Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/38647/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 June 2016
On 27 September 2016

Before

upper tribunal judge conway

Between

Mr NOEL EVERTON MURRAY
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Mohammed
For the Respondent: Mr Walker

DECISION AND REASONS
Introduction
1. The Appellant is a citizen of Jamaica born in 1959. He appeals against a decision of the Secretary of State made on 22 September 2014 to refuse his application for indefinite leave to remain outside the Immigration Rules on the basis of his long residence and his long term relationship with a British citizen.
2. His immigration history is that he entered the UK on 3 October 2000 as a visitor for six months. He overstayed. His application for ILR was made on 8 May 2014. It was refused under paragraph 322(1) of the Rules.
3. He appealed. Following a hearing at Taylor House on 23 April 2015 FtT Judge Wellesley-Cole dismissed the appeal.
4. She noted the issues to be whether the Appellant satisfied the requirements for leave to remain as a partner under Appendix FM or alternatively whether there were exceptional circumstances under Article 8 of ECHR. On the former, the issues identified were whether the Appellant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen and there are insurmountable obstacles to family life with that partner continuing outside the UK (paragraph A276B and R-LTR.1.1(a)(iv)). The FtT's findings are at paragraph 16 ff. Having heard evidence from the Appellant and his claimed partner Ms [H], she found there to be discrepancies in their accounts. Also, a lack of documentary evidence in support of their claim to have been living together in a genuine and subsisting relationship.
5. The FtT also found that there would be no insurmountable obstacles to family life being continued outside the UK
6. The Appellant sought permission to appeal which was refused. On reapplication to the Upper Tribunal permission was granted on 2 September 2015.
Error of Law
7. Following the error of law hearing I issued the following decision:
'?
9. At the error of law hearing before me Mr Mohammad's main point was that the FtT's analysis and findings in respect of whether the Appellant and Ms [H] are in a genuine and subsisting relationship was inadequate. In particular the fact that the Appellant had lived at various addresses did not detract from the genuineness of the relationship. He has satisfactorily explained his history. He had been itinerant.
10. Noting comments made by the judge who granted permission, Mr Mohammad submitted that there were further issues with the decision in particular why witness evidence was discounted as "self serving", and how an entry clearance application might succeed as Ms [H] is now working when findings had been made that they are not in a genuine relationship. Such did nothing for the clarity of the FtT's reasoning.
11. Mrs Sreeraman's position was that it was clear that the FtT had considered the evidence in detail. She had given adequate reasons for her findings that the relationship was not genuine. Such findings were not irrational. She had then gone on to conclude that no freestanding examination under Article 8 was necessary and had given adequate reasons for reaching that conclusion.
12. In considering this matter the first material issue is whether the FtT showed inadequate reasoning in concluding that there was no genuine and subsisting relationship. She took three points.
13. First, a discrepancy between the Appellant who said they had met eleven years before and been together for eight years, and Ms [H] who said she had known him for eight years but could not recall when he moved in. The FtT considered that there would have been "clear recollection of such an important point in their relationship" [16]
14. Second, the judge was concerned by the "numerous different addresses" the Appellant had resided at. These included "Craven Park, a cousin's address, and also the fact that in 2012 it was a different address on his NHS prescription when he said he was visiting her and they were not living together then which is at odds with his contention that they had been living at her address together for eight years". Further, a December 2008 patient registration status gave his address as Craven Park Road. It was "not addressed to Ms [H]'s residence suggesting they were not living together." [17]
15. Third, there was only one documentary item, a British Gas bill addressed to Ms [H] dated January 2014 with the same address on his application.
16. I agree with Mr Mohammed that certain comments by the judge on the issue of the relationship lack clarity. Thus, it is unclear at [17] why witness evidence was discounted as "self serving" also it is not explained why the judge found at [18] that the Appellant and Ms [H] were "undermined" during the course of cross-examination.
17. However in my judgment, the conclusion that there was no genuine and subsisting relationship was open to her for the reasons she gave. Her analysis is adequate.
18. I agree with the comment that the judge's handling of the other limb of EX.1 (insurmountable obstacles to family life continuing outside the UK) is unsatisfactory. She does not appear to have given it any significant analysis. Further, her comment that an entry clearance application might succeed as the partner is now working is at odds with her finding that the relationship is not genuine. However, as the insurmountable obstacles requirement is in addition to the genuine and subsisting relationship requirement any errors in that regard are not material.
19. The main problem with the decision is the judge's approach to private life. She referred to paragraph 276ADE at [19] but did not give it consideration. Specifically, she gave no regard to 276ADE (1)(vi) and whether there would be very significant obstacles to the Appellant's integration in Jamaica. In that regard she made no findings and there was no analysis. In failing to apply or properly consider the law as set out in the Rules the judge materially erred.
20. The decision is set aside to the extent that the appeal be reheard in the Upper Tribunal by myself, on the issue of private life. The decision on family life stands.'
Evidence at resumed hearing
8. The case came before me at the resumed hearing on 22 June 2016.
9. For that hearing I had before me a bundle dated 8 June 2016 containing several witness statements. Also, two skeleton arguments (19 June and 22 June 2016). There was also the bundle that was before the FtT.
10. I heard brief oral evidence from Mr Murray, the Appellant. He adopted his two statements (14 April 2015 and 6 June 2016).
11. In cross-examination he said he had been in a relationship with Ms [H] for more than 8 years and they have lived together for 8 years. Family members have supported him financially since 2000.
12. Asked how he had filled his time as an overstayer since 2000 he said he had helped with the children and cleaned the church and visited social clubs. Referred to NHS records lodged by him, he was asked how he had been able to access NHS treatment. He said he went to the GP and signed on.
13. I also heard briefly from Mr Richard Murray. He adopted his statement (undated). He is a cousin of the Appellant.
14. In cross-examination he said he had lived with the Appellant for four years. He knew he was an overstayer but did not do anything about it. It did not come up much in conversation. He could not recollect when the Appellant started living with Ms [H]. He said that when he moved to another address, Weald Lane, in 2004 the Appellant did not go with him. He thought that it was not long after that the Appellant started the relationship with Ms [H]. They have been together a long time. Asked how if the Appellant has not been working since 2000 he was able to get by financially, he said the Appellant and Ms [H] work things out between them.
15. In brief submissions Mr Walker sought to rely on the refusal letter. However, he did appear to accept that there was now some evidence of current family life which needed to be considered as an aspect of the Appellant's private life, namely Ms [H] and relatives. That apart he left it for me.
16. Mr Mohammad simply referred me to the two skeleton arguments. He asked me to look at the matter in the round in considering paragraph 276ADE (1)(vi) and Article 8. He submitted that it was not fatal that there had been a long delay before the Appellant sought to legitimise his status.

Conclusions
17. In considering this matter the starting point is paragraph 276ADE(1)(vi). The issue is whether there would be very significant obstacles to the Appellant's integration into the country to which he would have to go, in this case Jamaica if required to leave the UK.
18. It is not in dispute that the Appellant has been in the UK since late 2000 thus nearly sixteen years. He claimed to have a genuine and subsisting relationship with Ms [H] stretching back some eight years as well as having established a private life in the UK which deserved to be respected by the Respondent. As indicated the claim that there was a genuine and subsisting relationship was not accepted by the FtT Judge, a conclusion which on the evidence she was entitled to reach.
19. Some very limited documentary evidence (utility bills) was lodged for the current hearing. They are in joint names for an address in Jamaica Street, London E1 and are dated 2016. Such gives some documentary support for the claim that the Appellant and Ms [H] are at present in a relationship. Such appeared to be accepted by Mr Walker for the Respondent. However, the documentary evidence before me does not support the claim that they have been in a relationship for anything like as long as is claimed. Mr Richard Murray's oral evidence on that matter was entirely vague and does not assist. Nor do similar general assertions contained in several other statements by relatives. The onus is on the Appellant. I find on the evidence before me that the relationship is much more recent and I am not satisfied it is even two years. Nonetheless the fact that there is at present a relationship is an aspect of his private life that must be considered.
20. As for whatever other private life the Appellant may have acquired during his time here there was a striking lack of evidence. The thrust of Mr Richard Murray's evidence and that of the other witnesses who gave written statements, and almost all of whom are relatives, is that the Appellant has been strongly involved in the local community, e.g., 'a strong bond with his church and is also a keen volunteer in community service' (Mr Noel [H]). Such claims are almost entirely unsupported by independent evidence. Apart from a three line note from a church (2015) saying he has attended for years, I see nothing indicating wider community involvement, evidence which one would reasonably have thought would have been easily available.
21. My conclusion from the evidence is that apart from the fact that the Appellant has been in the UK for nearly sixteen years, which is clearly a lengthy period, and what I find to be his fairly recently started relationship with Ms [H] and family members there is a dearth of evidence of significant private life. I note also the evidence that the Appellant does not and has never had a paying job. He also appears to own no property or any other significant assets.
22. As indicated the issue under paragraph 276ADE(1)(vi) is whether there are very significant obstacles to his integration into his home country, Jamaica.
23. The Appellant is in his late fifties. Although he has been in the UK for nearly sixteen years, more than two thirds of his life has been spent in Jamaica. It is claimed that he has no family in Jamaica. I do not believe him. As the Respondent noted in the refusal letter he said in his application form (A10) that he still had family ties in Jamaica. Even if he has no family he is a man still of relatively young age. There is nothing to indicate that he is in anything other than good health. There would on return be no language difficulties.
24. If the evidence of the Appellant and witnesses is true he has been able to get by financially through the kindness of family here. He has never worked. I do not accept the submission in the skeleton argument that if returned he would be destitute. There seems no reason why if necessary they could not continue to give him such support on return. I note further that a witness (Peter Matthews) says in his statement that the Appellant is an 'experienced furniture maker and a very good builder' who he believes 'will not have any difficulties in finding employment'. While the witness evidently means in the UK, I see no reason why such would also not apply on return to Jamaica.
25. I now consider the issue of his relationship with Ms [H]. I have found that whilst there is a relationship it has not been for anything like as long as claimed. As indicated, on the documentary evidence before me it does not extend even two years.
26. Ms [H] is a woman of Jamaican origin who became a British citizen in 1985. She entered the relationship in the full knowledge that he was an overstayer. Her family situation is that she has a daughter in her thirties and grandchildren. It may well be that she has a good relationship with her daughter and grandchildren. It may also be that the Appellant has a relationship with them.
27. However, if the Appellant and Ms [H] wish the relationship to continue I see no compelling reasons why such could not be in Jamaica. Ms [H] is a woman who was born in Jamaica in 1953 albeit she is a British citizen (from 1985) who has lived many years here. She appears to be in reasonable health. No up to date medical evidence was put before me suggesting otherwise. Like the Appellant she would have no language difficulties.
28. It appears that she does not own property here, rather, the Jamaica Street house is rented (A4). She is in work and clearly has skills. I see no obvious reason why such skills would not be transferable to Jamaica so that she and the Appellant could work to support themselves. It has already been noted that despite it being claimed that the Appellant has never worked in the UK he and Ms [H] have got by financially. There seems no reason why they would not be able to do so as a couple in Jamaica.
29. Were they to go to Jamaica it is likely that Ms [H] and the Appellant would have less face-to-face contact with Ms [H]'s family and with his own adult relatives here. They have their own lives to lead. I also see no reason why regular contact could not be continued between them and respective family, adult children and grand children in the UK by visits and normal methods of communication.
30. In summary, for the reasons given I conclude that the Appellant has not shown that there would be very significant obstacles to his integration into Jamaica either as an individual or with Ms [H].
31. I proceed to consider whether in this case it is necessary to consider the Appellant's right to a private life outside the Immigration Rules. The case of SS (Congo) [2015] EWCA Civ 387 clarified that there must be something 'compelling' about a claim for it to succeed upon Article 8 grounds outside the Immigration Rules.
32. Further guidance was offered in the case of R (on the application of Sunassee) v UTIAC [2015] EWHC 1604 (Admin) at [36] which states 'Whether the circumstances are described as "compelling" or "exceptional" is not a matter of substance. They must be relevant, weighty and not fully provided for within the Immigration Rules'.
33. In order for leave to remain to be granted outside the provisions of the Immigration Rules, there need to be compelling or exceptional circumstances not sufficiently recognised under the Rules that outweigh the public interest in removal. The fact that the decision under the Rules may result in some hardship and inconvenience for the Appellant is not of itself sufficient. It is necessary to show that there are circumstances in which the refusal would result in unjustifiably harsh consequences for the Appellant such that the refusal of the application would not be proportionate.
34. In that regard the Appellant's stay in the UK was always temporary and precarious and any private life acquired in the UK in the full knowledge that his stay here after the six months lawful stay in 2000/01 has been unlawful, should be given less weight when balanced against the facts in favour of removal. It is a feature of the witness statements that emphasis is placed on the Appellant during his time here having been of good character (other presumably than remaining unlawfully). Such does nothing to assist his case. As the Tribunal said in Nasim and others (Article 8) [2014] UKUT 00025 'A person's human rights are not enhanced by not committing criminal offences or not relying on public funds.' [head note]
35. Looking at the evidence in the round I see nothing to indicate that there are compelling or exceptional circumstances which require this matter to be considered outside the Rules.
36. Even if I am wrong in that regard looking at the totality of the evidence and considering the public interest factors in s117B of the Nationality, Immigration and Asylum Act 2002 I see no sufficient basis to find that the circumstances of the Appellant individually and in terms of his relationship with his partner and the length of stay outweigh the Respondent's legitimate interest in removing him. Although he speaks English, he is not financially independent and, as indicated, his relationship with Ms [H] and any private life more widely was established when he was in the UK unlawfully. As such it should be given little weight (s117 (4)).
37. I would add that if Ms [H] does not wish to return to Jamaica with the Appellant it would be open to the Appellant to return alone and to seek entry clearance under the Rules. I do not find that it would be disproportionate to require him to do so. In this case, it could not be said that an application for entry clearance upon return is bound to succeed so that it would be a mere bureaucratic interference to require him to return to Jamaica. He has hitherto failed to establish that he has been in a relationship for at least two years. Also the financial circumstances of Ms [H] have not been set out in detail. I see no compelling reasons why he should be allowed to 'jump the queue' by circumventing the requirements of the Rules through a grant of leave outside the Rules.
38. The appeal fails.
Notice of Decision
The decision of the First tier Tribunal is set aside and remade as follows:
The appeal is dismissed under the Immigration Rules.
The appeal is dismissed under Article 8.
No anonymity direction is made.

Signed Date

Upper Tribunal Judge Conway 27 September 2016