Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-000953
UI-2024-000954
UI-2024-000955
UI-2024-000956
First-tier Tribunal No: HU/53889/2023
HU/53891/2023
HU/53893/2023
HU/53896/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

9th September 2024

Before

UPPER TRIBUNAL JUDGE LANE
UPPER TRIBUNAL JUDGE HANSON

Between

MARISELA LILA
ENAZO LILA
ERMA LILA
KEIDA LILA
(NO ANONYMITY ORDER MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Rashid instructed by Hi Solicitors.
For the Respondent: Mr C Bates, a Senior Home Office Presenting Officer.

Heard at Manchester Civil Justice Centre on 16 August 2024

DECISION AND REASONS

1. The appellants are citizens of Albania.
2. The first appellant is the mother of three other appellants. She was born on 3 August 1984. The second appellant was born on 30 June 2008, the third appellant on 20 September 2010, and the fourth appellant on 28th May 2004.
3. The appellants’ entered the UK on 29 June 2021 having travelled by lorry from Italy. They claimed asylum on 26 February 2002 but later withdrew their claims on legal advice.
4. On 2 December 2022 the first appellant applied for leave to remain on the basis of family life with the Sponsor, her British husband, Mr Dritan Xhepa (the Sponsor’). The remaining appellant’s applications were based on the right to private life. The fourth appellant was an adult when the applications were made.
5. The Secretary of State refused the applications in four separate refusal letters, each dated 8 March 2023, which were upheld following the Respondent’s Review on 16 October 2023.
6. The appellants’ appeals against the refusals came before First-tier Tribunal Judge Trent (‘the Judge’) sitting at Manchester (Piccadilly) on 13 December 2023.
7. The Judge’s findings are set out from [15] of the determination under challenge. The Judge records in that paragraph that there was no factual dispute between the parties in relation to the account of the appellants lives in the UK. The Secretary of State disputed however the appellant’s claims of experiencing difficulties they and the Sponsor would face in Albania [16].
8. At [19] the Judge was not satisfied the first appellant was threatened in Albania or that such threats are ongoing. The Judge recorded that such a claim was not made prior to the hearing and that the claim for international protection had been withdrawn with the benefit of legal advice. The Judge found the first appellant’s evidence to be vague with almost no details as to who was threatening her, when, where, or how many times. The Judge found that there was no evidence that any threats continued after her mother left Albania or that any of the appellants remained in danger from unidentified persons two and a half years later. The Judge found that there is nothing to suggest that either appellant faces a real risk if returned to Albania [19].
9. The Judge considers the issue of insurmountable obstacles from [21]. In that paragraph the Judge records that it was accepted by the Presenting Officer that Article 8 is engaged in this case in respect of each of the appellants and it was not suggested that the Sponsor’s relationship with his younger British child, Sebastian, did not engage Article 8 either, or that younger child’s best interest should not be taken into account as a primary consideration in this case.
10. The Judge notes the Sponsor has an established regime of overnight weekly contact with Sebastian, from Friday evening to mid-day Saturday, which is sufficient to amount to family life which will be affected by the Sponsor leaving the UK. The Judge recognises that when considering insurmountable obstacles to the first appellant and Sponsor’s family life continuing in Albania, it was necessary to consider the Sponsor leaving the UK and that, if he were to do so, he and his younger child could no longer enjoy the regular direct contact they are accustomed to spending together, which will negatively impact on their family life. The Judge records it being necessary to consider the child’s best interests when determining whether the insurmountable obstacle test is made out.
11. At [22] the Judge records it was not suggested that the Sponsor’s children should leave the UK. In that paragraph the Judge writes:
“His best interests would also be served by continuing to benefit from the regular time he spends with his father. This, however, is of materially lesser import than the much greater portion of his time he spends with his mother. It would, as I have said, be detrimental to him to reduce the time spent with his father by way of direct contact, but it is important to bear in mind that the Sponsor is a British national who would be able to supplement any indirect telephone and video contact by regular visits. The Sponsor has significant experience as an HGV driver, which is a job which can be readily transferred overseas. There is no evidence to suggest he would not be able to obtain similar work in Albania, and although it might be less remunerative than his current work in the UK, I find on the balance of probabilities that he would be able to afford to visit his children in the UK from time to time and maintain his relationship with them not just by indirect contact through modern means of communication. The best interests of his younger child would not, therefore, be significantly negatively affected by his moving to Albania.
12. Mr Rashid, who also represented the Appellants before the First-tier Tribunal, relied on two factors in support of his argument that there are insurmountable obstacles in this case; the first concerning issues in Albania was rejected by the Judge leaving only the second, namely the possible detriment to the best interests of Sebastian if he were to leave the UK.
13. At [24] the Judge writes:
26. In this regard, Mr Rashid relied on the Respondent’s “Family Policy: Family life (as a partner or parent) and exceptional circumstances” dated 15 May 2023, which states at page 54 (emphasis added): “Being separated from a child from a former family relationship, may constitute an insurmountable obstacle if there were particular factors in the case to establish the unusual or exceptional dependency required for Article 8 to be engaged. Such a claim will normally only succeed where the particular circumstances of the case mean that (taking into account the child’s best interests as a primary consideration) it would be unjustifiably harsh to expect the child to relocate overseas with the applicant’s partner, or for the applicant’s partner to do so without the child.”
14. The Judge rejects this argument [27] where it is written:
27. Although I consider for the reasons I have given above that Article 8 is engaged in respect of the Sponsor’s relationship with his younger child, that is not because of any unusual or exceptional dependency. No such circumstances exist here. In my judgement, it is not sufficient to establish insurmountable obstacles, as defined by the Rules, that there will be some detriment to the Sponsor’s younger child in terms of the frequency and regularity of his direct contact with his father, without more. For the reasons I give above, this is not a sufficiently significant factor to render it unjustifiably harsh for the Sponsor to move to Albania without his child. I accept that such contact is important to the child, but for the reasons I have given as to the Sponsor’s ability to continue his relationship with the child from Albania, including by visits from time to time, I do not consider the sadness this will cause to both Sponsor and child, or the detriment to the child from reducing his contact with his father, are sufficient to amount to insurmountable obstacles in the sense intended by the Rules. There are no other factors relied upon to support a finding that the obstacles are insurmountable in this case. The obstacles in this case are not such that they could not be overcome or would entail very serious hardship for the First Appellant or Sponsor.
15. Thereafter the Judge finds no very significant obstacles to family life between the first appellant and Sponsor continuing in Albania, that the fourth appellants work experience and friends and links in the UK are not of themselves enough to amount very significant obstacles, and that the first to fourth appellants therefore could not meet the requirements of Appendix Private life of the Immigration Rules.
16. The Judge went on to consider Article 8 outside the Rules. The Judge sets out factors in favour of the appellants at [33 (a)-(d)], neutral factors at [34] and the matters weighing against the appellants at [35 (a)-(h)], before writing at [36]:
36. Weighing everything in the balance, the factors weighing in the Appellants’ favour are insufficient to outweigh the public interest in their removal, even aside from the other factors that weigh against them. It will, as I have said above, negatively impact on the Sponsor’s younger child for the Sponsor to relocate to Albania with the Appellants, but that is a choice which is open to him, and the negative consequences of such a decision for that child – even taken as a primary consideration – are not so great as to outweigh the other factors weighing in favour of the Appellants’ removal. There are no other factors that weigh materially against the public interest in this case, even when the best interests of the Second and Third Appellants are also taken as primary considerations. The decision to refuse the Appellants leave to remain does not infringe their rights to private or family life (or those of the Sponsor or his children) in a manner disproportionate to the public interest in the Appellants’ removal from the UK.
17. The appeal was therefore dismissed.
18. The appellants sought permission to appeal asserting:

a. The decision of the Judge is flawed in law;
b. The Judge erred in his considerations of the insurmountable obstacles under paragraph EX.1 of Appendix FM;
c. The Judge erred in his approach the question of compassionate and compelling circumstances;
d. The Judge failed to ascribe appropriate weight to the circumstances of the appellant;
e. When assessing whether there was interference with the rights protected under Article 8 ECHR, Judge failed to weigh the balance between the interests of the family and the public interest in a manner consistent with Huang v Secretary of State the Home Department [2007] UKHL 11.

For the reasons more fully set out in the application for permission to appeal to the Upper Tribunal.
19. Permission to appeal was refused by another judge of the First-tier Tribunal on 29 February 2024 and was renewed to the Upper Tribunal.
20. Permission to appeal was granted by Upper Tribunal Judge Bruce on 23 April 2024, the operative part of the grant being in the following terms:
1. The grounds are poorly drafted and the caselaw referenced is of no assistance. I nevertheless grant permission because I think it arguable that the First-tier Tribunal was unduly focused on finding something “unusual or exceptional” in the Sponsor’s relationship with his children from a previous relationship. Implicit in the Tribunal’s findings is an acceptance that he enjoys a genuine and subsisting parental relationship with those children. There is no question of them being expected to leave the UK. If it were his immigration status at stake, the public interest would not therefore require his removal from the United Kingdom: s117B(6) Nationality, Immigration and Asylum Act 2002. It is therefore somewhat anomalous that this parental relationship apparently counts for so little when it comes whether his new family should be expected to leave the UK. In other words this family would have been better off had he also been an appellant in the case: he would have won his appeal and his new partner and children would have succeeded as his dependents. It is arguable that the First-tier Tribunal has failed to consider that context in its assessment of whether there are “insurmountable obstacles” to family life continuing abroad.
Discussion and analysis
21. The Judge clearly considered the evidence with the required degree of anxious scrutiny and there is no challenge to the factual findings made in relation to family composition or relationships.
22. The grounds seeking permission to appeal are, as noted by Judge Bruce, poorly drafted. They neither name the author, nor are dated, in breach of guidance provided by the Upper Tribunal.
23. We find there is no merit in the assertion the Judge failed to properly consider the best interests of the children and their welfare as a primary consideration. A reading of the decision as a whole shows the Judge did.
24. The submission there was more than sufficient evidence to establish unusual or exceptional dependency based upon Sebastian having contact with the Sponsor, his father, such that Article 8 was engaged does not take the matter any further as the Judge noted at [22] that it was not suggested by either party that Sebastian should leave the UK. At [21] the Judge records the Presenting Officer accepting that Article 8 is engaged in this case in respect of each of the appellants and did not find it would not also be engaged on the basis of the Sponsor’s relationship with Sebastian.
25. We find no merit in the claim the Judge failed to form his own independent and impartial view of the weight to be afforded to the evidence, the Judge clearly did. We find no merit in the assertion the Judge did no more than “merely endorse the Secretary of State’s reasons on why the appellant ought to be removed from the UK”. The fact the Judge may have come to a decision that mirrors the refusal letter does not mean the Judge has not exercised the required degree of anxious scrutiny and applied the correct law to the facts as found.
26. The main submission made by Mr Rashid was based upon the finding by the Judge at [15 (a)] in which the Judge writes:
(a) The Sponsor has lived in the UK for over 20 years and is a British citizen. He has two children, one aged 13 and another aged 19. Those children live with their mother and spend time with the Sponsor. I accept his uncontested evidence that, following an amicable separation from these children’s mother and the dissolution of their marriage by decree absolute in July 2020, he spends time with both these children on a weekly basis, whereby they stay with him at his home (and the home of the Appellants) overnight on Friday until a flexible time on Saturday, generally around lunchtime, when they return to the care of their mother.
27. Mr Rashid submitted the Judge did not attach relevant weight to the relationships as found when considering whether insurmountable obstacles existed at [22].
28. Mr Rashid also submitted the Judge erred in the assessment as a whole at [27] as the Judge accepted that Article 8 was engaged as a result of the contact between Sebastian and his father, exceptional or unusual circumstances existed in this appeal, that Sebastian could not be expected to relocate to Albania, that there are insurmountable obstacles to family life continuing in Albania between the appellants’ and the Sponsor, and that the Judge failed to apply the Secretary of State’s guidance when assessing the merits of the insurmountable obstacles test. It was also submitted the Judge failed to take into account the relationships between the four appellants and Sebastian, as the appellants live in the same household as the Sponsor which is the property in which Sebastian stays when having contact with his father on Friday night to Saturday lunchtime.
29. The grant of permission to appeal refers to section 117B of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’).
30. We find great care needs to be taken when considering a submission a Judge may have erred in law based upon the application of a different legal regime, accepted as being applicable to a particular class of individual, with no evidence of it being of general application.
31. Section 117 A reads:

117A
Application of this Part

(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—

(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2) In considering the public interest question, the court or tribunal must (in particular) have regard—

(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3) In subsection (2), “the public interest question” means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2)

32. The Sponsor is a British citizen as is Sebastian. Neither are a party to the appeal. No decision has been made under the Immigration Acts that will breach either’s right to respect for their private and family life under Article 8 ECHR such as to make it unlawful under section 6 of the Human Rights Act 1998. The immigration decision which is the subject of this appeal is the refusal of the applications of the four appellants for leave to remain in the United Kingdom.
33. We accept the submission of Mr Bates that the simple fact is that there is a differential relationship arising from different applications and refusals in relation to a person who is subject to removal from the United Kingdom to whom section 117 of the 2002 Act will apply, and a person such as the Sponsor, who is not an appellant, is not the subject of an adverse immigration decision, is a British citizen, and has not established he is a person to whom section 117 has any application as he is not subject to removal.
34. The application for permission to appeal did not pay due regard to the distinction between an appellant and the Sponsor and enforcement on removal.
35. In relation to the assertion the Judge failed to follow Secretary of State’s guidance, the relevant part which is set out by the Judge at [26] and above, the first issue to note is that guidance is neither law nor policy.
36. Mr Bates also referred to the first line of the paragraph quoted from the guidance in which it is written “being separated from a child from a former family relationship may constitute an insurmountable obstacle” (our emphasis). The existence of such a relationship is therefore not determinative. It is a relevant factor and the Judge clearly took it into account as such. There is arguable merit in the submission that being a biological father of a child is not enough.
37. In this case, Sebastian has staying contact with his father but is primarily cared for by his mother, hence the Judge’s findings as to the child’s best interests which are to remain with his mother.
38. The Sponsor can remain in the United Kingdom, as noted by the Judge. Whether he chooses to go to Albania with the appellants is a matter for him. The Judge did not find it disproportionate if he chose to go to Albania and maintained indirect contact and visits with Sebastian.
39. The Judge found nothing in the evidence to show it was appropriate to allow the appeal on the basis of the facts as found in relation to the child, i.e. one period of staying contact each week with insufficient evidence of adverse impact if the Sponsor leaves the UK on the child.
40. The Judge sets out the competing arguments as part of the balancing exercise when assessing Article 8 ECHR as neither appellant was able to succeed under the Immigration Rules.
41. We note the Judge finds that little weight should be placed on the relationship between the first appellant and the Sponsor as it is a relationship and marriage entered into knowing the first appellant had no lawful status in the United Kingdom. It is a relationship that was formed unlawfully, on the facts. This is a sustainable finding.
42. We find merit in the submission that the weight to be given to the evidence was a matter for the Judge.
43. Mr Bates also raised a further issue, although one not considered by the Judge, in relation to the position of the appellants in Albania and the content of the Albanian court documents which show that when the first appellant separated from her husband the Family Court in Albania ordered extensive contact between the children and their father in addition to the time with their mother. It appears the view of the Albanian courts was that the children’s best interests are to have contact with both parents in Albania.
44. The facts therefore raise an interesting point, that it is in the best interests of the Albanian children to return to Albania to maintain a relationship with both parents subject to the terms of the Albanian court order and it in the best interests of Sebastian to remain in the United Kingdom with his mother. The accepted common bond between these family units is the Sponsor, but as noted above, there is no obligation on the Sponsor to leave the UK as there is no order for his removal as he is a British citizen.
45. The Judge found that interference with any protected right was proportionate. So far as the relationship between the first appellant and Sponsor is concerned, his assessment is based upon their marriage. The appellant has failed to show that the finding of the Judge, that it is proportionate for the appellants to be removed from the UK to Albania, is a finding which lies outside the range of those reasonably open to the Judge on the evidence; in circumstances where the marriage is not determinative.
46. The Sponsor is in employment earning a reasonable income and has the option of visiting family members if he wants to do so. This can include visits from the UK to Albania if he chooses to remain in the UK and maintain contact with Sebastian. There is, of course, no order requiring Sebastian to leave the UK.
47. We also observe that it remains open to the appellants to return to Albania and make an application for entry clearance to enter the UK lawfully.
48. So far as the Judge was required to assess whether the appellants could succeed under the Immigration Rules, and whether they could succeed under Article 8 ECHR, we find no legal error material to the decision and dismiss the appeal. Article 8 ECHR is a discretionary provision. Considering the facts as a whole, we find the decision is within the range of those available to the Judge on the evidence.
Notice of Decision
51. The First-tier tribunal has not been shown to have materially erred in law. The determination shall stand.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

20 August 2024