Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/09381/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 6 June 2013
On 14 June 2013

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

piratheepan thillainathan
Appellant

and

ENTRY CLEARANCE OFFICER - CHENNAI

Respondent

Representation:

For the Appellant: Mr Paramjorthy (Counsel)
For the Respondent: Mr T Wilding, a Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant, Piratheepan Thillainathan, was born on 26 June 1991 and is a male citizen of Sri Lanka. The appellant had applied under paragraph 317 of HC 395 (as amended) for entry clearance to the United Kingdom as an adult child living alone outside the United Kingdom in the most exceptional compassionate circumstances. His application was refused by the respondent by a decision dated 18 April 2012. The appellant appealed to the First-tier Tribunal (Judge Herwald) which, in a determination promulgated on 23 January 2013, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The sponsor of the appellant’s application is his father, Thambiraja Thilainathan (hereafter referred to as the sponsor). The sponsor’s wife and two daughters have been granted entry clearance to join him in the United Kingdom. The sponsor and other members of the appellant’s family attended the Upper Tribunal hearing on 6 June 2013.
3. Mr Paramjorthy, for the appellant, submitted that there were two challenges to the First-tier Tribunal’s determination. First, it is asserted that the judge has made a mistake in fact by finding at [21e] when he wrote that, “the appellant was said to be living in a house where the family have lived with him for many years”. In a witness statement dated 7 January 2013, which appears not to have been put before the First-tier Tribunal, the sponsor at [13] states that, “the former family home in Sri Lanka was sold in anticipation of my family joining me in the UK”. The appellant is, in fact, residing in temporary accommodation with a family in Colombo. Mr Wilding, for the respondent, submitted that the sponsor’s earlier statement dated 31 January 2012 had made no reference to the sale of the family home. The judge had, therefore, been given no indication in the evidence that the property had been sold.
4. I find that any error of fact it is not material in this instance. At the time of the decision (as now) the appellant was not living alone but with a family in Colombo. He could not, as a consequence, satisfy paragraph 317, notwithstanding the circumstances in which he may have been living at the date of decision. In any event, it was clearly open to the judge to find that the circumstances in which the appellant was living were not “most exceptional”. The Immigration Rules appeal was, therefore, bound to fail because the appellant was not living alone or in the most exceptional circumstances. The alleged error fact concerns a matter which, even if corrected, could not save the Immigration Rules appeal. Consequently, nothing would be achieved by setting aside the determination.
5. I have considered the relevance of the judge’s possible mistake in the Article 8 ECHR appeal. The grounds assert that the judge, as a consequence of his mistake, has failed adequately to consider proportionality. I disagree. Applying the familiar test set out in Razgar, the judge found that the appellant would not suffer any interference with his right to respect for private or family life and, even if he did suffer such interference, the consequences were not of such gravity as potentially to engage the operation of Article 8. Applying Kugathas [2003] EWCA Civ 31, he found that there were no “further elements of dependency” which would justify invoking Article 8 to assist an adult child separated from his adult family members. At [28], the judge went on, notwithstanding his earlier findings under the Razgar test, to consider proportionality. He found that the decision of the Entry Clearance Officer’s decision would not cause a disproportionate interference to the appellant’s private or family life. Again applying the principles of Kugathas, the judge found that the relationship between the appellant and his adult family members in the United Kingdom would continue, undisturbed and by the same means as before the date of the immigration decision.
6. I find that those findings were clearly open to the judge on the evidence before the Tribunal. It is inconceivable that the judge would have reached a different decision in respect of Article 8 if he had been aware that the appellant was living in accommodation with a family in Colombo rather than the former family home; the rationale for the judge’s decision concerned the lack of ties of dependency between adult family members rather than the precise nature of the appellant’s accommodation in Sri Lanka.
7. The second ground of appeal also concerns the Article 8 ECHR appeal. The grounds assert that the judge failed to “engage with the appellant’s particular circumstances. The appellant had not ever left the family home, had not ever become financially and emotionally dependent [independent?] upon his family and the granting of entry clearance to the appellant’s mother and sisters would have the effect of leaving the appellant on his own, in temporary accommodation, without the support of his mother and sisters and the sponsor’s evidence that he was paying £100 towards the appellant’s accommodation costs here in the UK”. The grounds also assert that the judge failed to have proper regard to “the nature of south Asian familial tradition” which was “to the effect that the child remained a family member until marriage”.
8. I have no doubt that the sponsor and other family members in the United Kingdom dearly wish for the appellant to join them. They indicated their concern for his welfare by attending the Upper Tribunal hearing. However, I find that the ground pleaded does not have merit. The sponsor and other family members chose to leave Sri Lanka and cannot have been certain that the appellant would have been able to join them. Any disruption in the close family bonds which they no doubt enjoyed with the appellant in Sri Lanka has occurred as a consequence of their own decision to come to the United Kingdom. Further, whilst the First-tier Tribunal Judge may have concentrated to too great an extent on quoting from jurisprudence relating to Article 8 at the expense of a close analysis of the facts, I find that he did not err by failing to make any specific reference to the close nature of relationships within South Asian families. The judge did draw attention to the fact that the appellant is an adult and, whilst financial ties continue, he was also right to find, on the face of the evidence before him, there were no special ties of dependency which should bring this appellant within the ambit of Article 8. There is also some force in the point made by Judge French (refusing permission to appeal in the First-tier Tribunal) that, if the appellant had wished to argue this point before the First-tier Tribunal, he should have adduced expert evidence regarding the nature of ties within South Asian families; he chose not do so and the judge was entitled to determine the case on the evidence he had before him.
9. I find that the First-tier Tribunal did not err in law such that its determination falls to be set aside. The appeal is dismissed.

DECISION
10. This appeal is dismissed.

Signed Date 12 June 2013

Upper Tribunal Judge Clive Lane