Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/39738/2014
IA/39744/2014
IA/39745/2014
THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision and Reasons Promulgated
On 8 December 2015
On 20 January 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

SECRETARY OF STATE FOR the HOME DEPARTMENT
Appellant
and

munir noormohamed jokhia (1)
anita munir jokhia (2)
arshad munir jokhia (3)
(no anonymity order MADE)
Respondents

Representation:

For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: Mr R O'Ryan instructed by Duhra Solicitors,

DECISION AND REASONS

1. The appellant Secretary of State appeals against the decision and reasons statement of First-tier Tribunal Judge Bell that was promulgated on 19 January 2015.
2. The respondents are a family group, the first two being married to each other and the parents of the third respondent. Judge Bell allowed their appeals against the immigration decisions of 26 September 2014, to remove them from the UK as overstayers, because she found there would be very significant obstacles to their integration into Kenya. In addition, Judge Bell found that the third appellant was over 18 and under 25 and by the date of hearing had spent more than half his life in the UK.
3. In reaching these conclusions, Judge Bell applied paragraphs 276ADE(1)(v) and (vi) as they were in force at the date of hearing. Because she found the appellants succeeded under the provisions of the immigration rules, she did not need to consider article 8 directly and allowed the appeals because the requirements of the immigration rules were met.
4. From what I have already recorded, it will be evident that Judge Bell considered the appellants' circumstances and the law as they were at the date of hearing and not when the applications were made. The applications, which were human rights claims, were made on 18 July 2013. Their claims were initially refused on 13 August 2013 but without a right of appeal. After further legal proceedings, the Home Office consented to issue fresh decisions (those of 26 September 2014) against which there was a right of appeal and which began these proceedings.
5. The appellant Secretary of State's grounds of appeal to the Upper Tribunal initially focus on whether Judge Bell erred in her application of the law and facts as they were at the date of hearing when considering whether the provisions of paragraph 276ADE of the immigration rules was met. The Secretary of State argues that the requirements of paragraph 276ADE meant that they were restricted to the situation as at the date of application.
6. I address this issue before considering the other grounds because it is easily resolved. As I indicated at the end of the hearing, I am satisfied that Judge Bell erred in law by relying on paragraph 400 of the immigration rules. However, this error cannot be material because the very concern the judge raised is present in paragraph 276A0 of the rules. To understand why there is a legal error but no material error it is necessary to examine the provisions of these paragraphs as at the date of the decision appealed against and at the date the appeals were heard by Judge Bell.
7. The date of decision was 26 September 2014 and at that date the immigration rules provided.
276A0. For the purposes of paragraph 276ADE the requirement to make a valid application will not apply when the Article 8 claim is raised:
(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;
(ii) where a migrant is in immigration detention;
(iii) where removal directions have been set pending an imminent removal;
(iv) in an appeal; or
(v) in response to a (one stop) notice issued under section 120 of the Nationality, Immigration and Asylum Act 2002.

400. Where a person claims that their removal under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971, section 10 of the Immigration and Asylum Act 1999 or section 47 of the Immigration, Asylum and Nationality Act 2006 would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, the Secretary of State may require an application under paragraph 276ADE (private life) or Appendix FM (family life) of these rules. Where an application is not required, in assessing that claim the Secretary of State or an immigration officer will, subject to paragraph 353, consider that claim against the requirements to be met under paragraph 276ADE or Appendix FM and if appropriate the removal decision will be cancelled.
8. At the date of hearing, which was 6 January 2015, the rules were as follow.
276A0. For the purposes of paragraph 276ADE(1) the requirement to make a valid application will not apply when the Article 8 claim is raised:
(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;
(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant's place of detention; or
(iii) in an appeal (subject to the consent of the Secretary of State where applicable).

400. Where a person claims that their removal under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971, section 10 of the Immigration and Asylum Act 1999 or section 47 of the Immigration, Asylum and Nationality Act 2006 would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, the Secretary of State may require an application under paragraph 276ADE(1) (private life) or under paragraphs R-LTRP.1.1.(a), (b) and (d), R-LTRPT.1.1.(a), (b) and (d) and EX.1. of Appendix FM (family life as a partner or parent) of these rules. Where an application is not required, in assessing that claim the Secretary of State or an immigration officer will, subject to paragraph 353, consider that claim against the requirements to be met (except the requirement to make a valid application) under paragraph 276ADE(1) (private life) or paragraphs R-LTRP.1.1.(a), (b) and (d), R-LTRPT.1.1.(a), (b) and (d) and EX.1. of Appendix FM (family life as a partner or parent) of these rules as appropriate and if appropriate the removal decision will be cancelled.
9. Although the wording of both paragraphs changed between the date of decision and the date of hearing, nothing turns on those changes themselves. What is clear is that paragraph 400 is addressed to the Secretary of State or an immigration office and requires the decision maker to consider whether a person should be required to make an application under appendix FM or paragraph 276ADE or to apply those provisions directly, with the exception of the requirement to make an application.
10. As such, paragraph 400 relates to how the decision-maker handles a human rights claim where a person is facing removal under s.10 of the 1999 Act. It is difficult to see how a judge at an appeal hearing could apply this provision because within both versions of the rules it would appear that whether an application is required or not is a discretionary matter. It is well established in public law that the Tribunal cannot review a discretion unless a discretion has been exercised or there has been a decision not to exercise discretion.
11. It is because there was no evidence to indicate that the Secretary of State had exercised discretion in respect of paragraph 400 that I must find that Judge Bell erred in relying on this provision.
12. But this is a technical error because as can be seen from the provision of paragraph 276A0, irrespective of which version is considered, the requirement to make a valid application under paragraph 276ADE is waived in an appeal. I mention for clarity that because the date of decision is before the coming into force of s.15 of the Immigration Act 2014, the issue of whether the Secretary of State's consent is required is irrelevant. It would only apply if the amended version of s.85 of the Nationality, Immigration and Asylum Act 2002 applied, which it does not.
13. It follows from these considerations, that if Judge Bell was able to consider paragraph 276ADE directly, then as per the version of s.85 in force at the date of hearing, she was entitled to consider evidence up to that date. This can only mean that she was entitled - in fact required - by law to examine the appellants' circumstances as at the date of hearing.
14. The Secretary of State's other grounds of appeal challenge the findings made by Judge Bell. The Secretary of State argues that she erred in her understanding of what is meant by "very significant obstacles to integration" in paragraph 276ADE(1)(vi) and in finding that the third appellant could benefit from the passage of time after the date of decision to secure his position under paragraph 276ADE(1)(v).
15. It is appropriate to set out the provisions of paragraph 276ADE as they were at the date of application. As far as I can ascertain, this is the version that was also in force at the date of hearing and remains in force.
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK.
276ADE (2). Sub-paragraph (1)(vi) does not apply, and may not be relied upon, in circumstances in which it is proposed to return a person to a third country pursuant to Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.
16. In light of my findings in relation to the first ground of appeal, it follows that I am satisfied that it was open to Judge Bell to consider the third appellant's situation as at the date of hearing. He was born on 13 June 1996 and arrived in the UK on 18 September 2001. By 6 January 2015 he was nearly 18 years and seven months old and had spent over 13 years here, as Judge Bell confirmed in paragraph 21 of her decision. Although I have explained that there is legal error in how Judge Bell came to apply the law as at the date of hearing, as I have indicated that error is in no sense material because she was right to consider the facts as at the date of hearing. I conclude that there is no reason to set aside her decision in relation to the third appellant.
17. The Secretary of State's challenge to the judge's decisions in relation to the first and second appellants is twofold. The first argument is that Judge Bell should not have had regard to paragraph 276ADE as at the date of application and I need say no more about that. The second issue, and to which I now turn, is what is the meaning of the phrase, "very significant obstacles to integration".
18. Neither representative was aware of any legal authorities regarding this specific phrase and nor am I. This is not to say that the Court of Appeal has been silent on the issue. A search on Bailii indicates that the Court of Appeal has used the phrase on a number of occasions but in each has been asked to consider questions of proportionality under article 8(2) ECHR. The Court of Appeal has associated the phrase to other tests such as "insurmountable obstacles" and proportionality in general. It is obvious that the phrase must be considered in respect of a person protected private life rights because as is well known, paragraph 276ADE and its associated provisions were introduced to give legislative effect to the UK's obligations to respect a person's private life rights under article 8.
19. Turning to the provision itself, I find the adjectival usage shows that this provision imposes a high threshold that an appellant must overcome but that the barrier is not so high as to be unachievable. It is also obvious that the rules do not require a person to show the "most significant obstacles" and that the requirement of this provision is to see what obstacles there are to integration into the country to which a person will return and then to evaluate how significant those obstacles are. In my view, the rule envisages that there will always be some obstacles to integration but that it will often be proportionate to expect a person to overcome those obstacles in order to resume life in their country of nationality or a country in which they are entitled to live. The rule will be satisfied where it is no longer reasonable to expect a person to overcome the obstacles they face, either because of the severity of those obstacles, because they are numerous or other very significant reason.
20. In addition to these factors, I also see there is a need to examine the situation in the country to which the person will have to go because the provisions require consideration of whether a person can integrate into the country to which they will be removed. The focus must be on the country of destination and whether a person has integrated into the UK is immaterial in relation to paragraph 276ADE(1)(vi).
21. Having considered the meaning of the phrase, "very significant obstacles to integration", I turn to consider whether Judge Bell properly applied the test.
22. In paragraphs 25 and 26, Judge Bell considers the medical concerns raised by the appellants. The first appellant suffers from Crohns disease and the second from rheumatoid arthritis (RA), interstitial lunch disease and NSIP secondary to RA. The second appellant has significant mobility problems as a result. Judge Bell's spends quite some time in paragraph 27 comparing the available medical treatment in the UK and Kenya. At the end of paragraph 27 Judge Bell concludes this part of her findings with the observation, "This is relevant to [the second appellant's] ability to integrate in Kenya as it would reduce her ability to socially or economically integrate."
23. Before considering Judge Bell's other findings, I make the following observations. Although Judge Bell has recorded the medical needs of both appellants and the available medical care, at no point does she find that the appellants should be allowed to remain in the UK to receive better medical treatment. As is clear from the last sentence of paragraph 27, Judge Bell focused on how the appellants' medical conditions might affect their ability to integrate into Kenya. She found that the very serious mobility problems facing the second appellant would be a very significant obstacle to integration. This approach is clearly consistent with the wording of paragraph 276ADE(1)(vi) as I have outlined above.
24. In paragraphs 28 and 29, Judge Bell examines what other obstacles the appellants face on return to Kenya. She recognised that the appellants have not lost touch completely with relatives in Kenya but that contact is minimal. In paragraph 29 Judge Bell took into consideration the fact that the appellants have Indian ancestry and would face problems of discrimination in Kenya. She accepted the appellants' accounts of the security problems they experienced in Kenya and the lack of resources in that country.
25. It is clear from her decision that Judge Bell focused on identifying what obstacles to integration the appellants would face. She identified that the second appellant had significant mobility problems, which would persist should she return to Kenya because the second appellant would not be able to expect the same level of medical care. Judge Bell also identified that the appellants faced discrimination in Kenya because of their Indian ethnicity and that the level of discrimination they had experienced in the past had been significant. Discrimination prevents integration, particularly as the appellants would have significant difficulties securing a livelihood in Kenya. Judge Bell also took into consideration the long absence the appellants had had from Kenya and their minimal contact with the society there.
26. Judge Bell then considered whether these factors could amount to very significant obstacles to integration and looking at them in the round concluded that their combined effect reached the relevant threshold. In other words, in all the circumstances it was not reasonable to expect the appellants to return to Kenya to integrate because to do so would be to put them in an extreme adverse situation.
27. Because it is possible to follow Judge Bell's line of reasoning in this way, I cannot find that her findings are in any sense perverse. Because her findings are sound, her decision must be upheld in relation to the first and second appellants.
28. I mention that when considering paragraph 276ADE Judge Bell was not required to carry out a balancing exercise because the rules permit a person to stay who has very significant obstacles to integration. If that test is met - as here - then there is no reason to carry out a full proportionality assessment. Because of this, once Judge Bell had identified factors that would make the appellants' integration into Kenyan society very difficult, it was open to her to find that the requirements of paragraph 276ADE(1)(vi) were met.
29. However, if it was necessary to carry out a classic Razgar assessment in relation to the appellants' rights under article 8, from the findings made by Judge Bell, the outcome would be the same. In summary:
a. The appellants have established private and family life in the UK because of the time they have been here and the activities they have undertaken.
b. The immigration decision to expel them would fundamentally alter how they enjoy their private and family life.
c. The decision is in accordance with the law.
d. There is public interest in expelling the appellants because of the need to maintain effective immigration controls and for the economic wellbeing of the country.
e. The appellants' personal circumstances, however, make removal disproportionate because there are very significant obstacles to them enjoying private and family life in Kenya.
30. So, even if I am wrong and there is an error in the application of paragraph 276ADE(1)(vi), it too would be immaterial because on the findings made the appellants would succeed under article 8 applied directly. But this is merely an alternative approach. If anything, it reinforces the findings made by Judge Bell in that the same outcome should be reached by either path since the purpose of paragraph 276ADE is to make transparent the application of article 8 rights.

Decision
Although there is legal error in the decision and reasons statement of First-tier Tribunal Judge Bell, it is not such as to require the decisions to be set aside. I uphold the decisions made on all three appellants.

Signed Date

Judge McCarthy
Deputy Judge of the Upper Tribunal