OA/02135/2015

• Status of case: Unreported
• Hearing date: 2 Feb 2017
• Promulgation date: 10 Feb 2017
• Publication date: 3 Nov 2021
• Last updated on: 3 Nov 2021

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/02135/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision Promulgated
On 2 February 2017
On 10 February 2017



Before

Deputy Upper Tribunal Judge Pickup


Between

Anmari Clare Deiparine Mendoza
[No anonymity direction made]
Appellant
and

The Entry Clearance Officer Manila
Respondent


Representation:
For the appellant: Mr A Slatter, instructed by Pines Consultancy Ltd
For the respondent: Mr P Nath, Senior Home Office Presenting Officer


DECISION AND REASONS
1. The appellant, Anmari Clare Deiparine Mendoza, date of birth 23.5.99, is a citizen of the Philppines.
2. This is her appeal against the decision of First-tier Tribunal Judge Harrington promulgated 24.8.16, dismissing on all grounds her appeal against the decision of the Entry Clearance Officer, dated 29.9.14, to refuse her application made on 7.7.14 for entry clearance as a child dependent of her British citizen uncle, pursuant to paragraph 297 of the Immigration Rules.
3. The Judge heard the appeal on 9.8.16.
4. First-tier Tribunal Judge Hollingworth granted permission to appeal on 30.12.16.
5. Thus the matter came before me on 2.2.17 as an appeal in the Upper Tribunal.
Error of Law
6. In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the decision of Judge Harrington should be set aside.
7. In granting permission to appeal, Judge Hollingworth considered it arguable that the judge attached "insufficient weight to the emotional needs of the appellant and the way in which these are to be met in considering the best interests of the appellant. It is arguable that the judge has provided an insufficient analysis of this issue set against the circumstances which constitute the background to the case including the health of the appellant's grandmother and the relationship between the appellant and her grandmother.
8. "It is arguable that the judge has attached insufficient weight to the role of the appellant's uncle. It is arguable that the judge has insufficiently delineated the nature of that role in the assessment of the factors referred to at paragraph 40 if the appellant came to the UK. It is arguable that the attaching of insufficient weight to these factors has led to the first reason given at paragraph 51(a) in concluding that the interference was proportionate since the refusal continued the status quo.
9. "It is arguable that in considering the proportionality exercise the Judge has set out an insufficient analysis of the effect of the appellant being with the sponsor and his family in contradistinction to the sponsor and his family travelling to the Philippines and visiting the appellant. It is arguable that the Judge has not attached sufficient weight to the effect of daily physical presence on the part of the sponsor in evaluating the role of the sponsor in assessing the best interests of the appellant. It is arguable that the conclusion reached in applying section 55 has thereby been affected and that consequently the proportionality assessment has been affected.
10. For the reasons summarised below, I find that the grounds of application for permission to appeal are no more than a disagreement with the findings and conclusion of the First-tier Tribunal. I am satisfied that the First-tier Tribunal Judge gave anxious consideration to all relevant factors both for and against the appellant's case. Matters of weight are for the judge to assess. Whilst another judge may have reached a different conclusion, it is clear from the decision of the First-tier Tribunal that cogent reasoning has been provided for the conclusions reached. It cannot be said that the decision was perverse or irrational.
11. As the Rule 24 reply, dated 13.1.17, points out, "The grounds amount to a mere disagreement. The judge found the witnesses compelling and are accepted as credible but notwithstanding this the Judge found the evidence overall to be insufficient. The Judge made appropriate findings on what evidence was presented. The grounds are simply arguing that more weight should be placed on the evidence to tip the balance in favour of the appellant. Arguments of weight is a matter for the Judge and this decision does not contain a material error of law."
12. I specifically reject the first submission of Mr Slatter that the judge put the 'cart before the horse' at [36] to [37] of the decision by assessing emotional needs before best interests. Mr Slatter suggested that the judge reached a conclusion at [36] that did not address whether the appellant's emotional needs were better met by her uncle. That submission arises from a misreading of [36], where the conclusion referred to was that the appellant was using her aunt and uncle to vent her frustration with her grandmother and the natural tendency of children to not always see eye-to-eye with their caregiver. It was not a conclusion on the whole of the case as Mr Slatter's submissions suggested.
13. I also note that at [23] considered the whole of the evidence before making any factual findings in the case. The judge went on to detail what was a careful assessment of the evidence, considering the appellant's basic needs, her emotional needs and, in the light of those needs, to determine her best interests. At [40] the judge set out factors that would apply if the appellant came to the UK, and at [41] those factors that would apply if she did not. Essentially, the judge was making a balanced assessment of the best interests of the appellant, recognising at [42] that there are factors that point in both directions. The judge was entitled to reach the conclusion that the appellant's best interests were met by her remaining in the Philippines, for which conclusion the judge has given detailed cogent reasons that are easily understood by reading the decision.
14. At [43] the judge went on to apply Mundeba to recognise that the best interests of the child are a very important consideration in determining whether there are serious and compelling family or other considerations that make her exclusion from the UK undesirable, and at [44] considered whether there were other factors not previously considered in the best interests assessment that would make exclusion undesirable.
15. I am satisfied that the conclusion that the appellant did not meet the requirements of the Immigration Rules was one open to the judge on the evidence and for which clear and cogent reasoning has been provided.
16. Although the judge went on to consider article 8 ECHR private and family life outside the Rules from [47] onwards, it is far from clear to me that on the facts of this case there were any compelling circumstances insufficiently recognised in the Rules to justify such a consideration on the basis that the decision would otherwise be unjustifiably harsh. In SS (Congo) the Court of Appeal concluded that in applications for LTE rather than LTR the state has a wider margin of appreciation in determining the conditions to be satisfied before LTE is granted, by contrast with the position in relation to decisions regarding LTR for persons with a non-precarious family life already established in the UK: "The LTE Rules therefore maintain, in general terms, a reasonable relationship with the requirements of Article 8 in the ordinary run of cases. However, it remains possible to imagine cases where the individual interests at stake are of a particularly pressing nature so that a good claim for LTE can be established outside the Rules. In our view, the appropriate general formulation for this category is that such cases will arise where an applicant for LTE can show that compelling circumstances exist (which are not sufficiently recognised under the new Rules) to require the grant of such leave." This was said to be a fairly demanding test, but not as demanding as that of exceptionality, or very compelling circumstances.
17. Frankly, there was nothing particularly compelling in the facts of this case. The judge carefully assessed and took into account the claim that the grandmother was unable to continue to care for the appellant.
18. I am satisfied that having made an article 8 ECHR assessment, the judge did so following the Razgar stepped approach. The judge accepted that there was family life between the appellant and her uncle and that the decision interfered with that family life by preventing them from living together in a single family until. As is often the case, the crucial factor was the proportionality balancing exercise between on the one hand the rights of the appellant and her family members and on the other the legitimate and necessary aim to protect the economic well-being of the UK through the application of immigration control. The Judge gave detailed reasons at at [51] for finding the decision proportionate. The grounds and Mr Slatter's submissions are merely a disagreement with that conclusion.
19. There was and is no merit in this appeal, which amounts to an attempt to reargue the case. The grounds and the submissions identify no material errors of law.
Conclusions:
20. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal stands and the appeal remains dismissed on all grounds.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order pursuant to rule 13(1) of the Tribunal Procedure Rules 2014.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The appeal has been dismissed and thus there can be no fee award.


Signed

Deputy Upper Tribunal Judge Pickup

Dated