Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00010/2016

THE IMMIGRATION ACTS

Heard at Bennett House Stoke
Decision & Reasons Promulgated
On 31st January 2017
On 14th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

erfan arif hamah amin
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:

For the Appellant: Mr E Barr of Counsel instructed by Jasvir Jutla & Co Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against the decision of Judge Devlin of the First-tier Tribunal (the FtT) promulgated on 20th September 2016.
2. The Appellant is a male Iraqi citizen born 14th November 1981. The Appellant entered the United Kingdom with leave as a student on 6th July 2009. On 7th August 2015 he claimed asylum.
3. The application was refused on 15th December 2015 and the Appellant appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The appeal was heard by the FtT on 24th August 2016 and dismissed on all grounds.
4. The Appellant applied for permission to appeal to the Upper Tribunal relying upon three grounds which are summarised below.
5. Firstly the FtT had erred when considering paragraph 276ADE(1)(vi) applying the wrong standard of proof. At paragraph 104 the FtT had made reference to a reasonable degree of likelihood. The Appellant submitted that the correct test is a balance of probability, and by applying either the wrong test or no test at all, the FtT materially erred.
6. Secondly it was contended the FtT had erred by finding that family life which engaged Article 8 did not exist between the Appellant, his brother and sister-in-law, and their son. The FtT had found that private life existed, but it was submitted it was impossible to find that the Appellant did not enjoy family life with his relatives, and find that he had established a private life with them. It was submitted that the FtT had not considered relevant case law when finding family life did not exist between adult siblings and the Appellant's adult sister-in-law.
7. Thirdly it was contended that the FtT had made a factual error at paragraph 12 by describing the Appellant as married. It was not the Appellant's case that he was married and this indicated a lack of anxious scrutiny by the FtT.
8. Permission to appeal was granted by Judge Martins and I set out below, in part, the grant of permission;

2. The grounds assert that, the judge applied the wrong test in respect of paragraph 276ADE; erred in his approach to the issue of family life; and made factual errors in respect of the evidence, which in turn led to erroneous findings.
3. The assertions made in the grounds are evident on the face of the decision.
4. All grounds are arguable.
5. An arguable error of law is shown.
9. Following the grant of permission the Respondent lodged a response pursuant to the Tribunal Procedure (Upper Tribunal) Rules 2008 contending, in summary, that the FtT had not erred in law. It was not accepted that the wrong standard of proof had been applied to paragraph 276ADE, but even if it had, the FtT had applied a lower standard, and found that the Appellant had failed to discharge that burden, therefore it could not be said that the Appellant could have discharged a higher standard.
10. It was submitted that the FtT properly considered the issue of family and private life, and had not erred in concluding that while private life had been established, family life between adults had not. It was contended that the reference to the Appellant being married was not more than a typographical error.
11. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT decision should be set aside.
The Oral Submissions
12. Mr Barr relied and expanded upon the grounds contained within the application for permission to appeal. It was confirmed that there was no challenge to the FtT findings on the protection element of the appeal.
13. Mr Bates relied and expanded upon the rule 24 response.
14. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
15. The FtT did not err in law, and my reasons for reaching this conclusion are set out below.
16. I am not satisfied that an incorrect standard of proof was used when the FtT considered paragraph 276ADE(1)(vi). At paragraph 104 the FtT explains that it is not satisfied that there is a reasonable likelihood that the Appellant's account is true. This is a reference to earlier findings made in relation to the claim for protection. As the FtT was not satisfied that the Appellant had given a credible account, it was perfectly entitled to find that it could not be satisfied that the Appellant had proved there were very significant obstacles to his reintegration into Iraq. The FtT went on in paragraph 104 to give reasons for that conclusion.
17. Even if, which I do not accept, the FtT had applied the wrong standard of proof in considering paragraph 276ADE(1)(vi) this would not be a material error of law. The FtT found the Appellant could not satisfy the lower standard, that being a reasonable degree of likelihood, and it follows the Appellant would not have been able to discharge the higher standard of proof, that being a balance of probabilities.
18. Referring to family and private life, it is not necessary for the FtT to make specific reference to previously decided case law, provided the correct principles are applied. I am satisfied that those principles have been applied in this case. Kugathas [2003] EWCA Civ 31 confirms family life that would engage Article 8 is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties.
19. It is correct that the Upper Tribunal in Ghising [2012] UKUT 00160 (IAC) acknowledged that the judgment in Kugathas had been interpreted too restrictively in the past and ought to be read in the light of subsequent decisions of the domestic and Strasbourg courts (paragraph 56). It was confirmed that there should be no blanket rule with regard to family life between adult children, and each case should be analysed on its own facts.
20. I am satisfied that the FtT looked at all the relevant circumstances in this case, and gave adequate reasons for concluding that family life between the Appellant, who is an adult, and his adult brother and sister in law, did not exist, which would engage Article 8. It is not wrong in law to accept that private life exists where no family life exists. The FtT at paragraph 24 commented that there was very little evidence other than assertions, as to the strength of the Appellant's relationship with his nephew.
21. This ground does not disclose an error of law, but is evidence of a disagreement with findings made by the FtT, which were open to it on the evidence.
22. I accept that the FtT made a factual error in describing the Appellant as married. That was not his case. However I do not find that this mistake has any relevance to the conclusions reached by the FtT and therefore the error is not material.
23. I conclude that the FtT considered all the evidence placed before it, and made findings which were open to it on the evidence, and supported those findings with adequate and sustainable reasons.
Notice of Decision

The making of the decision of the FtT did not involve the making of a material error on a point of law. I do not set aside the decision. The appeal is dismissed.

Anonymity

No anonymity direction was made by the FtT. There was no request for anonymity made to the Upper Tribunal and I see no need to make an anonymity order.

Signed Date 3rd February 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. There is no fee award.

Signed Date 3rd February 2017

Deputy Upper Tribunal Judge M A Hall