Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: PA/12530/2016

THE IMMIGRATION ACTS

Heard at Taylor House
Decision & Reasons Promulgated
On 22nd of March 2017
On 12th of April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

Mr BUJUPI EDon
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Smyth legal representative – Keser and Co, solicitors
For the Respondent: Ms Holmes - a Home Office presenting officer

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Kosovo born on 2 December 1998.
2. In this decision, I will refer to the parties by their designations before First-tier Tribunal (FTT).
3. It appears that there are two appeals against the decision of the FTT Judge Lucas (the immigration judge) promulgated on 11 January 2017. The first, in the order in which the grounds were settled, was by Mr Bramble on behalf of the respondent on 24th of January 2017.The second was settled by Mr Smyth on behalf of the appellant, on 25th of January 2017. Unfortunately, although both applications for permission came before Judge of the First-Tier Tribunal Grant-Hutchinson on 3 February 2017, there is no reference in the grant of permission to the other party’s appeal and thus to the fact that Judge Grant-Hutchinson considered both the respondent’s and the appellant’s grounds of appeal is not clear on the face of the grant of permission in either case.
4. Both appeals criticised different aspects of the immigration judge’s decision.
5. The appellant was given permission by Judge Grant-Hutchinson to appeal to the Upper Tribunal (the UT) against the decision of the First-tier Tribunal (FTT). Specifically, Judge Grant-Hutchinson gave the appellant permission to appeal against the immigration judge’s decision to dismiss his appeal against the respondent’s refusal to grant the appellant protection based on his private or family life inside the Immigration Rules. The immigration judge allowed his appeal under article 8 of the European Convention on Human Rights (ECHR). In the appellant’s grounds of appeal the immigration judge was criticised by the appellant for failing adequately to consider the risk to the appellant on return. The immigration judge had erred in finding that the appellant would be able to internally relocate when there was a decision of an earlier judge to the effect that the appellant would be at risk in doing so, given that the appellant had only recently attained his majority. Secondly, it would, in Judge Grant- Hutchinson’s opinion, have been artificial to say that the risk he faced as a child suddenly ceased when he became an adult. The immigration judge was also criticised for failing to give adequate reasons for saying why the appellant would not face a serious risk of serious harm to his home area contrary to article 3 of the ECHR and failing to consider the psychological factors affecting the appellant.
6. The respondent, on the other hand, criticises the immigration judge for his decision under article 8. The grounds point out that the immigration judge had made reasoned findings in paragraphs 48 – 51 for dismissing the application under paragraph 276 ADE of the Immigration Rules. However, the judge appeared to ignore those findings when he came to make his decision in relation to article 8. It is also contended in the respondent’s grounds that there were in fact no compelling circumstances for allowing the appellant’s appeal under article 8. A number of factors were highlighted in support of that submission.
7. It was also said that the immigration judge erred in the extent to which he considered the appellant’s wider family and their children in the UK. In particular, the immigration judge was criticised in his conclusion at paragraph 55 his decision, for taking into account the appellant’s wish to attend university. This appeared to be based on the immigration judge’s perception of his wider benefit to the community. It was argued that neither this nor the other reasons given by the immigration judge were, in reality, compelling circumstances at all, when one looked at the relevant case law and other guidance. The immigration judge had found (at paragraph 48) that the appellant did have a supportive family in the UK and (at paragraph 49) that he had received a good education here but those factors tended to the conclusion that there were not very significant obstacles to the appellant’s reintegration into life back in Kosovo.
8. In addition, the immigration judge had failed to consider the wider public interest under section 117 A – D of the of the Nationality, Immigration and Asylum Act 2002 (2002 Act). It is contended in the grounds that the appellant’s immigration status was “precarious" and therefore an appropriate balancing exercise was called for. The immigration judge had arguably not undertaken this.
9. Judge Grant-Hutchinson thought that the respondents grounds were also arguable, pointing out that a proportionality exercise under article 8 had to have due regard to section 117B of the 2002 Act, which sets out a number of public interest considerations applicable to “all cases".
Background including immigration history
10. The appellant claims to have entered the UK on 1 September 2013 and claimed asylum on 30 September 2013. That was refused on 31st of January 2014 but he was granted discretionary leave to remain in the UK until 2 June 2016. The appellant appealed the refusal of asylum on 11 February 2014 but the appeal was dismissed on 25 March 2014. The appellant exhausted his appeal rights on 7th of April 2014 but made an application for further leave to remain 19 May 2016. This was refused on 26 October 2016. This was the respondent’s decision against which the appellant appealed to the FTT in the appeal under scrutiny.
11. The earlier decision referred to was taken by Judge of First-tier Tribunal Cockrill (Judge Cockrill) following a hearing at Taylor House on 11 March 2014. That appeal was against the respondent’s decision on 31 January 2014 to refuse to grant asylum under paragraph 336 of the Immigration Rules HC 395, as amended. The decision of the Secretary of State to refuse asylum was for reasons set out in her letter dated 29 January 2014. In his decision, Immigration Judge Cockrill went into some detail as to the appellant’s home circumstances. In paragraph 24 Judge Cockrill stated that the appellant had been living with his mother and brother Sevdaim. The appellant claimed to be a victim of domestic abuse and violence at the hands of Sevdaim, who was his elder brother. He claimed that he could not tolerate this situation any further and therefore had to flee this violence. Judge Cockrill accepted that the appellant had suffered some physical mistreatment and bullying at the hands of his brother but he was ‘unduly sensitive’ and there was nothing in the factual circumstances to persuade Judge Cockrill that the appellant could not be safely returned to Kosovo. The Judge Cockrill was not satisfied the appellant had demonstrated to the low standard to which his claim had to be proved that Sevdaim would have any ongoing hostile intent towards him but in any event the appellant could be physically separated from him and the respondent would not be b given the size of reaching her international obligations by returning him to Kosovo. The appellant could stay safely with his relatives nearby in Pristina.
12. It seems that the respondent’s decision made of 26th of October 2016 was in response to an application contained in a letter from Keyser and Co, his solicitors, following the expiry of the period of discretionary leave on 2 June 2016. In a letter, dated 19 May 2016, that firm sought to rely on asylum grounds, human rights grounds and specifically on the basis of the appellant had built up a "significant family and private life UK" and it would be a “violation of these rights to return him to Kosovo”. An application was enclosed dated 4 May 2016, which provides little more evidence then that contained in the letter. However, there were supporting documents indicating the appellant was doing well within the British education system and had settled down with his brother and sister-in-law living in Canterbury, Kent. His sister in law had become a British citizen.
13. The decision is therefore taken on both asylum grounds and under the ECHR. It is also necessary to consider whether the appellant qualifies for humanitarian protection under paragraphs 339F – 339N of the Immigration Rules. The respondent went on to consider the claim under the relevant provisions of the Immigration Rules, namely, appendix FM paragraphs 276 ADE (1) to 276CE of those rules. The Respondent then considered appellant’s family and private life and asked whether the appellant satisfied the requirements of article 8.
14. The respondent concluded that although the appellant had built up a significant family and private life in the UK, did not consider articles 2 and 3 to be engaged, noting that these have been fully considered by the tribunal which dismissed his appeal in the decision promulgated on 26 March 2014. Given the comprehensive findings of Judge Cockrill on that occasion, the respondent did not consider the appellant’s rights either articles 2 or 3 of the ECHR would be breached if he was returned to Kosovo. She also considered that the appellant’s right to a private or family life were fully covered by the relevant Immigration Rules quoted above. The appellant did not have a partner or child in the UK and his private life was not such duration as to engage the requirements of paragraph 276 ADE by reference to the Immigration Rules. The appellant had established friendships in the UK, but it was considered that he could maintain contact with his friends from afar. There were no exceptional circumstances which justified considering his right to respect for private and family life outside the Immigration Rules. Respondent gave due consideration to the requirements of the Borders, Citizenship and Immigration Act 2009, but although the appellant had spent some time in UK he had not spent his formative years in Kosovo, indeed, the appellant had spent in the bulk of his life Kosovo. The appellant spoke Albanian and it was considered appropriate for him to preserve his cultural identity by returning to that country. The respondent also considered whether there were any compassionate circumstances that justified a departure from the strict requirements of the Immigration Rules. However, that there was nothing to justify the grant of leave outside the Immigration Rules.
15. The immigration judge also paid due regards to findings of Judge Cockrill, noting that there have been a full consideration of the complaint in relation to ill-treatment suffered by the appellant at the hands of his brother. Any risk presented by contact with that individual was fully dealt with by Immigration Judge Cockrill at the earlier hearing. It was therefore bizarre that the immigration judge had gone on to allow the appeal under article 8. The reasons he gave for reaching that decision were confused, hence the current appeal by the respondent. I will now turn similar submissions made at the hearing, and analysis of the decision of the FTT by the immigration judge and the correct disposal of the pet present appeal to the UT.
The hearing
16. At the hearing Mr Smyth appeared for the appellant and Ms Holmes for the respondent. I allowed Ms Holmes to address the tribunal first. She said that the immigration judge reached inconsistent findings, deciding at paragraph 50 that there were no very significant obstacles to his integration into life back in Kosovo and that the lack of accommodation or employment prospects would not, in themselves, amount to very significant obstacles to doing so. However, the immigration judge then went on (in paragraph 56) to reject the need in the public interest to ensure efficient and effective immigration control over the needs of the appellant, having regard to the disruption to his private and family life, including his family life with his extended family. Ms Holmes particularly relied on the case of SS Congo in which it was held that the tribunal is required to give proper weight to the requirements of the Immigration Rules. I note that case has recently been considered by the Supreme Court [2017] UKSC 10 which upheld the decision of the Court of Appeal. Ms Holmes referred me to paragraphs 40, 48 – 51 of the decision of the FTT in this case and pointed out that the immigration judge had given no proper weight to the requirements of the Immigration Rules and the fact that the appellant did not meet those requirements. She also took issue with the fact that the immigration judge appeared to suggest at paragraph 50 of his decision that because the appellant had adjusted to life in the UK that did not mean he could not readjust to life back in Kosovo. There was a clear finding in paragraph 50 that there were “no very significant obstacles” to his return to Kosovo, which was fundamentally inconsistent with the finding in paragraph 56 and 57 that this was a case, exceptionally, which should be allowed under article 8 of the ECHR. There were in truth no very significant obstacles to the appellant’s integration into life back in Kosovo. Because of the inconsistent findings and the poor reasoning I was invited to set aside the decision of the FTT under article 8/the Immigration Rules and re-decide the matter.
17. I then heard from Ms Mr Smyth who said that:
1) the judge was wrong to dismiss the appeal under the Immigration Rules because there were in fact very significant obstacles the appellant’s reintegration into Kosovo;
2) there was no error in relation to the decision under article 8 because of the strong family life the appellant has established in the UK;
3) there was a real risk to the appellant in his home area which was sufficient to require the appellant to be given international protection even if there was potentially a safe place to which he could settle in Kosovo.
18. Mr Smyth then expanded on these points explaining that the immigration judge had not reached inconsistent findings, in his view. He accepted that his client was aged 18 by the date of the hearing before the immigration judge but he received significant support from his family. I was particularly referred to Laura Langley’s witness statement. The appellant had come to the UK as a small boy at the age of 13. He had been substantially brought up by other family members, rather than depending on social services. He had a close relationship with the extended family, including nephews, nieces and other relatives. His relationships with these individuals clearly went beyond emotional ties. I was then referred to paragraph 276 ADE of the Immigration Rules. One of the very significant obstacles to the appellant’s safe return to Kosovo was that he was still in a traumatised state. Whilst there was no medical evidence to support this claim, I did have evidence from his family and in particular Laura Langley’s witness statement (at page 7 of the appellant’s bundle produced at the FTT hearing). This refers to the appellant as “grinding his teeth” at night and the need for a mouth brace to stop him doing this. The appellant was very significantly affected by his experiences in Kosovo. The outcome of this decision would have an impact on others including minor children in the appellant’s extended family. In summary:
1) there was no error of law in relation to the article 8 assessment;
2) there was an error of law on the failure to assess Laura Langley’s evidence and conclude that there were in fact very significant obstacles to the appellant’s safe return to Kosovo which meant that the appellant qualified under paragraph 276 ADE of the immigration rules; and
3) I was invited to find that the tribunal could conclude that the appellant’s brother had a significant and a sufficiently malignant influence on the appellant for it to be unreasonable to return the appellant to Kosovo. The case surmounted the hurdle of establishing that article 3 of the ECHR was engaged. The respondent had not challenged the extent of the quality of family life in the UK and implicitly had accepted that the appellant was not likely to be a burden on public funds here. There were no adverse points taken against the appellant and at no stage was it suggested that his case had been fabricated.
19. By reply, Ms Holmes said that there was nothing in the grounds which supported a finding that article 3 of the ECHR was engaged. Ms Holmes recognised the force of finding an error of law in relation to article 8 of the ECHR and paragraph 276 ADE of the Immigration Rules.
20. Having retired for approximately 15 minutes I decided that there was a material or potentially material error of law in the decision of the FTT. I had already canvassed the parties the need for me to remake the decision based on the evidence as found by the FTT, which was not essentially in dispute. I asked the parties whether they had any supplemental submissions before I went on to remake the decision. Mr Smyth said that article 8 claims are “fact sensitive”, that the respondent did not essentially challenge the evidence that the appellant had been in the UK since he came here as the age of 13 as a dependent child, that he had recently turned 18 and that he would find it hard to return to Kosovo. He recognised that modern communication between the appellant and his family in the UK could be maintained by emails and telephone calls but these were no substitution for proper and regular contact with the various family members. I was urged to consider the wider interests of the family including the younger children of the appellant’s brother and others. Very significant obstacles existed to the appellant’s reintegration into Kosovo. I was invited to find that paragraph 276 ADE was satisfied as well as article 8.
21. Ms Holmes did not have any additional submissions.
Discussion
22. It is clear from the case of SS Congo [2015] EWCA Civ 387 and [2017] UKSC 10 that it is only in cases where there is a substantial gap between the requirements of the Immigration Rules and the requirements of international human rights law, as incorporated into the ECHR, that it is necessary for a court or tribunal to directly apply article 8. The new Immigration Rules contained in appendix FM and paragraph 276 ADE are intended to be a complete code in the sense that they represent respondent’s attempt to balance the needs of state and the needs of the individual. If a family wants to come to the UK or continue family life in the UK he is expected to satisfy the requirements of those rules of those rules. The cases before the Court of Appeal and, subsequently, the Supreme Court in SS Congo included cases where the applicant had come close to satisfying the requirements of rule, the so-called “near miss” cases. The interference with a person’s protected human rights had to be justified by the circumstances and the burden rested on the respondent to show that. Where the requirements of the relevant rule were not fulfilled the fact that an applicant was able to say that he nearly satisfied the requirements of the rules did not help him. It would be an error of law to decide a case merely because it came close to satisfying the requirements of the rules. In the event, a number of the cases before the Court of Appeal and Supreme Court did not satisfy or come close to satisfying the rules.
Conclusions
23. I have concluded that the decision of the FTT appellant’s appeal under article 8 contains a material error of law in that the immigration judge made inconsistent findings and failed to apply the guidance contained in authorities such as SS Congo properly to the facts of this case.
24. I have considered whether it is necessary to hold a further hearing to address the issue of ultimate disposal. However, having heard representations by both parties and having regard to the full and comprehensive findings have now been made by two tribunals in 2014 and 2016 I do not consider it necessary and proportionate to do so. Both parties appeared to accept that position.
25. The claim under the the 2014 Refugee Convention and under article 3 faces the problem that comprehensive findings were made against the appellant by Immigration Judge Cockrill in 2014. Judge Cockrill concluded that the appellant neither qualified for asylum nor, implicitly, would he qualify for humanitarian protection, although his brother had been a violent individual. Kosovo had become a democratic country which offered protection from the police to persons such as the appellant. There was no real risk of persecution or inhuman and degrading treatment in Judge Cockrill’s view. The appellant was found to have suffered some mistreatment and bullying at the hands of his brother but these were not sufficient to require the appellant to be given international protection because the appellant had not successfully demonstrated that his brother Sevdaim would track him down and persecute him. In Immigration Judge Cockrill’s view, the appellant could go and live with one of his two sisters in Pristina where they have who have their own families.
26. The case before the immigration judge in the 2016 appeal was to some extent a repeat of the case before Judge Cockrill. If anything, the reasons given by Judge Cockrill are stronger today than they were in 2014. The appellant is now an adult and significant time has elapsed since he saw his brother. Notwithstanding the adverse findings made by the FTT in the earlier case, the appellant still maintained he would suffer serious harm at the hands of his brother, stating this was a vulnerable individual with no safe place to relocate. Mr Smyth conceded before the FTT that the appellant did not qualify as a refugee but maintained nevertheless that he was entitled to the protection of article 3 of the ECHR, alternatively, the case itself to be decided outside the Immigration Rules under article 8. His final plea was that his client qualified under paragraph 276 ADE of the Immigration Rules, which states that where a person has lived in the UK for less than 20 years but had established a private life in the UK, he would qualify for leave to remain. If the appellant was to succeed under the Immigration Rules, Mr Smyth accepted that he would need to show that there were “very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave UK". He contended that his client was a person he would face such obstacles.
27. I disagree for following reasons:
1) The appellant is now an adult having entered the UK as a minor and having been in the UK since 2013;
2) Although he has become absorbed into the English education system, the qualifications he gains will be of use to him in Kosovo which has a growing economy;
3) He would be culturally assimilated there as he speaks the language, having spent his formative years in that country. He also has several relatives in Kosovo to whom he could turn for support.
28. I fully take account of the evidence supplied on his behalf from Laura Langley and others. This was fully appraised by the immigration judge in his decision. However, I do not consider that there was adequate evidence to show that there would be very significant obstacles to prevent the appellant returning to Kosovo. As a young man who speaks the Albanian language, with good educational skills he would be well qualified to take advantage of the opportunities available to him there. He is presently unattached and there is no reason to suppose would not be able to resume his former life, albeit that there will be some disruption consequence upon his removal from the UK. Accordingly, I have concluded there are no very significant obstacles to the appellant’s reintegration into Kosovo society.
29. I have therefore concluded:
1) The appellant does not qualify as a refuge as appears to be conceded:
2) The appellant would not suffer inhuman and degrading treatment nor his life is in danger for the reasons set out in both the earlier decisions of the FTT;
3) This is not an exceptional case where the immigration judge should have embarked on a freestanding assessment of the appellant’s human rights. The right to a private or family life was comprehensively considered in paragraph 276 ADE;
4) The appellant did not qualify under that provision because there were no very significant obstacles to his reintegration into Kosovo.

Decision
30. I have found a material error of law in relation to article 8/the decision under the rules, but no material error of law in relation to the decision in relation to article 3 of the ECHR. I am re-making decision under article 8 and making a decision under the immigration rules as the immigration judge did not make clear decision, leaving it absent from the “notice of decision” part of his written decision.
31. My decision is as follows:
1) The appellant’s appeal against the respondent’s refusal both under article 8 of the ECHR and under the Immigration Rules is hereby dismissed.
32. I make no anonymity direction in this case.

Signed W.E. Hanbury
Date 5 April 2017
Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD
The appeal has been unsuccessful and I therefore make no fee award.

Signed
Judge Hanbury
Judge of the First-tier Tribunal