Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/40254/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 25 May 2016
On 28 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE O'RYAN

Between

PAIK LEE HOR
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Saifolahi instructed by McKenzie Solicitors
For the Respondent: Mr Kotas Senior Home Office Presenting Officer

DECISION AND REASONS
1 This is an appeal brought by the Secretary of State against the decision of the First-tier Tribunal (Judge of the First-tier Tribunal Gibbs) dated 25 September 2015, allowing the appeal brought by Ms Paik Lee Hor against the Secretary of State's decision of 24 September 2014 to refuse her leave to remain, and to remove her under section 10 of the Immigration and Asylum Act 1999. As will become apparent below, I have found that the Secretary of State succeeds in establishing that there were material errors of law in the judge's decision, such that it becomes necessary for this Tribunal to re-decide the case, Ms Hor therefore reverting to the status of Appellant. I shall therefore refer to the parties as they were before the First tier.
2 The Appellant is a national of Malaysia, born on 24 October 1956, and was therefore 58 years old at the time of her appeal before the judge. The Appellant had appealed against the Respondent's decision on the grounds that her removal from the United Kingdom was contrary to Immigration Rule 276ADE (1) (iii) and/or (vi), on the grounds of her long residence in the United Kingdom, and/or, would amount to a disproportionate interference with her private and family life as protected by Article 8 ECHR.
3 The Appellant's immigration history is that she arrived in the United Kingdom on 1 November 1995 as a visitor. She would therefore have had leave to enter until approximately May 1996. It was her admitted evidence that she overstayed that leave to enter. Her witness statement dated 3 October 2014 refers to her having assisted her younger sister to look after her children for a number of years. The Appellant's evidence was that she departed the United Kingdom on 31 March 2003, and re-entered on 7 May 2003 as part of a tour group arriving on the Eurostar train from Brussels. Her passport was not stamped on arrival. The Respondent disputed in her decision of 24 September 2014 that the Appellant had entered lawfully on that occasion.
4 The Appellant made an application, which she believed to be and in-time application to vary her leave to remain, on 4 November 2003, to remain in the UK as a student. Her evidence in her witness statement was that she engaged in studies between 2003 and 2006. No decision appears to have been made on that application until 20 October 2010. She unsuccessfully sought reconsideration of that decision. In July 2013 the Respondent made written enquiries to the Appellant as to her method of entry. She replied that month. On 22 July 2014 the Appellant was served with a notice advising her that she had no leave to remain in the UK and provided her with IS.75 and IS.76 one stop letters requesting that she provide any additional evidence as to why she should be permitted to remain in the UK.
5 The Appellant made further representations through her solicitors on 4 August 2014, requesting limited leave to remain in the United Kingdom on the basis of her long residence. It was argued (see Annex H3 of the Respondent's bundle) that the Appellant had provided detailed evidence of the means by which she had entered the United Kingdom on 7 May 2003, and the representations pointed to the relevant legal provision, found in the Immigration Act 1971, Schedule 2, Paragraph 6 (4), which permitted leave to enter to be granted collectively to groups of travellers, to a responsible third-party in charge of the group.
6 Ultimately, a decision was taken by the Respondent on 24 September 2014 to remove the Appellant, attracting a right of appeal to the First-tier Tribunal.
7 In the Appellant's appeal, heard on 8 September 2015, the Appellant, and her brother and sister gave oral evidence to the judge. Written evidence was also provided by a Mr [N] (78 years old), who the judge ultimately held had a 'very close friendship' with the Appellant. The Appellant is joint owner of a property with Mr [N], albeit that this is not used as residential accommodation for either of them; it is used as staff accommodation for a restaurant business owned by the Appellant's brother, and Mr [N].
8 The judge made the following findings:
(i) The Appellant was present in the UK unlawfully from the end of her initial period of leave to enter as a visitor, i.e. from 1996, to 2003 [14].
(ii) The Appellant entered the UK on 7 May 2003 using the method of entry that she detailed [13]; she was lawfully present from 7 May 2003 [14]. (This necessarily amounts to a finding that she entered with leave to enter as a visitor on 7 May 2003.)
(iii) The Appellant applied in time for further leave to remain on 4 November 2003 [2], [13], [14]. The Appellant was lawfully present from 7 May 2003 to the date her application for leave to remain as a student, which was refused on 12 November 2010 [14]. (It is unclear to me why the judge found that the Appellant had remained present until 12 November 2010, given that her application to vary leave was refused on 9 September 2010, but I do not find this material).
(iv) At the date of the judge's decision, the Appellant had therefore been present in the UK for 19 years and 10 months, with an absence of only 37 days [14].
(v) The Appellant sought to exaggerate her lack of familial connections in Malaysia; she has five siblings in Malaysia [16]. The Appellant's brother in the United Kingdom would be able to continue to support the Appellant financially if she returned to Malaysia [17].
(vi) The Appellant is a joint owner with Mr [N] of a property in the United Kingdom which could be sold and her half share used to establish herself on return to Malaysia [17].
(vii) The Appellant had not established that there would be very significant obstacles to her integration into Malaysia on her return there [18].
(viii) With regard to the consideration of the Appellant's appeal under Article 8 ECHR, the judge noted the Presenting Officer did not object to the judge proceeding, after having considered the Appellant's entitlement to leave to remain under the immigration rules, to consider her case under Article 8 ECHR [19].
(ix) The Appellant was 'extremely close to meeting' the requirements of paragraph 276ADE(1)(iii).
(x) The relationship between the Appellant and Mr [N] was one of 'very close friendship between family friends who have sought to help each other during difficult times' [25], and see also [26]. Family life did not exist between them [28].
(xi) Family life did not exist between the Appellant and her adult siblings [28].
(xii) The Appellant has established a significant private life in the UK given the substantial period of time that she has lived in the UK [29].
(xiii) The first four steps in Razgar could be answered in the affirmative [29].
(xiv) The Appellant does not present a financial burden on the taxpayer [30].
(xv) The Appellant speaks English and is integrated into society [30].
(xvi) Some of the Appellant's private life had been established whilst she was in the United Kingdom unlawfully, and some whilst here precariously [30].
9 The judge concluded his deliberations as follows at paragraph 30-31:
"30. ... Whilst s.117B(4) and (5) requires that I give little weight to private life established whilst a person is here both unlawfully and precariously I find there was a significant Home Office delay in processing the Appellant's case (7 years) which I find is a material factor in assessing proportionality (EB (Kosovo) [2008] UK HL 41).
31. In the balancing exercise before me I am aware that significant weight must be given to the public interest in removal where a person does not meet the requirements of the immigration rules. However, the facts of this appeal are that on 7 November 2015 the appellant would meet the requirements of paragraph 276ADE(iii) and I find that this reduces the public interest in her removal, particularly when taking into account her financial independence and integration in the UK. I am also satisfied that she has established a significant private life in the UK, and in reaching this conclusion I do place weight on her relationship with Mr [N]. I find that these factors, taken with the 7 years Home Office delay in this case, tip the balance in the appellant's favour. I am not persuaded that on the facts of this appeal the public interest in the appellant's removal outweighs the interference in her article 8 ECHR rights and I find that the decision is disproportionate."
10 The Respondent sought permission to appeal against that decision on grounds, in summary, that the judge erred in law in:
(i) proceeding to consider the Appellant's case under Article 8 ECHR at all (para 2);
(ii) failing to direct himself that compelling circumstances needed to be established by the Appellant (SS(Congo) v SSHD [2015] EWCA Civ 387) (para 2);
(iii) misdirecting himself in law in appearing to find that the Appellant was 'extremely close to' satisfying the requirements of 276ADE(1)(iii), on the grounds that para 276A, defining the term 'continuous residence', required under 276A(a) the Appellant to have had lawful leave to enter or remain at the time of her departure of 31.3.03 as well as at the time of her return of 7.5.03; she did not have any valid leave at the time of her departure and she "re-entered again (presumably without any leave)" (para 5); therefore she had not been continuously present, as defined under the rules, for 19 years and 10 months; this was material to the weight given to the public interest at [30];
(iv) treating at [30] the Respondent's delay in processing the Appellant's application for leave to remain of 4.11.03 as determinative of the proportionality assessment (para 6);
(v) failing to give the Appellant's private life little weight, as per s.117B(4) and (5) NIAA 2002;
(vi) failing to direct himself in law that the Appellant's private life could be reconstituted and replicated in her country of origin, with reference to MM (tier 1 PSW; Art 8; 'private life') Zimbabwe [2009] UKAIT 00037).
11 Permission to appeal on those grounds was granted by Judge of the First Tier Tribunal Zucker on 7.4.16, in the following terms:
"3. It seems clear that the Judge actually was of the view that there was more to the relationship between the Sponsor and Appellant than either felt comfortable to admit. However the Judge was required to make findings based upon the evidence. Whilst arguably the closer an appellant comes to meeting the requirements of a rule the less that may additionally (need to) be demonstrated to demonstrate any interference by the Appellant would be disproportionate: Patel [2013] UKSC 782, it is arguable that the judge's calculation of continuous residence was fundamentally flawed. It is arguable that this affects the entire approach taken by the judge to the appeal. Permission is granted on all grounds."
12 In submissions before me, Mr Kotas adopted the grounds of appeal. During his oral submissions he sought to challenge the judge's finding that the Appellant had entered lawfully on 7.5.03. I indicated that I was of the view that the use of the expression 'presumably without leave' at paragraph 5 of the Respondent's grounds of appeal did not amount to a discreet challenge against the judge's clear finding that the Appellant entered lawfully on that date. There is also relevant legal authority, referred to in the Appellant's representations of 4.8.14, which amply supports the judge's conclusion on that issue.
13 For the Appellant, Ms Saifolahi sought to defend the judge's decision. In discussion with her, I queried whether the judge had appropriately directed himself in law by identifying that there were compelling circumstances justifying the finding that the decision to remove her was disproportionate. Ms Saifolahi argued that the decision read holistically was sustainable and that the absence of such a direction was not material. Further, she argued that even if the judge erred in finding that the Appellant was 'extremely close' to satisfying the requirements of para 276ADE(1)(iii), this was not a material error because there were other factors supporting the judge's overall conclusion.
Discussion - error of law
14 At the hearing on 25.5.16 I indicated my finding that there were material errors of law in the judge's decision such that I intended to set it aside. I now provide my reasons, addressing the Respondent's grounds of appeal as I have numbered them in paragraph 10 above.
(i) I find that there was no error in the judge proceeding to consider Article 8 outside the rules. The Presenting Officer before the judge agreed that this should be done (see para 19). Further, even if (see below) there was an error by the judge in his approach to assessing 'continuous residence' for the purpose of para 276ADE(1)(iii), such that the Appellant was not 'extremely close' to meeting that rule, and even if the Appellant could not meet the requirement of 276ADE(1)(vi) (very significant obstacles to integration), the Appellant had been in the United Kingdom for 19 years and 10 months, save for 37 days absence, and it was obvious that there were good grounds for considering the private life that she had accrued here during that period under Article 8 ECHR, even if it did not result in entitlement to leave to remain under the rules.
(ii) I find that the judge did err in law in failing to appropriately direct himself in law that the Appellant needed to establish compelling circumstances to succeed in her appeal. The reference at [31] to the Appellant 'tipping the balance' is not sufficient to assure a reader of the decision that the judge has directed himself appropriately in law.
(iii) I accept that the judge may have misdirected himself as to the meaning of 'continuous residence' under paras 276A and 276ADE(1)(iii) of the rules. The Appellant would have needed to have had leave to enter or remain at the point she left the UK on 31.3.03 in order to be treated to have had continuous residence for 19 years and 10 months. She was not extremely close to satisfying 276ADE(1)(iii), nor would she have satisfied that rule on 7.11.15 (see para 31). The earliest the Respondent would meet 276ADE(1)(iii) would, I find, be 7.5.2023, 20 years after her last entry. I find that this matter materially affected the judge's assessment of the proportionality of the decision to remove her.
(iv) I do not find that the judge treated the Respondent's delay as determinative of the appeal; this was one of a number of factors which the judge took into account at [31], and I find he was entitled to take it into account.
(v) &
(vi) As it is necessary for me to remake the decision in this appeal, I shall discuss the issues raised in these two grounds below, in the remaking of the decision.
15 Upon indicating in the hearing that I intended to set the matter aside, I invited submissions from the parties as to how the matter should be re-decided. Ms Saifolahi asked that the matter be remitted to the First tier Tribunal so that Mr [N] could give evidence by way of videolink. I indicated that I could find nothing to undermine the judge's findings of fact, which were not vitiated by error of law and would be retained. I could see no reason for any further oral evidence. Mr Kotas proposed that I hear submissions as to the remaking of the decision. I agreed that that was the appropriate course of action.
16 I heard submissions from the parties as to re-making the decision. Mr Kotas argued that there were no compelling circumstances in the appeal. There was no family life. The Appellant had been present in the United Kingdom either unlawfully or on a precarious basis for the whole of the time that she had been present. He accepted that the Respondent had delayed an application for leave to remain made by the Appellant for seven years, but queried whether this had prejudiced her, and why she had waited for seven years for an application for leave to remain as a student to be decided. Mr Kotas pointed to the findings of the judge that the Appellant had sought to exaggerate her lack of ties to Malaysia. She could return to Malaysia and visit the United Kingdom if she wished. MM suggests that the Appellant could replicate a private life for herself on return to Malaysia, and invited me to dismiss the appeal.
17 On behalf of the Appellant Ms Saifolahi submitted that although the Appellant's presence in United Kingdom did not amount to continuous residence for the purposes of paragraph 276ADE(1)(iii), she had been present in United Kingdom for now 20 years, save for the 37 days when she returned to Malaysia (to see her elderly parents - now deceased). No explanation had been given by the Respondent as to the reason for the delay from 2003 to 2010 in making a decision upon the Appellant's application for further leave to remain. The Appellant first met Mr [N] in 1980, but their very close friendship grew from 1995 onwards. That relationship was further developed during the period 2003 to 2010 in which the Respondent delayed the Appellant's application.
18 As regards the decision in MM, that had been given in the context of a person having entered initially as a student, and then seeking (unsuccessfully) leave to remain on a post study work basis. It was in that context in which the observations of the Upper Tribunal had been made. In relation to the application of section 117B it was to be noted that the Appellant was fluent in English, and was financially independent. Further, even if section 117B (4) and (5) required the private life which the Appellant had developed in United Kingdom to be given little weight, this did not require that no weight be attached it. She asked me to allow the appeal
Remaking
19 I proceed to determine the appeal on the basis of the findings of fact made by the judge, which have not been vitiated by any error of law. I note the Appellant does not meet the requirements of the immigration rules, and this is a significant factor when assessing whether the public interest requires the Appellant's removal from the United Kingdom. (s.117B (1), NIAA 2002).
20 I proceed to determine whether such removal will be disproportionate. The Appellant has now been present in the United Kingdom for a period of over 20 years, save for an absence of 37 days in 2003. Notwithstanding that the rules on private life and long residence are not met in this case, there are good grounds for considering the Appellant's private life in the United Kingdom outside of the rules, given its significant duration.
21 I adopt the judge's finding that the Appellant has a significant private life in United Kingdom, which includes her "very close relationship" with Mr [N]. She has siblings in the UK and is the joint owner of some property, which although not her home, represents an element of her integration into the United Kingdom. She is not a financial burden on the United Kingdom, and speaks English fluently.
22 I have regard to the fact that her private life in United Kingdom has been established during periods of time when she was here lawfully, but with precarious leave, or unlawfully. Section 117B (4) and (5) of the 2002 Act provides that I must have regard to the consideration that little weight should be given to such private life. In the case of Deelah and others (section 117B - ambit) [2015] UKUT 00515 (IAC), the President considered the construction of these subsections of section 117B. Headnote 2 provides:
"Section 117B(4) and (5) of the 2002 Act, which instruct Judges to attribute "little weight" to the considerations specified therein, do not give rise to a constitutionally impermissible encroachment on the independent adjudicative function of the judiciary."
23 Accordingly, I do have regard to the consideration that little weight should be given to the Appellant's private life. I note that the consideration is not that little weight must be given such a private life. Further I find that having regard to the considerations in s.117B(4) and (5) does not oblige me to place no weight on the Appellant's private life. Further, I find that there will be many circumstances where little weight will indeed be given to a private life developed whilst United Kingdom unlawfully or precariously. However common sense, and my obligation to perform my independent adjudicative function, result in my finding that there will be cases, which include the present, where the period of time over which a private life has been developed, together with its extent, mean that it is proper that due weight be attached to that private life, even if developed whilst present unlawfully or with precarious leave. I attach due weight to the Appellant's private life developed whilst she has been in United Kingdom.
24 In MM, headnote 3 provides:
"3 When determining the issue of proportionality in such cases, it will always be important to evaluate the extent of the individual's social ties and relationships in the UK."
I find that that must be right, and it is important to look at the duration, and extent of the Appellant's social ties and relationships in this country. The headnote continues:
"However, a student here on a temporary basis has no expectation of a right to remain in order to further these ties and relationships if the criteria of the points-based system are not met. Also, the character of an individual's 'private life' relied upon is ordinarily by its very nature of a type which can be formed elsewhere, albeit through different social ties, after the individual is removed from the UK. In that respect, 'private life' claims of this kind are likely to advance a less cogent basis for outweighing the public interest in proper and effective immigration control than are claims based upon 'family life' (or quasi-family life such as same-sex relationships) where the relationships are more likely to be unique and cannot be replicated once the individual leaves the UK.
25 I consider that guidance in relation to the relationships which the Appellant relies upon in United Kingdom. Principal amongst those is the friendship she has with Mr [N]. I find that this is a person she first met in 1980 but their friendship developed from 1995 onwards. Mr [N] is a man of 78 years of age, and the appellant is 59. This is not a relationship falling into the category of those which 'ordinarily, by its very nature' is of the type which can be formed elsewhere. I do not seek to elevate the relationship between the Appellant and Mr [N] into one of family life or quasi family life, but it represents a very significant part of the Appellant's private life in United Kingdom and I find it may be described as unique. I proceed on the basis that the nature of the Appellant's private life in the United Kingdom is not one which is capable of being replicated or substituted by different private life after removal from the UK.
26 I also make reference to the Respondent's delay of 7 years in processing an application for leave to remain in the UK. In her Rule 24 response dated 25 April 2016, the Appellant makes reference to the Respondent's policy in Chapter 53 of the Enforcement Instruction Guidance on exceptional circumstances wherein it is stated that a factor to take into account when deciding whether to enforce removal would include the length of residence in the United Kingdom accrued by an unreasonable delay not attributable to the migrant. The guidance provides that the following must be considered: "Any other case where the length of delay by the Home Office in deciding the application, or where there were factors preventing departure, may be consider exceptionally on grounds of delay where the person has lived in the UK for more than six years." I note that the delay in the present case was of 7 years.
27 That being the Respondent's own policy suggests that weight ought to be attached to such matters. The guidance also provides that considerations of Home Office delay may not assist an applicant if there are adverse character issues in relation to that person. I note the following from paragraph 12 of the Respondent's decision of 24 September 2014 in relation to the present Appellant:
"12 Having reviewed your client's particular circumstances, it is accepted that she meets the requirements detailed above. Therefore, it is accepted that your client meets the suitability requirements for her eligibility to be considered."
The Respondent therefore takes no point against the Appellant's character or conduct.
28 Taking all the above considerations into account, I find that there are in the present case sufficiently compelling circumstances such that I find the Respondent's decision to remove her amounts to a disproportionate and therefore unlawful interference with the Appellant's private life in United Kingdom.
29 I therefore allow her appeal on human rights grounds.

Decision:
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
I set aside the decision
I re-make the decision in the appeal by allowing it.

Signed: Date: 27.10.16

Deputy Upper Tribunal Judge O'Ryan