Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ui/2021/001339
(PA/04419/2020)

THE IMMIGRATION ACTS

Heard at Cardiff Civil Justice Centre
Decision & Reasons Promulgated
On the 17 March 2022
On the 03 May 2022

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

um
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms I Knight instructed by Asylum Justice
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

DECISION AND REASONS

1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order prohibiting the disclosure or publication of any matter likely to lead to members of the public identifying the appellant. A failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
2. The appellant is a citizen of Mauritius who was born on 29 May 2020. He arrived in the United Kingdom clandestinely in December 2013. He was, at that time, 13 years of age. His mother and father were already in the UK. The appellant now lives in the UK with his parents and younger sister. He also appears to have an elder sister who lives in the UK.
3. Both his parents and elder sister unsuccessfully claimed asylum in 2014, 2017 and 2019 respectively. However, his parents and younger (but not elder) sister were granted 30-months leave to remain in October 2021.
4. On 28 May 2019, the appellant claimed asylum. On 11 September 2020, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and under the ECHR.
The Appeal to the First-tier Tribunal
5. The appellant appealed to the First-tier Tribunal. In a decision sent on 16 November 2020 Judge M Dorrington dismissed the appellant’s appeal on all grounds.
6. The judge rejected the appellant’s claim that there was a real risk of persecution on return to Mauritius on the basis of his actual or imputed political opinion or religious beliefs. On that basis, the judge also rejected the appellant’s claim under Art 3 of the ECHR. He also reject his art 3 claim based upon his mental health concluding that the appellant could not meet the exacting test set out by the Supreme Court in AM (Zimbabwe) v SSHD [2020] UKSC 17.
7. I need say no more about these aspects of Judge Dorrington’s decision as they were not challenged in the grounds of appeal to the UT and no issue was raised in relation to them before me.
8. In addition, the judge also dismissed the appellant’s appeal under Art 8 of the ECHR. First, the judge was not satisfied that the appellant met the requirements of the Immigration Rules based upon his relationship with his girlfriend (under Appendix FM) or under para 276ADE(1)(vi) as it was not established that there would be “very significant obstacles” to the appellant’s integration on return to Mauritius. Secondly, outside the Immigration Rules, the judge found that any interference with the appellant’s family and private life in the UK by his removal to Mauritius was outweighed by the public interest and so would not be disproportionate.
The Appeal to the Upper Tribunal
9. The appellant sought permission to appeal to the Upper Tribunal on a number of grounds challenging only the judge’s adverse decision in relation to Art 8 of the ECHR.
10. On 5 January 2022, the First-tier Tribunal (Judge Scott-Baker) granted the appellant permission to appeal.
11. The appeal was listed before me at the Cardiff Civil Justice Centre on 17 March 2022. The appellant was represented by Ms I Knight and the respondent by Ms S Rushforth.
12. I heard oral submissions from both representatives and Ms Knight also relied upon a written skeleton argument in which she, helpfully, drew together the disparate points raised in the grounds of appeal under a number of headings.
The Grounds of Appeal
13. Drawing on Ms Knight’s helpful skeleton argument, the grounds of appeal may be summarised as follows.
14. First, the judge erred in law by failing to find that family life existed between the appellant and his parents and sisters with whom he lived. As a result, the judge failed to consider the impact on the separation from his family if returned to Mauritius. (Ground 1)
15. Secondly, the judge failed properly to consider the appellant’s circumstances on return to Mauritius, in particular the evidence concerning whether he had contact with any family in Mauritius and what “ties” he has with Mauritius. The judge failed properly to apply the concept of “integration” set out in the Court of Appeal’s decision in SSHD v Kamara [2016] EWCA Civ 815 at [14]. (Ground 2)
16. Thirdly, the judge had taken too narrow a view of Art 8 focusing on the fact that the appellant did not have a spouse or children in assessing whether his removal would be disproportionate. (Ground 3)
17. Fourthly, the judge wrongly applied the public interest requirements in s.117B of the Nationality, Immigration and Asylum Act 2002 (as amended), (“the NIA Act 2002”). In particular, applying the “little weight” provisions in s.117B(4), the judge failed to take into account that the appellant had entered the UK as a minor. Further, the judge had not properly assessed whether he was “financially independent” for the purposes of s.117B(3). (Ground 4)
Discussion
18. I will take in turn each of the grounds and the detail given to them by Ms Knight in her skeleton argument and oral submissions.
Ground 1
19. Ms Knight submitted that the judge (at para 42 of his decision) accepted that the appellant was living with his family in the UK, namely his parents and sister. Further, the judge made no finding that the appellant was leading an independent life. Ms Knight submitted that the judge wrongly failed to consider that the appellant, despite being an adult, maintained “family life” with his parents and sister in those circumstances.
20. On behalf of the respondent, Ms Rushforth submitted that the judge made adequate findings in paras 42 and 43 of his decision applying, in effect, the test for “family life” set out in Kugathas v SSHD [2003] EWCA Civ 31. She submitted that there was little evidence before the judge other than that the family lived together. She submitted there was no evidence in the appellant’s witness statements or from family members that sufficed to establish “family life” for the purposes of Art 8.
21. The correct approach to the establishment of “family life”, in particular in the context of adult children and their parents, was helpfully set out by the Court of Appeal in Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320. At [16] – [20], Lindblom LJ (with whom Beatson and Henderson LJJ agreed) said this:
“16. The legal principles relevant to this issue are not controversial.
17. In Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, Sedley L.J. said (in paragraph 17 of his judgment) that "if dependency is read down as meaning "support", in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, "real" or "committed" or "effective" to the word "support", then it represents … the irreducible minimum of what family life implies". Arden L.J. said (in paragraph 24 of her judgment) that the "relevant factors … include identifying who are the near relatives of the appellant, the nature of the links between them and the appellant, the age of the appellant, where and with whom he has resided in the past, and the forms of contact he has maintained with the other members of the family with whom he claims to have a family life". She acknowledged (at paragraph 25) that "there is no presumption of family life". Thus "a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties". She added that "[such] ties might exist if the appellant were dependent on his family or vice versa", but it was "not … essential that the members of the family should be in the same country". In Patel and others v Entry Clearance Officer, Mumbai [2010] EWCA Civ 17, Sedley L.J. said (in paragraph 14 of his judgment, with which Longmore and Aikens L.JJ. agreed) that "what may constitute an extant family life falls well short of what constitutes dependency, and a good many adult children … may still have a family life with parents who are now settled here not by leave or by force of circumstance but by long-delayed right".
18. In Ghising (family life – adults – Gurkha policy) the Upper Tribunal accepted (in paragraph 56 of its determination) that the judgments 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", and (in paragraph 60) that "some of the [Strasbourg] Court's decisions indicate that family life between adult children and parents will readily be found, without evidence of exceptional dependence". It went on to say (in paragraph 61):
"61. Recently, the [European Court of Human Rights] has reviewed the case law, in [AA v United Kingdom [2012] Imm. A.R.1], finding that a significant factor will be whether or not the adult child has founded a family of his own. If he is still single and living with his parents, he is likely to enjoy family life with them. …".
The Upper Tribunal set out the relevant passage in the court's judgment in AA v United Kingdom (in paragraphs 46 to 49), which ended with this (in paragraph 49):
"49. An examination of the Court's case-law would tend to suggest that the applicant, a young adult of 24 years old, who resides with his mother and has not yet founded a family of his own, can be regarded as having "family life"."
19. Ultimately, as Lord Dyson M.R. emphasized when giving the judgment of the court in Gurung (at paragraph 45), "the question whether an individual enjoys family life is one of fact and depends on a careful consideration of all the relevant facts of the particular case". In some instances "an adult child (particularly if he does not have a partner or children of his own) may establish that he has a family life with his parents". As Lord Dyson M.R. said, "[it] all depends on the facts". The court expressly endorsed (at paragraph 46), as "useful" and as indicating "the correct approach to be adopted", the Upper Tribunal's review of the relevant jurisprudence in paragraphs 50 to 62 of its determination in Ghising (family life – adults – Gurkha policy), including its observation (at paragraph 62) that "[the] different outcomes in cases with superficially similar features emphasises to us that the issue under Article 8(1) is highly fact-sensitive".
20. To similar effect were these observations of Sir Stanley Burnton in Singh v Secretary of State for the Home Department [2015] EWCA Civ 630 (in paragraph 24 of his judgment):
"24. I do not think that the judgments to which I have referred lead to any difficulty in determining the correct approach to Article 8 in cases involving adult children. In the case of adults, in the context of immigration control, there is no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8. I point out that the approach of the European Commission for Human Rights cited approvingly in Kugathas did not include any requirement of exceptionality. It all depends on the facts. The love and affection between an adult and his parents or siblings will not of itself justify a finding of a family life. There has to be something more. A young adult living with his parents or siblings will normally have a family life to be respected under Article 8. A child enjoying a family life with his parents does not suddenly cease to have a family life at midnight as he turns 18 years of age. On the other hand, a young adult living independently of his parents may well not have a family life for the purposes of Article 8."”
22. As the court in Rai makes clear, “family life” can exist between an adult child and parent providing that “more … than normal emotional ties” exist, in particular that there is “real” or “committed” or “effective” support provided by the parents to the adult child. Further, “family life” does not simply cease to exist at the point at which a child, who otherwise has family life with his or her parents, turns 18 years of age.
23. In this appeal, the judge dealt with this issue at paras 42 – 43 as follows:
“42. The Appellant lives with his parents. His father, mother and younger sister have been granted leave to remain in the United Kingdom.
43. The Appellant has provided no evidence to show dependence upon his parents. He said that the previous directions in this appeal did not ask him to provide such evidence but that is missing the point. The directions previously given did not limit the scope of his appeal and he has been legally represented in the preparation of the appeal papers and in the appeal hearing itself by Counsel. It is for the appellant to prepare for and present the evidence in this appeal. It is his appeal. Were his representatives wanting to raise the issue of dependency then it would have been for them to do so with evidence in support. It is not for the previous Judge to tease out all of the legal arguments that may be raised at the subsequent substantive appeal and to then limit the appeal parameters to those issues. No application to adjourn was made in the appeal hearing before me by the Appellant’s Counsel for that further evidence to be obtained.”
24. Ms Knight accepted that there was, indeed, not a great deal of evidence about the appellant’s relationship and life with his family; other than, that is, that he lived with them. No doubt, family life did exist when he was living with his parents from his arrival in the UK in 2013 as a 13 year old child. He is now, of course, 21 years of age. There was no evidence from his family before the judge. His own witness statements dated 14 July 2021 and 18 October 2021, go no further than saying:
“My families (sic) are around me, I feel safe here knowing I have my friends and family to support me mentally.”
25. The focus of the appellant’s evidence is upon his relationship with his girlfriend and his private life in the UK.
26. The judge accepted that the appellant’s relationship with his girlfriend gave rise to “family life”. That follows from para 64 where the judge stated that: “I accept that the Appellant has a family life and private life in the UK.” Likewise, at para 67(c) of the decision, the judge noted that the appellant had established “family life” within the UK but that that had been formed at a time that he had been unlawfully here. That is a reference to his relationship being formed with his girlfriend. Finally, at para 66(f) the judge explicitly found that the appellant’s “family life and relationship with his girlfriend” could continue if he was in Mauritius.
27. There was, therefore, little or no evidence before the judge that the appellant’s relationship with his parents and sister(s) had continued, following his 18th birthday, to reflect the indicia of “family life” identified in Kugathas and the case law referred by Lindblom LJ in Rai. As the judge pointed out in para 43, the evidence of dependency upon his parents was simply absent from the case.
28. As Ms Knight submitted, the judge made no explicit finding that the appellant had formed an “independent life”. However, that was not, in itself, determinative of whether the appellant had established he continued to have “family life” at the age of 21 simply on the basis of the evidence that he continued to live with his parents and sister. In my judgment, on the basis of that limited evidence presented to the judge, it was not Wednesbury unreasonable or irrational for the judge to conclude that the appellant had not established, on a balance of probabilities, that three years after becoming an adult, there existed “more … than normal emotional ties” between the appellant and his parents (and sisters) and that they provided him with “real” or “committed” or “effective” support sufficient to establish “family life” for the purposes of Art 8.1.
29. For these reasons, I reject ground 1.
Ground 2
30. Ms Knight contended that the judge had failed properly to consider the impact upon the appellant if he returned to Mauritius. The judge had failed to take into account his evidence in his asylum interview (at Qs 8 and 9) that he was not in contact with his family when, at para 48, the judge was not satisfied that the appellant had established that his family would be unable to help him on return.
31. The relevant findings by the judge in relation to both the appellant’s family and friends in Mauritius are at paras 48 – 49 as follows:
“48. The Appellant has family in Mauritius but he has not made contact with any of them himself to see if they would be able to help him were he to return to that country. He has not satisfied me that they are either unable or unwilling to help him. The burden of proof was upon him to do so and he has had legal representation who could assist him with that process.
49. The Appellant has made friends in Mauritius through Facebook but again, he is not satisfied they would be unwilling to help him were he to return to that country. Given the contact he has had with him on Facebook, it would be easy for them to confirm or refuse such a request via that media platform.”
32. At Questions 8 and 9 of his asylum interview, the appellant said this:
“Q8. What about in MUS, what family do you have there?
A. I have got all my family there, but we do not speak. We do not have a relationship at all with all of them. Because of the situation that happened, we do not speak to them and they do not speak to us.
Q9. When was the last time you spoke to any of your family in MUS?
A. I do not remember to be honest.”
(See also para 3 of statement dated 14 July 2021.)
33. The appellant previously lived with his grandmother and his evidence was of a number of family members living in Mauritius. .The appellant’s answer in interview that he has not been in contact with his family in Mauritius because of what happened to him (and his parents) has to be read in the context that the asylum claims, raised by both his father and mother, have been rejected.
34. Although the judge did not specifically refer to the evidence in Questions 8 and 9 of the interview, the point made by the judge was that the appellant had not attempted to make any contact with them in order to determine whether they would help him. That was, of course, the same approach that he had adopted in relation to his friends. It was for the appellant to establish, on a balance of probabilities, that his circumstances on return to Mauritius including his claimed ‘estrangement’ from his family there. I am not persuaded that the judge’s finding was not rationally open to him or that it was Wednesbury unreasonable and was a finding relevant both in considering para 276ADE(1)(vi) and the appellant’s claim outside the Rules under Art 8.
35. Ms Knight also contended that the judge failed properly to apply the “integration” test set out in Kamara in concluding that there not “very significant obstacles” to his integration and return to Mauritius under para 276ADE(1)(vi). Paragraph 276ADE(1)(vi) provides that:
“(1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

….

(vi) … is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.”
36. The “very significant obstacles” test undoubtedly sets a relatively high, elevated threshold (see Parveen v SSHD [2018] EWCA Civ 932 at [9] per Underhill LJ).
37. The issue of “integration” was examined by Sales LJ in Kamara at [14] as follows:
“14. In my view, the concept of a foreign criminal's "integration" into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of "integration" calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life.”
38. Ms Knight placed some reliance upon the decision in Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 0060 (IAC). But, that case was concerned with an earlier version of the Immigration Rules in which the test was whether or not the individual had “no ties” with the country to which he was to return. It does not directly assist in interpreting the requirement of “very significant obstacles” to … “integration”: the requirements are “not identical” (see Herrera v SSHD [2018] EWCA Civ 412 at [5] and AS v SSHD [2017] EWCA Civ 1284). The requirement set out in Kamara is to undertake a “broad evaluative judgment” focussed on the ability to “integrate” in the place of return to which any “ties” may be a factor (see, e.g. AS at [54]-[55]).
39. The judge dealt with para 276ADE(1)(vi) in para 56 of his decision. There, he said this:
“56. …. He is a young man who spent formative years [in Mauritius], he speaks the languages spoken there, he is fit and healthy and with no diagnosed medical conditions that either creates such a functional imitation that he would be unable to properly live/function there on his own or that could not be treated there. He was educated there and in the United Kingdom to A Level standard. He has family there. I am not persuaded that they would be unwilling to help him directly or indirectly. The same applies to the friends that he has made there on Facebook. He has strong life and social skills as evidenced by the community activities he undertakes and the voluntary work he does. The transferrable skills he has would mean he could make friends and join in. He would be able to find work to earn money for himself.”
40. The judge then set out, at least in part, the explanation of “integration” in [14] of Kamara. He then concluded at para 57 as follows:
“Pulling everything together I am satisfied that the appellant can integrate into Mauritius. It may be difficult, it will not be easy, but there will not be ‘very significant obstacles’ to him doing that.”
41. Both the grounds, and Ms Knight’s skeleton argument, criticised the judge at para 56 for adopting an “overly formulaic” approach to the issue of “integration”. Ms Knight also referred to the case of JS (Former unaccompanied child – durable solution) Afghanistan [2013] UKUT 568 (IAC) and headnote (4) which provides:

“Where the appellant is no longer a minor, the duty on the Secretary of State under s.55 of the Borders, Immigration and Citizenship Act 1999 no longer arises but when making the assessment of whether removal would lead to a breach of article 8 all relevant factors must be taken into account including age, background, length of residence in the UK, family and general circumstances including any particular vulnerability and whether an appellant will have family or other adult support on return to his home country appropriate to his particular needs.”
42. JS was, of course, concerned with the overall Art 8 assessment and not just the para 276ADE(1)(vi) issue which focusses on the individual’s circumstances in the country of their return, rather than also the impact on the individual’s family or private life in the UK.
43. The grounds criticise the judge for not taking into account the circumstances in which the appellant acquired the “transferrable” skills in the UK, namely whilst at school. I am afraid I do not understand the substance of this point. If the appellant has acquired “transferrable” skill that would allow him to function, including work, in Mauritius then the fact that he acquired them in the UK over the period of time when he was in school, and, of course, subsequently, is immaterial.
44. I do not accept Ms Knights’ submissions. The judge’s decision must be fairly read as a whole. The judge applied the correct test, as set out in Kamara. The judge set out the appellant’s circumstances on return to Mauritius. and, I am satisfied, that he expressly noted that the appellant came to the UK as a 13 year-old child but is now 21 years old (see, e.g. para 37). He was well aware, therefore, of the circumstances of the appellant’s return. The judge did not fail to take all relevant factors into account and reached a Wednesbury reasonable and rational finding on para 276ADE(1)(vi).
45. I reject Ground 2.
Ground 3
46. Under Ground 3, read with some points raised elsewhere in Ms Knight’s skeleton argument, it is contended that the judge employed too “narrow” a view of Art 8 in finding that the appellant’s removal was proportionate. It is contended that the judge focused unduly upon the relationship between the appellant and his partner and that she was not his spouse and that they had no children. Ms Knight referred me to the appellant’s witness statement at para 6 and that of his girlfriend at paras 2 and 3 where both discuss the impact upon each other if the appellant were removed. The evidence speaks to a mutual support, both suffering from emotional issues, and that they have the intention to form a long-term relationship including marriage and children.
47. I do not accept that the judge erred in law in this regard. The judge plainly had well in mind the relationship between the appellant and his partner and, it was the nature of that relationship, that led the judge to find that “family life” existed between them despite the fact that they did not live together. At para 58, the judge said this about their relationship, albeit in the context of whether there were “unjustifiably harsh consequences” that would follow if he were removed:
“58. … I repeat all my previous findings. They have not and do not live together akin to marriage or civil partnership. They are not dependent upon each other (beyond emotional support). For a significant part of their relationship they have been unable to meet in person and/or stay overnight with each other. They see each other at weekends only. For the very significant length of time that they have been apart their relationship has relied on social media and other means of communication to continue. Whilst the Appellant’s girlfriend has her own mental health issues she has been able to manage only seeing the appellant at weekends and has friends and family to support her on a daily basis and will be willing to come to see her in London if he needed help. She has the security of knowing she can go home at any time for support.”
48. Then, at para 59 the judge continued:
“59. I[t] would be a matter for her if she decided to take a break in her studies to go with the appellant to Mauritius for a temporary period (to see if she liked it and could integrate) whether she remained in the United Kingdom. If she remained here, from the findings I made in this case, I am not satisfied that unjustifiably harsh consequences would result to either the appellant or his girlfriend. I am not satisfied that their relationship could not continue using the social media, video calls and other means of communication as it has continued in the past for significant periods of time using those same means of communication. There is no reason why she could not visit him there.”
49. As I have said, it is plain that the judge took into account the evidence concerning their relationship. He set out the evidence at paras 44 – 46 as follows:
“44. The Appellant met his girlfriend in December 2019 just before the first national lockdown in March 2020. She then lived in Liverpool and he in Cardiff. There was no, or no persuasive, evidence before me that they shared a ‘bubble’ or were members of the same household when the full lockdown in March 2020 and then the further full lockdown came into effect. That means that during those full, and subsequent partial lockdowns, the Appellant and his girlfriend would not have been able meet and would not have been able to stay overnight together at their respective addresses. She now attends university in London and he still lives in Cardiff. They see each other at weekends and rely on social media to remain in touch when they are apart.
45. The significance of the lockdowns is that at the very start of the relationship, when it was in its infancy and was most precarious, the Appellant and his girlfriend were not able to meet in person for very significant lengths of time but were able to maintain and build upon their relationship using social media and other means of communication whilst being apart.
46. The Appellant is not the spouse of his girlfriend, is not her civil partner, fiancé or proposed civil partner or a person who had been living with her in a way akin to marriage or civil partnership for at least two years prior to the date he made his application to the Home Office. The appellant is not dependent on his girlfriend and she is not dependent upon him. “
50. I am in no doubt that, having set out the evidence, the judge fully considered the circumstances of the appellant and his girlfriend if he were removed to Mauritius.
51. To the extent that the grounds contend that the judge looked no further than that, it is also plain that the judge considered the appellant’s private life in the UK. At para 56, he said:
“He has strong life and social skills as evidenced by the community activities he undertakes and the voluntary work he does.”
52. Then, at para 60 the judge said:
“Finally, I note the community and voluntary activities undertaken by the appellant but he evidence before me does not demonstrate that if he returned to Mauritius there would be an ‘irreplaceable loss to the community of the United Kingdom, or a significant part of it’ as per the test in the appeal case of Thakrar (Cart JR; Art 8; value to community) [2018] UKUT 336 (IAC).” (emphasis in original)
53. The judge clearly had well in mind the appellant’s evidence about his sporting activities, in particular in relation to football, which he sets out in both his witness statements and his volunteering in community work involving the homeless (see e.g., paras 8 – 11 of his witness statement dated 18 October 2021).

54. One final point, raised in para 11 of Ms Knight’s skeleton argument, is that the judge failed to consider why the appellant’s parents and his younger sister had been granted leave. The judge noted they had been granted leave at para 42 of his decision. It would seem that is not the case for his elder sister.

55. Ms Knight did not draw to my attention any material before the judge about why they had, as opposed to the appellant (and perhaps also his elder sister), been granted leave. The bundle contains documents showing a grant of 30-months leave on 20 October 2021 valid to 14 April 2024 to the appellant’s father and, it would seem, his mother and younger sister. The basis of that grant(s) is not made clear although reference is made to the father’s “family life” and his “mental health issues” at least in the context of communication the decision.

56. The appellant’s sister is 2½ years younger than the appellant. The precise circumstances that were the basis for the grant of leave remains obscure. But, there was an obvious difference. As the judge effectively found, there was no family life between the appellant and his parents and sister and it would seem that the grants of leave were premised on “family life” existing between his parents and, with them and his younger sister.

57. It is difficult to see, given the limited evidence, what more the judge could have made about the differential in treatment by the Home Office of the appellant compared to his family. The point was, of course, that they could remain in the UK if he were removed. The judge did not suggest they should (or would) return to Mauritius with him. The judge was satisfied other family and friends and the appellant’s own endeavours (together with his partner if she returned with him) would provide him with support on return (see para 56). The judge, therefore, factored in adequately and sufficiently his family’s immigration status in the UK in reaching the adverse finding on proportionality.
58. Consequently, for the above reasons, I do not accept the submissions that the judge employed too “narrow” a view of Art 8 and failed fully to consider the appellant’s private and family life in the UK and the impact upon it if he were returned to Mauritius. I reject Ground 3.
Ground 4
59. Finally, Ms Knight submitted that the judge had failed properly to consider the public interest issues raised through s.117B of the NIA Act 2002 in paras 61 and 66 of his decision.
60. The focus of Ms Knight’s submissions in relation to s.117B was to 117B(3) and (4). However, it will be helpful if I set out s.117B(1) – (4) in full. These are considerations which a court or tribunal must have regard to in determining the public interest question under Art 8.2 (see s.117A(2) and (3)). So far as relevant, therefore, s.117B provides as follows:
“117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.”
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
….”
61. The judge dealt with the “public interest” question in paras 61-62 and 65-67 in particular. He said this:
“61. Looking now at the Article 8 claim outside of the rules. I first must give consideration to section 117B as quoted in paragraph 28 above. Bringing all of my findings into that consideration I find that 117B(2) is neutral in the weight given to the fact that the Appellant speaks English. No meaningful weight can be given to 117B(3) because the language in that section is in the present tense and the Appellant is not financially independent. I give little weight under 117B(4) to the private life of the Appellant because it was formed at all material times when the Appellant has not been in the United Kingdom lawfully. I give little weight under 117B(4) to the relationship he has with his girlfriend because that was formed at all material times when the Appellant has not been in the United Kingdom lawfully. 117B(5) is not applicable because the Appellant has never had lawful immigration status to be in the United Kingdom.
62. I have given substantial weight to the public interest factor of their being maintenance of effective immigration controls as per section 117B(1).
….
65. In assessing proportionality, I have adopted the balance sheet approach.
66. The elements that weight against the Appellant[] remaining are:
(a) S.117B provides that the maintenance of effective immigration control is in the public interest. I place significant weight upon the principle of legitimate and effective immigration control.
(b) The Appellant came to the UK, and stayed here, with no expectation that he would be allowed to remain. At all times he has had no lawful right to remain here.
(c) The Appellant cannot satisfy the grounds of the Immigration Rules.
(d) S.117B(4) – I have given little weight to the Appellant’s private life because at all times it was formed and continued at a time he had no lawful right to be in the United Kingdom.
(e) S.117B(4) – I have given little weight to the Appellant’s family life because at all material times it was formed and/or continued at a time he had no lawful right to be in the United Kingdom.
(f) I have further found that his family life and relationship with his girlfriend could continue if he were in Mauritius and she remained in the United Kingdom.
(g) I have found that the Appellant would be able to integrate into Mauritius within a reasonable period upon return. I found that the Appellant is of working age and is capable of work upon return.
(h) I have found the appellant would be able to access suitable medical treatment within Mauritius should he need it.
67. The following factors weigh against the Appellant[‘s] removal:
(a) The Appellant speaks fluent English.
(b) I have found the Appellant has a private life in the UK. However, as set out above, I find that this private life has been established while the Appellant had no lawful right to remain in the United Kingdom and accordingly little weight can be attached to this private life pursuant to s.117B(4).
(c) I have found that the Appellant does have a family life within the UK that was formed at a time when he has been here unlawfully but, as set out above, I have also found that this can be preserved either by his partner going with him to Mauritius or by her remaining in the United Kingdom on a temporary or permanent basis. Little weight was therefore attached to that family pursuant to s.117B(4).”
62. Then, having directed himself to strike a “fair balance between the rights of the individual and the interests of the community” (at para 64), the judge found at para 68 – 69 that the public interest outweighed the factors in favour of the appellant and that the decision did not breach Art 8 of the ECHR.
63. I will first deal with the issue of s.117B(3) raised in the grounds and, to some extent, relied upon by Ms Knight in her oral submissions. The criticism is that the judge found that the appellant was “not financially independent” although he had earlier criticised the appellant for not providing evidence of his dependence on his parents but had accepted that the appellant lived with his family.
64. It is clear, following the Supreme Court’s decision in Rhuppiah v SSHD [2018] UKSC 58 that an individual will be “financially independent” even if they are supported by third parties (such as parents) provided that they are not dependent on the State (see [55] per Lord Wilson). Ms Knight acknowledged that she was not in a position, based on the material available to her, to indicate whether the appellant was, or was not, in receipt of state funds. The evidence was, however, no more than he was not dependent upon his parents, certainly financially. In those circumstances, I am not persuaded that any legitimate complaint can be made of the judge’s finding in para 61, given the state of the evidence, that the appellant had not established that he was “financially independent”. That would mean, correctly, that the public interest in s.117B(3) was engaged.
65. That, at least, is one reading of what the judge said in para 61 but, equally, when he said: “No meaningful weight can be given to 117B(3) because the language in that section is in the present tense and appellant is not financially independent” may have meant that the judge did not consider that the public interest in s.117B(3) was engaged. If that is so, and it may be difficult to reconcile with the absence of any evidence that the appellant was financially independent, any error would be in the appellant’s favour if the judge did not taken into account (i.e. given any “meaningful weight”) to the public interest in removal engaged by s.117B(3).
66. Turning then to s.117B(4), there is no doubt that the appellant has been unlawfully in the UK since he arrived aged 13. He was, of course, at that time a minor. Ms Knight submitted that the judge, in applying the “little weight” provision, failed to have regard to that fact.
67. In Rhuppiah, the Supreme Court recognised that the provisions in s.117B, in particular the “little weight” provisions in ss.117B(4) and (5), permitted a “degree, no doubt limited, of flexibility”. So, at [36], Lord Wilson cited with approval from the judgment of Sales LJ in the Court of Appeal:

“36. In para 45 of his judgment in the present case Sales LJ recorded that it was
“… common ground that the starting point for consideration of the proper construction of Part 5A of the 2002 Act is that sections 117A-117D … are intended to provide for a structured approach to the application of article 8 which produces in all cases a final result which is compatible with, and not in violation of, article 8.”
This remains common ground; and it is clearly correct. But, insofar as the legislation is intended in all cases to produce a result compatible with the article, we will need to find somewhere within it provision for a degree, no doubt limited, of flexibility.”
68. Then, at [49], Lord Wilson, referring to s.117A(2)(a) of the NIA Act 2002, said:

“49….But, as both parties agree, the effect of section 117A(2)(a) is clear. It recognises that the provisions of section 117B cannot put decision-makers in a strait-jacket which constrains them to determine claims under article 8 inconsistently with the article itself. Inbuilt into the concept of “little weight” itself is a small degree of flexibility; but it is in particular section 117A(2)(a) which provides the limited degree of flexibility recognised to be necessary in para 36 above. Although this court today defines a precarious immigration status for the purpose of section 117B(5) with a width from which most applicants who rely on their private life under article 8 will be unable to escape, section 117A(2)(a) necessarily enables their applications occasionally to succeed. It is impossible to improve on how, in inevitably general terms, Sales LJ in his judgment described the effect of section 117A(2)(a) as follows:
“53. … Although a court or tribunal should have regard to the consideration that little weight should be given to private life established in [the specified] circumstances, it is possible without violence to the language to say that such generalised normative guidance may be overridden in an exceptional case by particularly strong features of the private life in question …””
69. That approach, in my judgment, permits a judge to apply flexibly (maybe, in fact, disapply) s.117B(4) where the individual was a minor and, therefore, not in a position to be held accountable or blamed for being unlawfully in the UK. That, of course, was the appellant’s position until May 2018 when he became 18 years of age. Prior to that he was a minor and had, in effect, followed his parents to the UK when claiming asylum.
70. However, the judge noted, correctly, that when the appellant formed his “family life” with his partner in December 2019, he was 19 years of age. He had ceased to be a minor and, in those circumstances, it was not Wednesbury unreasonable or irrational for the judge to apply the “little weight” provision in s.117B(4) to the relationship he then formed with his partner.
71. In relation to the appellant’s private life more generally, of course, that began at the time when he was a minor. However, the substance of his private life in the UK, on the basis of his evidence, was his sporting activity and community work. Certainly the latter looks like it occurred (at least much of it) when he was an adult. In any event, in truth, the appellant’s private life in the UK was not a particularly strong factor to support a conclusion that his removal to Mauritius would result in “unjustifiably harsh consequences” sufficient to outweigh the public interest.
72. Stepping back from the judge’s decision and looking at all the circumstances, including the “balance sheet” set out by the judge, the strength of the appellant’s claim, despite having been in the UK since 2013 when he was age 13 years old, was not such that I am persuaded that any point raised in the appellant’s favour amounted to a material error so as to make the judge’s ultimate finding that the appellant’s removal would be proportionate and sustainable in law. I reject Ground 4.
Decision
73. For the above reasons, the decision of the First-tier Tribunal to dismiss the appellant’s appeal did not involve the making of a material error of law. That decision stands.
74. Accordingly, the appellant’s appeal to the Upper Tribunal is dismissed.

Signed

Andrew Grubb

Judge of the Upper Tribunal
22 March 2022

TO THE RESPONDENT
FEE AWARD

Judge Dorrington made no fee award. That decision also stands.

Signed

Andrew Grubb

Judge of the Upper Tribunal
22 March 2022