Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47006/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th March, 2013 and signed
And sent to Promulgation
On 16th March, 2017.
On 17th March, 2017

Before

Upper Tribunal Judge Chalkley

Between

Neil Mansarally
(ANONYMITY direction not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Wathe of Counsel instructed by Okafor & Co Solicitors
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant was born on 16th December, 1953, and is a Guyanese national. It is unclear when he arrived in the United Kingdom, but he maintains it was sometime in April 2000. On 11th November, 2014, the Secretary of State decided to remove the appellant subject to administrative removal under Section 10 of the Immigration Act 1999 having refused his application, made on 20th January, 2006, for leave to remain in the United Kingdom on the basis of his claim under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The respondent had refused that application in a letter dated 5th November, 2014.

2. The appellant appealed and his appeal was heard by First-tier Tribunal Judge Howard sitting at Harmondsworth on 20th May, 2016.

3. In his determination, under a heading entitled “findings” the judge noted that the respondent had concluded that the appellant had claimed to have arrived in the United Kingdom in 2000 with six months’ leave to enter and could not therefore meet the requirements of paragraph 276B(i)(a). Unfortunately the judge appears to have been persuaded that this was an incorrect finding of fact and law. T

4. he judge referred himself to paragraph 133 of the Home Office Statement of Intent Family Migration June 2014, on the basis of which he concluded that it was open to him to decide whether the appellant had been in the United Kingdom for fourteen years as at 8th July, 2012. The judge found that he had not and therefore dismissed the appellant’s appeal on that basis. He went on to consider paragraph 276ADE(vi) and found that there would not be very significant obstacles to the appellant’s integration into Guyana. He considered that the appellant failed to meet any of the requirements of the Immigration Rules in respect of Article 8 and then purported to apply Razgar. He found that the appellant’s removal would not have sufficient gravity to engage Article 8 and dismissed the appellant’s appeal.

5. The first challenge to the judge’s finding was that he misapplied Section 85(4) of the 2002 Act, because this was an in country hearing. As a result, it was suggested, the judge should have considered whether the appellant had been in the United Kingdom for fourteen years as at the date of the hearing.

6. The second challenge suggested that when assessing paragraph 276ADE(1)(vi) the judge failed to give sufficient consideration to the period of time the appellant had been in the United Kingdom and the fact that during that time his ties will have diminished. It was suggested that he failed to give adequate regard to the appellant’s circumstances in the United Kingdom and did not assess whether there were meaningful ties in Guyana.

7. The third challenge suggested that the judge concluded that the appellant’s relationship with his son amounted to family life and failed to appreciate that the appellant’s son has been financially supporting the appellant and there is in existence, something more than emotional ties between them which brings their relationship within family life relying on Ghising (Family life – adults - Gurkha policy) Nepal [2012] UKUT 160 (IAC).
8. The fourth challenge was that the judge failed to make credibility findings, particularly in respect of the appellant’s son. The next challenge was that the judge erred by failing to consider the diminishing weight attached to private life under Section 117B of the 2002 Act on the basis that the relationship was established in the United Kingdom while the appellant was here unlawfully, and the next challenge was that the judge had failed to consider the impact of the appellant’s removal on his family and associates, and the last challenge was that in finding the second of the five Razgar questions in the negative, the judge’s finding was irrational and erroneous applying AG (Eritrea).

9. Before asking Mr Wathe for his submissions I asked Mr Bramble if he could assist me with several matters. He told me within the Home Office Statement of Intent Family Migration quoted by the judge at paragraph 14 of the judge’s determination, instructions clearly state that:–

“Those who, before 9th July, 2012, have applied for initial or further leave under the Rules in force prior to that date, will if they qualify for it …” [My emphasis]

He said that in respect of this appeal, it was necessary to look to see what the appellant had actually applied for. He had not applied for leave to remain based on his lengthy stay in the United Kingdom, but instead had applied for leave to remain under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. That was the application made on behalf of the appellant by solicitors in a letter dated 19th January, 2006.

10. Mr Bramble pointed out that there was no subsequent application by or on behalf of the applicant to amend that application. He pointed out that nothing in the appellant’s bundle which was relied upon before the First-tier Tribunal amended that application. His reason for pointing that out was because, under paragraph 133 of the Home Office Statement of Intent Family Migration of June 2012 quoted in paragraph 14 of the judge’s determination, it is clear that anyone who before 9th July, 2012 applied for initial or further leave under a Rule in force before that date will, “and if they qualify it, …” be granted leave under the Rules. However, the appellant’s application was not an application under the Rules. It was an application outside the Rules for leave under Article 3.

11. Given that there was no application to vary the original application, that ground must fail. He briefly submitted that the appeal under Article 8 must also fail. At the date the appellant entered the United Kingdom he was 46 years of age and although he had spent, what amounts now to seventeen years in the United Kingdom, assuming he did enter in 2000, there was simply no evidence to show that there would be very significant obstacles to the appellant’s integration in Guyana. As to the human rights appeal outside the Rules the judge applied Razgar and was entitled to conclude on the evidence before him that interference would not have consequences of such gravity as potentially to engage the operation of Article 8.

12. I heard lengthy submissions from Mr Wathe. He told me that he had no instructions in respect of any variation application, but he submitted, the judge did err in dealing with it. It was a factor for the judge to consider, he suggested.

13. In answer to a question from me, Mr Wathe accepted that he had not seen any variation application made to the Secretary of State on behalf of the appellant.

14. Mr Wathe drew my attention to paragraph 18 of the determination, where the judge records that the appellant’s son told the judge that he and his father were very close and that he supports his father, giving him £150 to £200 per month. However, at the end of that paragraph the judge says, “given the applicant left his family in 2000 and appears to have had little to offer them since his arrival I accept that his immediate family are hostile to him”. Mr Wathe suggested that to go on and find that there were no very significant obstacles to the appellant’s integration into Guyana was irrational and illogical. He submitted that it was quite clear that there was family life between the appellant and his adult son. There is an element of dependency beyond normal emotional ties in that the son now gives his father £150 to £200 per month. That brings additional ties which means that there is clear qualifying family life between the appellant and his son. The judge has clearly erred by failing to make any findings in respect of the son’s evidence Mr Wathe submitted. He also failed to consider Section 117B and the diminishing weight attached to family life under that Section, failing to appreciate that his relationship with his son would have been established long before he came to the United Kingdom, namely at birth. The judge also erred by failing to consider the impact of removal on the appellant’s family and friends and by concluding that the answer to the second of the Razgar questions was in the negative bearing in mind the modest threshold for engagement of Article 5.

15. After hearing Mr Wathe’s lengthy submissions I concluded that I need not hear further from Mr Bramble and reserved my determination.

16. This appellant claims to have entered the United Kingdom in April 2000 with six months’ leave to enter. Thereafter he remained without leave. Application was made on his behalf in 2006 for him to be granted leave outside the Immigration Rules on the basis of his rights under Article 3 ECHR. There appears to have been no merit in that application, because, the appellant had based his claim on his suffering from depression and schizophrenia, but had failed to provide any medical evidence at all.

17. I am satisfied from examining the appellant’s bundle and from what I was told by the Presenting Officer and by Counsel that there has been no application to vary that application to the Secretary of State. I find, therefore, that the judge was wrong in suggesting that the Secretary of State’s conclusion that the appellant could not meet the requirements of paragraph 276B(i)(a). The transitional arrangements apply only to applications for initial leave or further leave under the Rules in force prior to 9th July, 2012 and it is only where an applicant qualifies for it that they will then be given leave under the Rules. The suggestion that the judge erred by failing to consider whether the appellant had met the requirements as at the date of the hearing stems from a misunderstanding and misapplication of Section 85(4) of the 2002 Act. The appellant’s application was not under the Immigration Rules, it was for leave outside the Immigration Rules based on the appellant’s claimed fear that his removal to Guyana would result in him suffering a breach of his Article 3 rights. The appellant failed to submit any evidence to suggest that he would suffer a breach of his Article 3 rights on removal. The judge did not err, therefore, in dismissing the appellant’s appeal under paragraph 276B(i)a, however the judge should not have considered that in the first place, unless satisfied that there had been a variation in the appellant’s application. I am satisfied that there was no such variation in that application.

18. The judge then considered paragraph 276ADE(vi) and whether there would be, “very significant obstacles” to the appellant’s integration into Guyana. It is a fact that the appellant was in his forties when he arrived in the United Kingdom and there is no evidence to suggest that he spent his life before entering the United Kingdom anywhere other than in his native Guyana.

19. The judge noted that he had two sisters in Guyana, but that he was not speaking to them. He thought that his family in the United Kingdom would not financially support him because he said that he feared “out of sight would be out of mind”. The judge recorded that the appellant’s son explained that he and his father were very close. I have a copy of the son’s statement which simply says that the son and his wife support his father financially; it gives no details and otherwise provides no evidence of it, how long they have been providing financial assistance or why such financial assistance is needed in the first place.. He also says that he is very close with his father as the last child and that his father has been supportive of him and his family. He goes on to suggest that his wife has also developed a close relationship with his father as her father-in-law.

20. Unfortunately the appellant’s daughter in law is not sufficiently close to the appellant to either attend and give oral evidence on his behalf or even to sign a witness statement.

21. The appellant’s son has signed one very brief statement, but the more lengthy statement attached to the appellant’s bundle is not signed. Quite why the appellant’s solicitors submitted an unsigned statement is not understood. They must have realised that an unsigned statement was unlikely to be given very much weight by the judge.

22. The son apparently told the judge of the appellant’s estrangement from his brothers and mother and the fact that the appellant does not speak to his two sisters in Guyana. The judge noted that the appellant had not spoken of a silence between him and his sisters. The judge found this contradiction to be significant and led him to conclude that the evidence about contact between the appellant and his siblings in Guyana has been played down and that there is a relationship extant. As a result the judge found that with family in Guyana to whom he could turn for help with accommodation and since his son in the United Kingdom was prepared to support the appellant there was no reason to suppose that that support would cease if the appellant were to return to Guyana. On the evidence before him he concluded that there would not be very significant obstacles to the appellant’s integration into Guyana. The grounds suggest that the judge failed to consider the period of time the appellant had spent in the United Kingdom, but with very great respect, that is simply not the case. The judge was fully aware of the fact that the appellant claimed to have been in the United Kingdom since 2002. Nor is it right that the judge failed to have regard to the appellant’s circumstances in the United Kingdom. He did. He refers to the evidence of Mr Brown, a director of learning, at Platanos College but the fact of the matter is that the appellant entered with leave and then simply failed to leave after his leave to remain had expired. It was suggested also that the judge failed to consider whether there were meaningful ties to Guyana. With respect, there was simply no evidence which could properly have led him to conclude that if the appellant were removed to Guyana there would be very significant obstacles to the appellant’s integration. Even if the judge was satisfied that the appellant is estranged from his sisters in Guyana, that fact alone cannot possibly be said to mean that there were very significant obstacles to the appellant’s return.

23. So far as the third challenge is concerned, the mere fact that occasionally the appellant’s son gives his father £150 or £200 does not, with respect, mean that the appellant’s relationship with his adult son is anything other than what one would expect between a loving father and a loving son. There was no evidence of any other dependency and the appellant had failed to mention his dependency on his son in his statement in any event. No details of what monies the son has given his father have been provided. The son does not give any details of how long he has been providing support or why his father has needed financial support, when, according to witness statements the appellant is an accountant.

24. It was then suggested that the judge had erred by failing to make any credibility findings in respect of the son’s evidence, but with respect it is clear from paragraph 19 that the judge found a contradiction in their evidence which led him to conclude that the son’s evidence about lack of contact between the appellant and his siblings had been played down and that there is a relationship extant. The judge went on to find that the appellant has family in Guyana to whom he can turn for help. I do not accept that the judge’s comment in paragraph 18 that the appellant’s immediate family might be hostile to him of itself means that there will be very significant obstacles to the appellant’s integration into Guyana.

25. The fifth challenge is predicated on the assumption that there is family life between the appellant and his adult son. I do not accept, for the reasons I have given, tht their relationship is anything other than one would ordinarily expect between a father and his adult (and married) son.

26. The sixth challenge suggests that the judge failed to consider the impact on removal of the appellant’s family and friends. Again, with great respect there was no statement at all from the appellant’s wife and the only evidence from his friends were in the form of written statements, all asserting that he was a man of integrity and good character and that he has embraced his local community. One of them was not even signed. It is clear, however, from paragraph 23 that the judge does consider the evidence before him. Given the distinct lack of evidence it was open to the judge to find as he did. As the judge pointed out, these relationships were formed whilst the appellant was in the United Kingdom without leave. Even if the appellant had erred in finding that such interference would not have consequences of such gravity as potentially to engage the operation of Article 8, (and I do not accept that he did) it cannot possibly be said that the appellant’s removal is anything other than proportionate, given the very considerable weight that a judge is required to give to the wider interests of the general public in the maintenance of immigration control. Any error (if one could be established) on the part of the judge cannot be said to be material, since it is incapable of affecting the outcome of this appeal.

27. I have concluded, therefore, that Judge Howard did not materially err in law in his determination which will stand. This appeal is dismissed.

No anonymity direction is made.

Richard Chalkley

A Judge of the Upper Tribunal.

TO THE RESPONDENT
FEE AWARD

There is no question of any fee being returned since no fee has been paid.

Richard Chalkley

A Judge of the Upper Tribunal.