Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/38988/2014

THE IMMIGRATION ACTS

Heard at : IAC Birmingham
Decision Promulgated
On : 31 January 2017
On: 02 February 2017

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

shanice melisa nesbeth
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Sarwar, instructed by Bassi Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Jamaica, born on 18 January 1996. She has been given permission to appeal against the decision of First-tier Tribunal Judge Raikes, dismissing her appeal against the respondent's decision to refuse her application for leave to remain on Article 8 private life grounds.

2. The appellant entered the United Kingdom on 8 February 2014 with leave to enter as a child visitor, valid until 13 July 2014, and made her application for leave to remain on 10 July 2014.

3. The basis of the appellant's application, as set out in the covering letter to the application form FLR (FP), was that she wished to remain in the UK with her mother as her grandparents, with whom she had been living in Jamaica, could no longer care for her. The application was made on the basis of paragraph 276ADE(1)(vi) and Article 8 outside the immigration rules. In an accompanying statement from the appellant's mother, Pamella White, it was said that she had come to the UK when the appellant was six years of age, in order to study and improve her future prospects, and had left the appellant with her parents (the appellant's grandparents) in Jamaica, although retaining parental responsibility for her and making important decisions in her life from the UK. The appellant's mother said that her own mother was ill and could no longer care for the appellant. Since she had two British daughters in the UK who had weekly contact with their father, they could not relocate to Jamaica to be with the appellant and therefore needed the appellant to remain in the UK. It was claimed in the appellant's application that she did not retain any ties to Jamaica, having no contact with her father and no family members other than her grandparents who were unable and unwilling to care for her and wished to travel, and that she would be vulnerable to criminal gangs if she had to return there without any support network.

4. The respondent refused the appellant's application in a decision dated 18 September 2014. The respondent did not accept that the appellant had demonstrated a lack of ties to Jamaica and considered that she failed to meet the requirements of paragraph 276ADE(1)(vi). Neither did the respondent accept that there were any exceptional circumstances justifying a grant of leave outside the immigration rules. It was noted that the appellant's mother had come to the UK in 2002 and that her passport showed no travel to Jamaica since then. The respondent considered that the application had been made simply to circumvent the immigration rules.

5. The appellant appealed against that decision. Her appeal was heard on 17 December 2014 by First-tier Tribunal Judge Raikes. The judge heard oral evidence from the appellant and her mother. It was claimed by the appellant that she had become very close to her half-sisters and had taken on the role of their primary carer as her mother worked unsociable hours. She had nothing to return to in Jamaica and feared becoming homeless and an easy target for criminals and gangs if she had to return there. It was claimed that the appellant's intention, on visiting the UK, had been to return to Jamaica and to return to her sixth form studies, but her grandmother's ill-health and her grandparents' subsequent decision that they could no longer care for her, had led to her applying for leave to remain in the UK. The judge found the evidence of the appellant and her mother to be inconsistent and implausible, in particular in regard to the appellant's claimed sixth form studies in Jamaica and the timing of her grandparents' contact informing her of their inability to continue caring for her, and did not accept that there had ever been any intention for the appellant to return to Jamaica. The judge did not accept that the appellant could meet the requirements in paragraph 276ADE and considered that her removal would not be disproportionate under Article 8. She dismissed the appeal on all grounds.

6. The appellant sought permission to appeal to the Upper Tribunal on two grounds: firstly, that the judge had erred by applying the "no ties" test in paragraph 276ADE(vi), whereas the immigration rules had changed prior to the appeal hearing so that the relevant test was "very significant obstacles to integration". The judge had therefore applied the wrong test. Secondly, it was irrational for the judge, if accepting that the appellant provided care for her half-siblings, to find that family life could continue outside the UK.

7. Permission to appeal was granted on 20 February 2015 on both grounds, but with particular regard to the first ground.

8. The appellant's appeal initially came before Deputy Upper Tribunal Judge O'Ryan but unfortunately no written decision was issued, although it was accepted that he had dismissed the appeal. The appellant did not consent to there being no written reasons for the decision. In the circumstances, and in light of Mr Mills' agreement, I set aside Judge O'Ryan's decision to dismiss the appeal and proceeded to hear submissions with a view to re-making the decision on the error of law.

9. Having heard submissions from both parties, I advised them that I was upholding Judge Raikes' decision. My reasons for so doing are as follows.

Consideration and Findings

10. There is no dispute that Judge Raikes applied the wrong version of paragraph 276ADE(1)(vi), and considered the "no ties" test rather than the test of "very significant obstacles to integration". However I do not agree with Mr Sarwar that that error was a material one since, as submitted by Mr Mills, not only is the newer test a more stringent one than the "no ties" test but also it is plain that the judge in any event gave consideration to all matters relevant to the substance of the "very significant obstacles to integration" test. Mr Sarwar did not dispute that the appellant retained ties to Jamaica and that the judge was entitled to conclude as such. In addition, at [34], the judge found that the appellant was capable of looking after herself in Jamaica, having cared for her two half-siblings and being a well-educated and articulate adult, and she did not in any event accept that her grandparents would refuse to provide her with support. At [37] the judge noted that the appellant had spent her entire life in Jamaica until coming to the UK as a visitor ten months prior to the hearing and took account of the fact that her mother was able to financially support her in Jamaica. At [42] the judge concluded that the appellant would be at no risk in Jamaica. Accordingly the judge considered all relevant matters and effectively applied the correct test. It was clear, on the evidence before the judge, and on the judge's findings, that the appellant failed to demonstrate very significant obstacles to integration in Jamaica and the judge was accordingly fully entitled to conclude that the criteria in paragraph 276ADE(1) could not be met. I therefore find no merit in the first ground.

11. Although permission was only reluctantly granted in relation to the second ground, Mr Sarwar submitted that there was particular merit in that ground. He submitted that the judge had effectively accepted that the appellant had taken on the role of carer for her two half-siblings, and if she had not, then she had failed to provide any reasons for so concluding. On the basis that she had accepted that matter, he submitted that the judge's findings at [46], that family life could continue outside the UK, was irrational, as it appeared to be a suggestion that the two British children could be expected to leave the UK in order for family life to be maintained. However I agree with Mr Mills that that was not in fact what the judge meant at [46], and that what she actually meant was simply that family life connections could be maintained from outside the UK. It is clear that the judge gave consideration to the best interests of the appellant's two half-siblings and to the impact on them of the appellant's departure. That was a matter considered at [46], where the judge considered that it was significant to the girls' best interests that their mother and father remained in the UK with them. When weighing all matters up at [47] the judge balanced the impact of the appellant's departure on her half-sisters against other relevant factors, namely the temporary nature of the appellant's leave and her lack of basis of stay in the UK, as well as the matters she had already considered, which included her inability to meet the requirements of the immigration rules, the short period of time spent in the UK, the lack of previous contact and visits and the circumstances in which the appellant had come to the UK. In view of all those adverse factors the judge was fully entitled to conclude that the appellant's removal was not disproportionate and that there would be no breach of Article 8.

12. For all of these reasons I uphold the judge's decision and find no merit in the grounds. The decision is based upon a full and detailed assessment of all the evidence and is supported by cogently reasoned and sustainable findings. The conclusions that the judge reached were entirely open to her on the evidence before her. There are no material errors of law in her decision.

DECISION

13. The making of the decision of the First-tier Tribunal did not involve an error on a point of law requiring it to be set aside. The decision to dismiss the appeal stands.

Signed
Upper Tribunal Judge Kebede Dated: