Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02303/2020

THE IMMIGRATION ACTS

Heard at Birmingham CJC
Decision & Reasons Promulgated
On the 21 June 2022
On the 08 August 2022

Before

UPPER TRIBUNAL JUDGE HANSON

Between

VRB
(Anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Acharya of Acharya Solicitors.
For the Respondent: Mr Williams – a Senior Home Office Presenting Officer.

DECISION AND REASONS

1. In a decision promulgated on 13 August 2021 Upper Tribunal Judge Grubb found an error of law in the decision of a judge of the First-tier Tribunal who had allowed the appellant’s appeal pursuant to article 8 ECHR.
2. The appellant is a citizen of Ghana born on 23 September 1969 who entered the United Kingdom in September 2001. In October 2007 the appellant received a nine-month prison sentence for using a false ID card in relation to an application to remain in the UK under EU law.
3. On 4 February 2018 the appellant claimed asylum which was refused by the respondent on 1 March 2008. Further submissions made on 1 April 2015 were rejected on 22 May 2015 and the appellant’s challenge to the refusal dismissed on appeal. The appellant became appeal rights exhausted on 1 November 2016.
4. On 29 March 2017 the appellant made further submissions which were rejected by the respondent on 16 January 2018 and the appeal against that decision dismissed.
5. Further submissions lodged on 14 November 2018 and 18 April 2019 were also refused.
6. Submissions lodged on 16 December 2019, relying upon the Refugee Convention, Article 3 ECHR in relation to the appellant’s medical condition and Article 8 ECHR - including relying on the impact upon his relationship with his partner SM - were lodged, which were refused by the Secretary of State against which the appellant appealed.
7. On 22 January 2021 the First-tier Tribunal allowed the appeal on the article 8 ECHR ground only. The Secretary of State challenged the decision to allow the appeal. There was no cross-appeal against those aspects of the claim that were dismissed.
8. A transfer order was made following Judge Grubb’s decision and the matter comes back before the Upper Tribunal today to enable it to substitute decision to either allow or dismiss the appeal.

Discussion

9. There is reference in the error of law decision to [53] of the decision of the First-tier Tribunal where Judge Grubb, at [17] writes:

17. At para 53 of her decision, Judge Landes found that it had not been established that there would be “very serious hardship or insurmountable obstacles” to the appellant and SM continuing their family life in Ghana. She said this:

“53. Judge Colyer and Grimmett both found that there were no insurmountable obstacles to family life between the appellant and SM continuing in Ghana. There has been some factual changes to his situation since then, although still no material to indicate that she would not be able to work as a nurse in Ghana. SM bought a property in August 2018 (with a discount of over £40,000 under the right to buy scheme) and fears she would lose this if she went to Ghana, but if she were to go to Ghana, the sensible thing to do would be to sell the property and use the equity which she is likely to have, given the discount, to make a start in Ghana. Her younger son (now 25) is living in her home and he has had difficulties as I described below but he is now working so has money to support himself. The difficulties he experienced were that he had dropped out of university and, under the influence of others, become involved with drugs. He went to court and had, as SM described, a type of breakdown. She said he had counselling from her and from other church members and she and church members still talk to him. He was not and had not received any treatment from the GP. Whilst it would be ideal for SM to remain in the UK to support her son, he is able to work and he is not receiving medical treatment and of course can continue to be supported by church members in the absence of his mother. SM is also involved (or was pre-COVID) in the case of her grandchildren, her elder son’s children in the sense that they would visit frequently and stay over (the appellant suggested that the children were left with him so the sun could work but that was not SM’s evidence – she just referred to them ‘visiting’). She is involved with her church as a trainee preacher. All these factors and of course the fact that it would mean uprooting her life yet again would make it difficult for SM to live in Ghana and it will be hardship for her to start again in another country thing everyone she has worked for here and her family behind, particularly her vulnerable younger son, but I’m not satisfied that these difficulties amount to very serious hardship or insurmountable obstacles”.

10. Judge Grubb notes at [18] of his determination that the finding that there were no insurmountable obstacles to the appellant and SM continuing their family life in Ghana, and so paragraph EX.1 did not apply, is not challenged.
11. It was similarly noted by Judge Grubb that the First-Tier Tribunal Judge’s finding that the appellant could not succeed under paragraph 276ADE(1)(vi) was not challenged.
12. The starting point for this appeal is the finding the appellant cannot succeed under the Immigration Rules.
13. The appellant relied upon the same evidence that had been provided in the 2020 appeal bundle.
14. The basis of the appellant’s claim, set out in the skeleton argument, is that he is in a genuine subsisting relationship with SM, a Zimbabwean national who has Indefinite Leave to Remain, and that there are insurmountable obstacles to continuing their family life in Ghana; which has been rejected earlier and which is a preserved finding.
15. The second basis of his claim is that he would face significant obstacles to continuing his private life in Ghana; but such a claim has been rejected which is a preserved finding.
16. The third basis of claim is an assertion the appellant has other families living in the UK with whom he has a strong bond, that the appellant would not be able to openly practice his Christian faith in Ghana, that he will be at risk of ill treatment if returned as a result of his membership of the Adzorvia clan, and that he does not believe he will receive the same medical treatment on return to Ghana.
17. The protection claims both under the Refugee Convention and article 3 ECHR has been dismissed which is a preserved finding.
18. In relation to medical issues, it has not made out that the appellant was able to establish an entitlement to remain in the United Kingdom when considering the decision of the Supreme Court in AM (Zimbabwe).
19. Both parties refer to the decision of the Supreme Court in Agyarko [2017] UKSC 11. At [57] Lord Reed, giving the judgement to which of the Justices agreed, stated:

“…Ultimately, [a court or Tribunal] has to decide whether the refusal is proportionate in the particular case before it, balancing the strength of the public interest in removal of the person in question against the impact on private and family life. In doing so, it should give appropriate weight to the Secretary of State’s policy, expressed in the Rules and the Instructions, but the public interest in immigration control can be outweighed, when considering an application for leave to remain brought by a person in the UK in breach of immigration laws, only where there are ‘insurmountable obstacles’ or ‘exceptional circumstances‘ as defined. It must also consider all factors relevant to the specific case in question,… The critical issue will generally be whether, giving due weight to the strength of the public interest in removal of the person in the case before it, the Article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.”

20. At [60] of the judgement it was stated by Lord Reed:

“It remains the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions in issue in the present case to not depart from that position. The Secretary of State has not imposed a test of exceptionality, in the sense which Lord Bingham [in SSHD v Huang] had in mind: that is to say, a requirement that the case should exhibit some highly unusual feature, over and above the application of the tester proportionality. On the contrary, she has defined the word ‘exceptional’, as already explained, as meaning ‘circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be disproportionate’. So understood, the provision in the Instruction that leave can be granted outside the Rules were exceptional circumstances apply involves the application of the tester proportionality to the circumstances of the individual case, and cannot be regarded as incompatible with Article 8…”

21. The focus of the test when considering an application for leave to remain outside the Immigration Rule should be that of “unjustifiably harsh consequences”.
22. Those issues raised in the appellant in his evidence as problems flowing from removal, namely impact on his mental health, interference with his private life in the UK of 19 years, that SM is a property owner and has a vulnerable adult son, are all factors that have been taken into account as part of the assessment of the application under the Immigration Rules. The evidence in relation to such aspects has not changed as the appellant referred to the same evidence filed in 2020.
23. When considering a challenge based upon human rights grounds it is important to take into account the statutory provisions set out in section 117 of the Nationality, Immigration and Asylum Act 2002. These define the public interest and the factors to be taken into account when assessing whether an individual’s circumstances are sufficient to outweigh the public interest.
24. Although the appellant has been in the United Kingdom since 2001 he never had leave to remain. His presence has been unlawful and his status precarious, warranting little weight being given to the private life he seeks to rely upon.
25. There is no challenge to the finding at [52] of the decision of the First-tier Tribunal that the appellant will, even if there is an impact on his mental health when returned to Ghana, have the support of SM. It was noted in any event at [51] of the earlier decision that the appellant is not on medication, has not had any therapy for some time as a result of his mental health issues, and seems to have managed without treatment for some years as there was no indication of his being referred for treatment before 2018. It appears the appellant is anxious and suffers with symptoms, but they do not amount PTSD and there was no evidence of suicide.
26. It is accepted SM is a property owner but that can be rented or sold, and it was not made out the presence of SM’s son, who is vulnerable, enabled the appellant to succeed under the Immigration Rules or is a bar to removal sufficient to make the decision disproportionate.
27. Whilst I accept Mr Acharya’s submission that the appellant has been in the United Kingdom for a long time, and in a long relationship, I also accept Mr Williams submission that little weight should be given to his private life developed whilst his status has been precarious, and the relationship entered into when he knew his presence in the United Kingdom is not lawful.
28. The fact the appellant may not have reoffended is noted but that is what is expected of any law-abiding citizen in the UK and is a neutral aspect as is the ability of SM to work and fund the family unit and lack of evidence of the appellant having made a claim upon the public purse.
29. There is immediate family in the United Kingdom but it was not made out they form part of the appellant’s family life and even if an aspect of his private life this aspect, individually or in combination, has not been shown to be sufficient to outweigh the public interest in this appeal.
30. The submissions made by Mr Acharya were, in effect, a rerun of the arguments that he had advance previously which is understandable as the evidence on which they are based is exactly the same other than the appellant has been in the UK longer.
31. If the appellant believes he is now able to succeed on the basis of more than 20 years in the UK that is a new matter in relation to which, if he wishes to make an application, he will no doubt be advised upon the merits of the same by Mr Acharya. That would of course be an application under the immigration rules which, as at the date of this hearing, it has been found he cannot satisfy.
32. The difficulty for this appellant is that when weighing everything cumulatively it has not been established that he cannot continue his family life with SM outside the United Kingdom. There is therefore no evidence of a disproportionate interference with the same.
33. His private life warrants only little weight being attached to it.
34. There is a strong public interest in this case.
35. Whilst it is accepted the appellant wishes to remain in the United Kingdom with SM he cannot satisfy the immigration rules which set out the Secretary of State’s policy in relation to those who believe they should be able to remain, and Article 8 ECHR does not give a person the right to choose where they wish to live.
36. Returning to the question of whether there are would-be unjustifiably harsh consequences if the appellant is removed to Ghana, I find the appellant has not established that there will be such consequences flowing from the Secretary of State’s decision.
37. I find, on balance, that the Secretary of State has established to the required standard that the decision under challenge is proportionate, notwithstanding any interference that may occur to a protected right.

Decision

38. I dismiss the appeal.

Anonymity.

39. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated 1 July 2022