Judge Hawden-Beal which allowed the appeal under Article 8 ECHR brought against the respondent's decision of 6 August 2013 to refuse leave.
4. The respondent's summary at paragraph a) of the grounds of the reasons why the First-tier Tribunal judge found the decision to be a disproportionate interference with the claimant's family and private life is inaccurate. The appellant was found at [22] to have a "strong" family life with her relatives in the UK and was still treated as a "child" of the family notwithstanding her age. She also supported the family in a substantive way, both financially and practically. Her father could only work part-time as he had health problems so her financial support was particularly important to the family in the UK. The younger children in the family were suffering because of the uncertainty in relation to the appellant's immigration status. She had limited contact with more distant relatives in Zimbabwe. She had been in the UK lawfully for 9 years by the time of the hearing before the First-tier Tribunal. These findings are not challenged. The appeal was not allowed because the Immigration Rules had changed or the appellant had a legitimate expectation of further leave in line with her family members, as might be thought from paragraph a) of the grounds.
5. Paragraph b) of the grounds can have no merit where it relies on the misstatement in paragraph a) of the judge's reasons for finding the decision disproportionate.
6. In my judgement, paragraph c) of the grounds is merely a disagreement with the decision that was clearly open to the First-tier Tribunal, that the factors identified above were sufficient to show that the decision was disproportionate.
7. The case of MM and Others v SSHD [2013] EWHC 1900 (Admin) reaffirms that the correct approach in an Article 8 assessment is that set down in Razgar [2004] UKHL 27 and Huang [2007] UKHL 11 and indicates that the "arguably good grounds test" arising from Gulshan (Article 8 - new rules - correct approach) [2013] UKUT 00640 and Nagre v SSHD [2013] EWHC 720 is not good law. It did not appear to me that paragraph d) of the grounds had force, therefore. In any event, as above, the First-tier Tribunal judge here clearly considered the particular circumstances of this appellant and her family to be "compelling" having made a specific and correct self-direction to that effect at [21] and her reasons for so finding, as above, not being capable of being characterised as perverse.
8. For these reasons, I did not find that the grounds of appeal had merit.
DECISION
9. The decision of the First-tier Tribunal does not contain an error on a point of law and shall stand.

Signed: Date: 4 September 2014
Upper Tribunal Judge Pitt