Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-000209

First-tier Tribunal No: PA/50561/2023
LP/02253/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 13 March 2025

Before

UPPER TRIBUNAL JUDGE GREY
DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

CO
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms. V. Easty, Counsel instructed by Tower Hamlets Law Centre
For the Respondent: Ms. A. Everett, Senior Presenting Officer

Heard at Field House on 4 March 2025

DECISION AND REASONS

1. In a decision promulgated on 13 January 2025, an error of law was found in the decision of the First-tier Tribunal promulgated on 8 December 2023 in which the appellant’s appeal against the decision to refuse her protection and human rights claim was dismissed. A copy of that decision is annexed below and the contents of which will not be repeated. This is the re-making of the appellant’s appeal in respect of her Article 8 human rights claim.
The hearing and evidence
2. A supplementary bundle of documents was submitted in advance of this hearing containing: an updated witness statement from the appellant; witness statements from four of her friends; documentation relating to the appellant’s recent accommodation and receipt of asylum support; medical evidence; letters from churches the appellant has recently attended; and, documentation relating to the appellant’s award of damages for personal injury arising from a road traffic incident in 2009 in which the appellant was knocked over by a bus and sustained a head injury.
3. At the hearing we heard oral evidence from the appellant and her friend, Chioma. Another friend, Edward, was available to give evidence via CVP but the Tribunal experienced technical problems and it was not possible to connect him to the hearing. The appellant was recalled so that Ms Everett could put further matters to the appellant arising from Edward’s witness statement.
4. The appellant was cross-examined by Ms Everett and further questions were put to her by the Tribunal. She has not had contact with her sister in Nigeria for the last year. Her sister is around five years older than her. She last tried to call her about one month ago. She is very worried about her and doesn’t know what has happened. She has not asked any of her friends or the church to help her try and find out what has happened to her sister.
5. The appellant is currently living in accommodation in Clacton-on-Sea organised by the Home Office since she is in receipt of asylum support. She goes to the Baptist church in the area. Prior to this she was accommodated by a homeless charity, the Single Homeless Project, after she had been found living on the street. She receives some financial support from her friend Chioma, who gives her small amounts of cash and food. The appellant went to school with Chioma’s mother in Nigeria.
6. She visits her friend Edward and his family. He sometimes gives her food and occasionally buys things for her that she needs. Sometimes Edward and his family pick her up and take her to church with them. She is from the same tribe as Edward but he is from the ‘other side’ of Nigeria. He would not be able to help her make enquiries regarding her sister as he is from a different part of the country.
7. The appellant referred to her declining health and stated that her mobility has got worse as she now regularly experiences balance problems. She has been told that she is now ‘pre-diabetic’.
8. Chioma confirmed that the appellant had spoken about her sister and that she hasn’t been able to contact her. Chioma had spoken to her mother who is in Nigeria but she doesn’t know anything about the appellant’s sister or where she is. She lives in a different part of the country. When discussing the appellant’s future with her, Chioma had told her it was best for her to remain in the UK because she was depressed, her medical conditions may deteriorate further, and there is no one to support her in Nigeria.
9. In submissions Ms Everett accepted that significant weight should be attached to the length of the appellant’s continuous residence in the UK. However, she reminded the Tribunal that although the appellant would now meet the provisions of the Immigration Rules on long residence if she made an application for leave to remain, that was not the case when she raised her asylum claim or when the respondent refused her protection and human rights claim.
10. In Ms Everett’s submission the appellant had not made any significant effort to find out what had happened to her sister in Nigeria or to seek assistance from her various friends or from her church to do so. The appellant had lived for 54 years in Nigeria previously which indicates she could reintegrate into life there on return. Although the appellant states that she would be destitute on return to Nigeria and would have nowhere to go, the evidence on this is not clear and the appellant has not made any meaningful investigation into the situation she may face on return, such as in relation to any pension entitlement. The lack of evidence on this is surprising and may indicate unreliability.
11. Ms Everett confirmed that it was accepted that Article 8(1) was engaged in respect of the appellant’s private life in the UK. However, in her submission, given the weight that should be attached to the public interest in immigration control, the interference with the appellant’s private life was proportionate.
12. Ms Easty made submissions in line with her helpful skeleton argument which we need not repeat in this decision.
13. We are grateful to both representatives for their helpful submissions and their sensitive and patient approach to the hearing and the questioning of the appellant.
14. At the end of the hearing we indicated that we would allow the appeal and now provide written reasons for our decision.
Analysis and decision
15. We found the appellant to be an honest witness who did not overstate her case. At times in oral evidence the appellant appeared to be a little confused and would tend to meander off topic at certain points. The appellant appeared to us to be vulnerable and fragile, and somewhat older than her 74 biological years. Perhaps this is to be expected from a person who has been involved in a serious accident and spent a number of years since her mid-60s without a home of her own, having spent periods of that time, into her 70s, sleeping on the street.
16. There was no challenge to the appellant’s evidence regarding her accident in 2009, her medical conditions, the situation with her nephew and subsequent homelessness, the support she has received from charities, the various friendships she has developed in the UK since she arrived and her church attendance.
17. We accept the appellant’s evidence that she has been unable to contact her sister over the last year. Her sister would be around 80 years old. We note the evidence given by the appellant to the First-tier Tribunal that her sister was widowed with no surviving children and was unable to feed herself or walk due to her diabetes. In the context of the appellant’s age and vulnerability, her difficult life and living circumstances, and the various day-to-day challenges she encounters, we do not find it particularly surprising that the appellant has not made further enquiries regarding her sister besides trying to ring her on the telephone herself.
18. We note the unchallenged finding of the First-tier Tribunal at [28] that “at best the appellant will have only accrued a pension for a year or two based on the dates the Nigerian government introduced the [state pension] scheme” and find it likely the appellant would face financial hardship on return to Nigeria even though the evidence before the First-tier was insufficient to establish a claim on the basis of a breach of Article 3 ECHR due to material deprivation.
19. It is accepted on behalf of the respondent that Article 8(1) is engaged on the basis of the private life the appellant has developed in the United Kingdom since she arrived in February 2005. This issue for the Tribunal to determine is whether the respondent’s refusal of the appellant’s human rights claim amounts to a disproportionate interference with that private life under Article 8(2).
20. As found by the Judge in the First-tier Tribunal, it is accepted that the appellant arrived in the UK on 17 February 2005 and has been continuously resident here since that time. She has now been continuously present in the UK for a period slightly in excess of 20 years.
21. It is accepted that the appellant did not meet the Immigration Rules in respect of long residence at the time of her claim or the respondent’s refusal decision.
22. The evidence before us indicates that the appellant has established a private life of some depth during her 20 years in the UK. She has built up a network of support with close friends. A number of the appellant’s friends state that they regard her as a member of their families, and she has known them for many years. The appellant is a regular church goer although has had to change churches depending on where she is living.
23. As stated above, we find that the appellant is a very vulnerable person. She has been dependent on the support of her close circle of friends as well as charities since she was made homeless and defrauded by her nephew some time around 2016. The fact that it was deemed appropriate for a litigation friend to be appointed on behalf of the appellant in her personal injury claim following her accident in 2009 is an indication of vulnerability issues at that time. Her nephew acted as her litigation friend and took control of the appellant’s £130,000 compensation. He then threw her out of her home and contacted the Home Office regarding her immigration status. The fact that she was taken advantage of by her litigation friend and a trusted family member is further evidence of her vulnerability.
24. Since the appellant was forced out of her home by her nephew she has stayed with friends, lived on the streets and been accommodated by a homeless charity and the Home Office. Her medical records indicate that she has long-standing mental health issues as well as a number of physical health problems which affect her mobility. We find that the appellant needs help and support in relation to aspects of her everyday life which are likely to increase with age. We do not accept that she would have any appropriate support available to her in Nigeria. The appellant’s only family member in Nigeria with whom she maintained contact is a sister who would now be close to 80 years old. The appellant has now lost contact with her. Even if her sister is still alive and was able to accommodate the appellant, and we make no findings that this is the case, it appears unlikely that a sister some five years older than her and with health issues of her own (according to the evidence before the First-tier Tribunal) would be in a position to provide the appellant with the care and support she is likely to require.
25. Although some of the appellant’s friends help her out with gifts of food and small amounts of money, these were described as “small amounts of change”. We find that the appellant would be unable to rely on any financial support from others if she returned to Nigeria and that any state pension which she may be eligible for there is likely to be very little.
26. Despite the fact the appellant lived for over 50 years in Nigeria and is familiar with the language, culture and social norms; her impecuniosity, vulnerability, her poor physical and mental health, and the lack of family and friends in Nigeria for support would, we find, present her with significant obstacles to her integrating into life in Nigeria. Even if the obstacles we find she would face did not meet the threshold of “very significant obstacles” for the purposes of the Immigration Rules, it is a compelling matter which we weigh in her favour in the Article 8 balancing exercise.
27. The following matters also weigh in the appellant’s favour in the balancing exercise:
a. The length of the appellant’s residence in the UK of over 20 years. We acknowledge that the appellant had not achieved 20 years continuous residence at the time she made her protection claim and when the respondent refused her protection and human rights claim and that there is no ‘near miss’ principle applicable to the Immigration Rules. However, the length of the appellant’s residence in the UK is a weighty factor because the respondent acknowledges through her policy that there comes a time when a person has lived so long in the UK that their private life should be given weight even though they have been in the UK unlawfully and/or with precarious status. We have regard to the statutory considerations directing that ‘little weight’ should be given to the private life the appellant has developed in the UK because the appellant’s stay in the UK has either been unlawful or precarious. However, we do give the appellant’s private life weight bearing in mind her length of residence and the respondent’s policy as referred to above.
b. The strength of the appellant’s friendships in the UK which provide her with a caring supportive network which would be difficult for her to establish and replicate in another country due to her vulnerability, including her declining ability to mobilise independently and get about and meet people.
c. Although the appellant’s financial outlook appears to be bleak at present there is a prospect of the appellant being able to take legal action whilst she remains in the UK to try and recover her personal injury compensation. We were advised and have seen documentation to confirm that the appellant’s legal advisors are presently taking steps to recover her money from her nephew. If they are successful, the appellant would be able to achieve financial independence from the state. Realistically, it would appear to us that there would be little or no prospect of the appellant being able to pursue recovery of her compensation from outside of the UK.
28. We consider the matters weighing against the appellant in the balancing exercise. In accordance with section 117B(1) of Nationality, Immigration and Asylum Act 2002 we acknowledge that effective immigration controls is in the public interest. However, we consider that the weight attached the public interest in this regard is significantly reduced in view of the length of the appellant’s continuous residence in the UK and respondent’s policy on long residence reflected in the Immigration Rules as referred to above.
29. In submissions, Ms Everett did not seek to rely to rely on any statutory factors beyond section 117B(1), including the matter of financial independence for the purposes of section 117B(3). This was perhaps in recognition of the fact that had the appellant not been defrauded by her nephew, she would have been able to live off her significant compensation and would have been financially independent of the state. Since Ms Everett did not seek to rely on this matter and because of the exceptional circumstances, we do not consider it appropriate to weigh against the appellant her current financial position.
30. Having carefully evaluated, and considered together and cumulatively, the considerations weighing against the appellant and in her favour, we reach the view that the factors in her favour are sufficiently compelling to outweigh the public interest in the maintenance of effective immigration control. We are therefore satisfied that it has been established that the respondent’s refusal decision amounts a disproportionate interference with the appellant’s Article 8 rights and is thus unlawful under Section 6 of the Human Rights Act 1998.
Notice of Decision
The appellant’s appeal is allowed on human rights grounds.

Sarah Grey

Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 March 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-000209

First-tier Tribunal No: PA/50561/2023

THE IMMIGRATION ACTS

Decision & Reasons Issue:

…………………………………

Before

DEPUTY UPPER TRIBUNAL JUDGE JOLLIFFE

Between

CO
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Valerie Easty, counsel instructed by Tower Hamlets Law Centre
For the Respondent: Ms McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 4 June 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and any member of her family is granted anonymity. 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 and her family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. The appellant has been granted permission to appeal the decision First-tier Tribunal Judge D Wright (“the Judge”) following a hearing which took place on 10 November 2023 and judgment which was promulgated on 8 December 2023.
2. Permission to appeal was granted by First-tier Tribunal Judge Burnett on 18 January 2024.
3. The Upper Tribunal regrets the delay in promulgating this judgment. The appeal was heard on submissions alone, with no oral evidence. I have a clear note of the submissions of both parties and also the material which was before the First-tier Judge. I reached my decision shortly after the hearing.

Anonymity
4. An anonymity direction was made previously by the Judge and is maintained.

Factual Background
5. The appellant is a national of Nigeria whose date of birth is 7 July 1951. On 25 July 2022, she made an asylum claim. The basis of that application was that she would be persecuted as a member of a particular social group because of being a victim of domestic violence. In particular, she said that she was afraid of her former husband, who had been abusive to her.
6. That application was refused by a decision dated 2 December 2022. The respondent accepted that the appellant was a Nigerian and that she was afraid of her former husband. The respondent considered that her credibility was damaged within the meaning of section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2004 because she had arrived in the United Kingdom in February 2005, had made an application for leave to remain on the basis of family and private life in September 2018 which was refused in December 2019. She had not claimed asylum until 25 July 2022.
7. The respondent considered that she would have access to state protection, and that she would be able to relocate internally. Her claim for humanitarian protection was rejected.
8. The respondent also considered whether the appellant was eligible for a grant of leave because of her Article 8 family and private life rights. It was considered that she did not have family life in the United Kingdom and there were no exceptional circumstances in her case to justify a grant of discretionary leave. In terms of her Article 8 private life rights, she did not meet the 20 year residence requirement of having lived for at least 20 years in the United Kingdom, and there would not be very significant obstacles to her reintegration into Nigeria. The respondent did not consider it was an appropriate case for a grant of discretionary leave.

The decision of the First-tier Tribunal
9. The Judge had to determine whether the appellant was entitled to a grant of humanitarian leave, and whether her Article 8 appeal should be allowed.
10. The Judge found that the appellant’s credibility was damaged by virtue of her late asylum claim and section 8, but that was only one factor to take into account in assessing her credibility and in assessing the claim. The Judge accepted her account that she had been the victim of domestic violence, but noted that she had lived for a further 26 years in Nigeria without trouble from her husband, and found there was no risk of further abuse. Furthermore, the Judge found that she had police protection and the possibility of internal relocation available to her.
11. The Judge also considered whether she would be at risk of experiencing deprivation which would breach her Article 3 rights, and took account of her financial and health situation before concluding that she would not discharged the evidential burden in relation to Article 3.
12. The Judge went on to consider the appellant’s Article 8 claim, noting that it was based on largely the same facts as her Article 3 claim. The Judge found that the appellant had been in the United Kingdom since February 2005 and that there was limited evidence of close or strong relationships formed in the United Kingdom, before commenting at paragraphs 42-43 that “The threshold to establish a private life solely on length of residence is 20 years, which is not quite met. As such I find that Article 8(1) is not engaged. For completeness, for the reasons given above I find that there would not be very significant obstacles to her reintegration into Nigerian society.”
13. On those bases the judge refused the appeal.

The grounds of appeal
14. The appellant sought permission to appeal on 2 grounds, which were that the judge had
a. reached an irrational conclusion on the Article 3 issues;
b. made a misdirection in relation to Article 8 and the 20 years residence period in that it is not necessary to have resided for 20 years for Article 8 to be engaged.
15. Permission to appeal was granted by Judge Burnett on 5 March 2024 on the second ground only. Having found that there was no irrationality in the Article 3 conclusion, he commented as follows
I grant permission on the Article 8 ground. The judge stated that without 20 years residence in the UK, article 8 is not engaged. This is an arguable error. The appellant cannot meet the private life rules but that does not mean that Article 8 is not engaged.
16. The respondent through her rule 24 response dated 26 January 2024 resisted the appeal. It was argued that Article 8 was a relatively minor part of the appeal – there had been no submissions on Article 8 as a standalone issue in the skeleton argument dated 14 April 2023, and the schedule of issues all related to the risk on return to Nigeria. The Judge’s unchallenged finding of fact was that the appellant had no relations in the United Kingdom, and there was limited evidence of strong ties of family or friendship.
17. The rule 24 response argued that the appellant’s case on her private life was very limited and she did not meet the long residency rules or the requirement to show very significant obstacles to her reintegration into Nigerian society. These conclusions were said to be entirely logical in the context of the very limited evidence.

The error of law hearing
18. Ms Easty for the appellant submitted that the Judge’s finding that Article 8 was not engaged was clearly wrong. He should have gone on to consider the well-known Article 8 appellate authorities Razgar and Hesham Ali and considered proportionality in the round including whether there were very significant obstacles to the appellant being returned to Nigeria.
19. In support of that submission, she relied on the evidence about her ill health in the form of a GP letter dated 11 August 2022 at [106] of the bundle; her fear of her husband and the difficulties she might experience in contacting her children; her limited financial resources; and the lack of information about her sister.
20. It was argued that the Article 8 analysis was clearly flawed and the question for me was the view to be taken of the totality of the judgment.
21. For the respondent, the Presenting Officer Ms McKenzie accepted that there were some concerns about the formulation of Article 8 and the 20 years residence requirement. However, she submitted that the 20 years residence requirement was correctly considered, and the judge had properly had regard in paragraph 42 of the judgment to the relationships which the appellant had had. She submitted that if the judgment was read as a whole the judge had taken account of the factual matters which constituted the appellant’s private life. Any error in the formulation of whether Article 8 was engaged was not a material error and so the appeal should be dismissed.

Decision on error of law
22. The Judge found that Article 8 was not engaged because the appellant had not resided in the United Kingdom for 20 years. No authority was cited for this proposition by the judge, and the respondent did not submit that there was authority that it was accurate as a matter of law. If correct, it would amount to a radical change to the conventional understanding of Article 8 rights. I am satisfied that it was a misdirection in law.
23. The principal focus of the argument was on whether or not the error was material. The appellant submitted that the judge should have undertaken an analysis of the factors in favour of the appellant and against her, in line with case law including Razgar v SSHD [2004] UKHL 27 and Hesham Ali v SSHD [2016] UKSC 60.
24. The respondent submitted that the Judge had properly identified the relevant evidence relating to Article 8 elsewhere within the judgment, and that any error of law could have made no difference to the outcome. The focus of the case had always been on the protection side rather than on Article 8, and that reflected the very limited nature of the Article 8 rights which were in issue.
25. There is force to this submission - the evidence concerning the appellant’s private life was undeniably limited, for example compared with what is produced in other cases.
26. However, I cannot be satisfied that had the judge properly directed himself and undertaken the necessary balancing of the evidence, the outcome would have been the same. Article 8 analysis is not just a box-ticking exercise, even in a case such as this where the focus of the evidence and submissions was on the protection claim – it must be undertaken with regard to different legal principles from those in a protection claim, even though it may well be the case that the evidence relevant to Article 8 is the same as or similar to what was considered in the protection context.
27. Accordingly, the appeal is allowed in respect of Article 8. As permission was not granted on the protection claim, that part of the Judge’s judgment is unaffected.
28. In accordance with paragraph 7 of the Practice Statement, and having regard to AEB v SSHD [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 IAC, I have decided that this case should be remade in the Upper Tribunal. This is because:
a. The parties have not been deprived of a fair hearing or of an opportunity to advance their case; and
b. The extent of further fact-finding for the decision to be remade is likely to be limited. This is because the remaking will concern only a narrow question: the appellant’s Article 8 rights.
29. I direct that the appeal be listed for a rehearing in the Upper Tribunal limited to the issue of the appellant’s Article 8 rights.

Directions
30. The parties have permission to rely on evidence that was not before the First-tier Tribunal. Any such evidence must be filed with the Upper Tribunal and served on the other party at least fourteen days before the resumed hearing.

Conclusion
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

Notice of Decision
The appeal is allowed on Article 8 grounds.

J Jolliffe

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 December 2024