Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/14912/2013

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On 1st March 2017
On 30th March 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Komal Sami
(no anonymity direction made)
Appellant
And

Entry Clearance Officer, Islamabad
Respondent

For the Appellant: Mr Brown, Counsel instructed by Latif Solicitors
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Pakistan born on the 22nd February 1992. This appeal concerns her ongoing assertion that she should be admitted to the United Kingdom as a returning resident.

Case History

2. The Appellant first came to the UK in January 2006 as a dependent of her father, who was then a work permit holder. She was then aged thirteen. On the 10th April 2006 the Appellant and her mother Shamim Naz were granted indefinite leave to remain.

3. On the 2nd November 2008, when she was sixteen, she was taken back to Pakistan with Shamim Naz. Mother and daughter remained in Pakistan with no attempt to return to the UK. On the 2nd June 2013 they made applications for entry clearance as returning residents.

4. The applications were refused in a decision dated 25th June 2013. The Entry Clearance Officer (ECO) noted that they had been out of the country for more than two years and the reasons why were unclear. Having regard to paragraphs 18 and 19 of the Immigration Rules, the applications were refused.

5. The Appellant and her mother appealed the decisions. Their linked appeals came before the First-tier Tribunal (Judge Holt) in May 2014 and in a determination promulgated on the 28th May 2014 the appeals were dismissed. The Tribunal agreed that the applications fell to be dismissed with reference to paragraph 18 of the Rules, and found, with reference to paragraph 19, no reason why discretion should be exercised in their favour.

6. The Appellant and her mother sought permission to appeal against the decision of the First-tier Tribunal. Permission was refused by First-tier Tribunal Judge Clayton on the 7th July 2014.

7. The Appellant and her mother renewed their applications for permission to appeal directly to the Upper Tribunal. The application was initially rejected as ‘out of time’ but upon challenge this decision was resolved in the applicants’ favour: administrative staff had erroneously calculated the deadline for renewal as ten days from the date of service, whereas in these out of country appeals the deadline was in fact 28 days. On the 28th November 2014 First-tier Tribunal Judge Campbell agreed that time should be extended so that the applications could be considered. The Appellant and her mother heard nothing further from the Tribunal.

8. On the 22nd March 2015 Shamim Naz died in Pakistan. The Appellant’s solicitors wrote to the Tribunal with this news and requested that consideration of the Appellant’s application for permission be expedited in view of the fact that she then remained alone in Pakistan.

9. No response was forthcoming from the Tribunal. Further correspondence resulted, on the 16th December 2015, in Designated Judge of the First-tier Tribunal writing to the Appellant to apologise for what was, apparently, a further administrative error. The application was not in fact dealt with until the 11th November 2016 when Upper Tribunal Judge Jordan granted permission.

10. The matter came before me on the 1st March 2017.

The Appeal

11. The written grounds complain that the First-tier Tribunal erred in failing to place weight on the evidence that the Appellant’s grandmother in Pakistan had been ill. They submit that it was “harsh and unreasonable” to fail to recognise that Shamim Naz had spent a number of years in this country with her husband. Submissions are made about the fact that the Sponsor suffered a heart attack in October 2013 and remains unwell.

12. In his oral submissions Mr Brown very properly recognised that none of the written grounds were going to get very far. It was difficult to argue that the Tribunal had ignored the evidence about grandmother, since it is addressed in some detail in the determination, and the evidence about the Sponsor’s illness all post-dated the date of decision. The fact that the Appellants had lived in the UK between 2006 and 2008 is clearly a matter that the Tribunal was aware of.

13. Mr Brown instead applied to vary the grounds. The argument put with customary concision by Mr Brown was that the First-tier Tribunal erred in approaching the case of the Appellant in the same way as it approached the case of her mother. The Rules require decision-makers to exercise their discretion but it appeared that in its exercise of that discretion the Tribunal failed to factor in the Appellant’s young age. She was 16 when she left the UK and was at all times under the control of her mother and father. She was not in a position to make decisions about whether she should leave the UK, or indeed come back. Whilst the Tribunal might have been justified in finding that Shamin Naz had deliberately forfeited her right to remain in the UK by remaining out of the country for more than two years, the same could not be said of her daughter.

Discussion and Findings

14. The relevant part of the Immigration Rules is at paragraphs 18-19:
18. A person seeking leave to enter the United Kingdom as a returning resident may be admitted for settlement provided the Immigration Officer is satisfied that the person concerned:
(i) had indefinite leave to enter or remain in the United Kingdom when he last left; and
(ii) has not been away from the United Kingdom for more than 2 years; and
(iii) did not receive assistance from public funds towards the cost of leaving the United Kingdom; and
(iv) now seeks admission for the purpose of settlement.
18A. Those who qualify for admission to the United Kingdom as returning residents in accordance with paragraph 18 do not need a visa to enter the UK.
19. A person who does not benefit from the preceding paragraph by reason only of having been away from the United Kingdom too long may nevertheless be admitted as a returning resident if, for example, he has lived here for most of his life.
15. It is not in dispute that the Appellant left the UK in November 2008 and did not apply to return until June 2013. Her application fell to be refused with reference to paragraph 18(ii).

16. The matter in issue before me is whether the discretion conferred by paragraph 19 should have been exercised in the Appellant’s favour.

17. In its determination of that matter the First-tier Tribunal directed itself that the focus for its enquiry was the date of decision in June 2013. The Appellant’s father, Mr Sami Ullah of Cheetham Hill, gave evidence to the effect that he was unwell and needed his daughter to come back to the UK to help look after him. Judge Holt was not minded to place any weight on that matter since there was no evidence that he had been unwell at the date of decision. The Tribunal noted the chronology and found as fact that neither Appellant had spent “most” of her life in the UK, the example given in paragraph 19. The reasons given for why these appellants had left the UK was “confused and confusing”. On the one hand Shamim Naz had said that she had returned to look after her ailing mother in Pakistan, but on the other her mother had remained ill in Pakistan at the date that they made their applications to come back to the UK. The medical evidence indicated that the condition of the lady in question had not improved at all. To the contrary she suffered from chronic conditions associated with aging. In his oral evidence Mr Ullah had claimed that the other reason that his wife had gone back to Pakistan was to chaperone their elder daughters who were living there. They had been medical students at the time but when they both married his wife was free to come back to the UK. It then emerged that the Appellant was studying dentistry in Pakistan at the date of the hearing. Mr Ullah had told the Tribunal that his wife was needed there to chaperone her.

18. It is clear from the determination that the Tribunal was not impressed by Mr Ullah’s evidence. At paragraph 17 the Tribunal said this: “Overall I gained the impression that he was prevaricating and reluctant to tell me the true and private reasons for the appellants leaving the UK and now, additionally, their desire to return”. At paragraph 26 the determination concludes: “I found the evidence about why the 1st appellant left the UK to be vague, inconsistent and overall I was not satisfied that I was being told the truth. My strong impression is that there was another agenda or set of reasons that was not being brought to light”.

19. The findings specific to the Appellant (the 2nd Appellant before the First-tier Tribunal) are at paragraphs 28-31. The Tribunal expresses concern at the “unsatisfactory” matter of the Appellant being a full time dentistry student in Pakistan. The Tribunal queries why she would want to abandon those expensive and lengthy studies in order to return to the UK, particularly where there was no evidence that she would be able to resume them once here. The idea that she was prepared to abandon those studies was at odds with the evidence that the family had made substantial efforts to ensure that her sisters were able to qualify as doctors. The reasoning concludes at 31:

“Overall, cannot make positive findings about why the appellants left the UK, although I do note that the second appellant would only have been 16, so a child and presumably without much choice on her part. Whatever the reasons for leaving in 2008, the reasons for wanting to return in June 2013, were most uncertain and vague. Overall, my finding is that the parties including the sponsor made an application for their own private reason or reasons which they did not want to share with me”.

Having had regard to the relevant factors listed in R v Secretary of State for the Home Department ex parte Ademuyiwa [1986] Imm AR 1, the appeals were dismissed on all grounds.

20. In his submissions Mr Brown asked me to consider whether the bald recognition of the appellant’s young age at the date of departure in the paragraph cited above was sufficient. The Tribunal there recognised that the Appellant can have had little say in her immigration status or living arrangements at that age. Even after she turned 18 she had remained living in the family home and, it was submitted, would remain under her parents’ control in accordance with Pakistani custom.

21. I have given careful consideration to Mr Brown’s very well made submissions but I cannot be satisfied that there is any material error of law in this determination. The question is one of discretion. By its nature the exercise of discretion calls for decision makers to consider a wide variety of factors. In this instance the First-tier Tribunal had to look at why the Appellant and her mother left the UK, why they remained outside of the country and why they wanted to come back. As is I think clear from the summary and excerpts I set out above, the First-tier Tribunal could be satisfied about very little of the evidence presented about any of those matters. At paragraph 31 the Tribunal expressly recognised that the Appellant could hardly be blamed for her departure from the UK aged 16, but at the date of the appeal before the Tribunal the Appellant was a young woman aged 22 years old. She had therefore spent four years out of the country as an adult. Mr Brown submitted that as a young unmarried Pakistani woman she would not have been able to ‘take charge’ of her own affairs. That submission is in my view substantially diminished in weight by the fact that this particular young Pakistani woman is studying at post graduate level to be a dentist, and that since the death of her mother in Pakistan she has in effect been living independently and indeed pursuing this appeal. She is clearly not incapable of making her own decisions. I am further conscious that there was no particular evidence before the Tribunal concerning the Appellant. Had she for instance, submitted a witness statement to the effect that she had been given no say in the matter and had been prevented by family pressure from returning to the UK, that would have been a different matter. As it is the only reason advanced for her absence was that she was helping her mother to care for her grandmother and/or chaperone her sisters. The Tribunal was not satisfied that either or both were good enough reasons to exercise the discretion under paragraph 19. It is difficult to see how that decision would have been different if the only appeal before the Tribunal had been the Appellant’s, and greater weight had been attached to her age.

Decision

22. The decision of the First-tier Tribunal does not contain an error of law such that the decision should be set aside.

Upper Tribunal Judge Bruce
26th March 2017