Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2024-002824
UI-2024-002823

First-tier Tribunal No: HU/57566/2023 and HU/59124/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

16th June 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA
and
DEPUTY UPPER TRIBUNAL JUDGE FARRELLY

Between

Luciana Braga Carmona
Helozia Maria Carmona Santos
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr B Shabir, instructed by McGlashan Mackay
For the Respondent: Mr Andrew Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh Tribunal Centre on 30 January 2025
Decision and Reasons
Introduction
1. The appellants are nationals of Brazil. The first appellant is the mother of the second appellant. Most recently, they both arrived in the UK in November 2019. The first appellant with a visit visa valid for six months and the second appellant with a six-month student visa. At that time, another of the first appellant’s children, Edilberto Gomes Dos Santos Filho, was in the UK. He had arrived in the UK in September 2019 with a short-term student visa. The first appellant and her two children all made separate applications for leave to remain. Each application was refused by the respondent and each of them appealed to the First-tier Tribunal (“FtT”). The three appeals were linked and heard by FtT Judge Grimes (“the judge”) in Glasgow on 23 April 2024. The first appellant was the first appellant before the FtT. The second appellant before the FtT was Edilberto Gomes Dos Santos Filho (“Edilberto”). The second appellant before us was the third appellant before the FtT. The three appeals were dismissed for reasons set out in a decision dated 29 April 2024.
The Grounds of Appeal
2. The appellant advanced three grounds of appeal. First, the appellants claimed that in dismissing the appeals the judge failed to deal with the submission that Edilberto would face discrimination in respect of his mental health condition in Brazil. Second, the judge failed to give adequate reasons for rejecting the expert evidence of the Consultant Psychiatrist, Dr Krishnadas who had expressed the opinion that Edilberto should continue to receive mental health treatment otherwise there was a significant risk of his mental health deteriorating. Third, the judge erred when she considered that she is required to give “little weight” to the appellants’ private life and family life because of their unlawful immigration status. The appellants claim s117B(4) of the 2002 Act requires the Tribunal to attach ‘little weight’ to a private life or a relationship formed with a qualifying partner at a time when the person is in the UK unlawfully. Section 117B(5) provides that ‘little weight’ should be given to a private life established by a person at a time when the person’s immigration status is precarious. The appellants claim the judge erred in law when she stated ‘little weight is to be attached to the appellant’s private and family life’ at paragraphs [55] and [83] of her decision.
3. Permission to appeal was granted by Upper Tribunal Judge Blundell on 2 July 2024. He said:
“3. There are three grounds of appeal. The first two relate to the judge’s consideration of the second appellant’s [Edilberto] mental health problems. It is said that the judge failed to take account of the stigma which attaches to people with mental health problems in Brazil and that the judge failed to take account of particular risks to which the second appellant would be exposed on return to Brazil. I am satisfied that those grounds are arguable; there is arguably no reference to the stigma to which the second appellant might be exposed and the judge arguably failed to take account the likely consequences of the second appellant losing the medical support (not merely medication) he has in the UK. Those complaints are relevant, it seems to me, to the entirety of the assessment at [37]-[68] of the judge’s decision.
4. The third ground of appeal relates to the judge’s consideration of proportionality for each of the appellants. It is contended that the judge erred in her approach to the ‘little weight’ provisions in s117B(4) and (5) of the 2002 Act, by applying those provisions to each appellants’ private and family life.
5. I am just persuaded that this ground is arguable as the judge arguably failed to come to grips with the specific ways in which those subsections apply to either a private life or a family life with a qualifying partner.
6. In the event that the other grounds are not made out, however, I very much doubt (but cannot be certain at this stage) that any error in this respect was material to the outcome of the appeals. There was, on any view, a cogent public interest in removal even if those subsections did not apply to the totality of the Article 8 ECHR rights in issue in this case. “
4. On 7 January 2025, the Upper Tribunal was notified that Edilberto intended to voluntarily return to Brazil. He departed from the United Kingdom on 14 January 2025 and his appeal is now treated as abandoned. In the skeleton argument filed on behalf of the appellants’ it is conceded that the only ground relevant to the remaining appellants is the third ground in which it is said the judge wrongly considered that she is required to give the appellants’ family life ‘little weight’.
The Hearing of the Appeal Before Us
5. Mr Shabir adopted the ‘Note of Argument’ sated 22 January 2025. He submits that at paragraph [30] the judge accepted the first appellant has a family life with the sponsor. The Presenting Officer accepted each of the appellants has a family life with the others within Article 8(1) of the ECHR. There is therefore no doubt that family life exists. Mr Shabir submits that in dealing with the first appellant’s claim, the judge referred to the factors relied upon at paragraph [34] of the decision. In particular, the judge accepted, at [34(v)], that her daughter (the second appellant before us) may be vulnerable and dependant on her mother. However, the judge said there is no evidence as to the ongoing impact of her medical condition on her day-to-day life and that there is no evidence that there would be an adverse impact on her of returning to Brazil with her mother and brother.
6. As far as the second appellant before us is concerned, the judge accepted at [78], that there would be an interference with family life between the second appellant and the first appellant’s sponsor if the sponsor does not travel to Brazil with the other appellants. At paragraph [82], the judge referred to sections 117B(4) and (5) of the 2002 Act and at paragraph [83] said that “little weight is to be attached to the appellant’s private and family life”. Mr Shabir accepts it was right to say that little weight attaches to the private life established by the second appellant but he submits the judge was not required to give little weight to the family life established by the second appellant.
7. Mr Shabir submits the judge speculated as to whether the family would move to Brazil together. The judge did not consider what would happen if one remained in the UK and another departed. It was not inevitable that the family would leave together.
8. In reply, Mr Mullen submits there now appears to be an artificial separation of the position of each the appellants. On any view, none of the appellants before the FtT were able to meet the requirements of the rules. The judge considered each of the appeals outside the immigration rules and it was open to the judge to dismiss the appeals of the two remaining appellants for the reasons she gave.
Decision
9. The assessment of an Article 8 claim such as this is always a highly fact sensitive task. The judge summarised the claims made by each appellant in paragraph [3] of her decision:
“In summary, the first appellant met the sponsor, James Crosbie Main, in Brazil in November 2018 and they entered into a relationship. The appellants came to the UK, returned to Brazil, and came back to the UK in 2019 as outlined above. The appellants claim that they intended to stay for a temporary period of time on their second entry but were unable to leave the UK due to the Covid-19 pandemic (although they state that they informed the Home Office that they were unable to travel back to Brazil, there is no evidence that they made any application for leave to remain on this basis or that any leave was granted). After expiry of their leave to enter the appellants remained in the UK without leave. The first appellant married Mr Main on 27 April 2021. The second appellant was admitted to hospital in September 2021 after a mental health crisis and was subsequently diagnosed with mania with psychotic symptoms and continues to receive treatment from the NHS. The third appellant has health conditions including hydrocephalus.”
10. The judge addressed the claims made by each appellant separately. The judge addressed the claims made by Luciana Carmona at paragraphs [9] to [36] of the decision. It was uncontroversial that she could not meet the ‘financial requirements set out in Appendix FM of the immigration rules. Having considered the evidence the judge was not satisfied that Luciana Carmona had established that there would be insurmountable obstacles (as defined in EX 2) to her family life with the sponsor continuing outside the UK. That finding is not challenged. The judge addressed the claim outside the immigration rules and said, at [36], that the respondent’s decision to refuse the application is proportionate to the respondent's legitimate aim of the maintenance of an effective system of immigration control, for the prevention of disorder or crime, or to secure the economic well-being of the country.
11. The judge addressed the claims made by Edilberto at paragraphs [37] to [68] of the decision. The judge found he could not meet the requirements for leave to remain set out in paragraph 276ADE of the immigration rules. The judge was not satisfied that he has established that there would be very significant obstacles to his reintegration in Brazil. Outside the immigration rules, the judge considered the fact that Edilberto suffered a significant mental health crisis in September 2021. She notes that as a result of intervention and support his mental health had significantly improved and that whilst there may be some delay in accessing treatment and medication may be expensive, the appellant will be able to access appropriate medical care in Brazil. Again, the judge was satisfied that the decision to refuse the application made by Edilberto is proportionate to the respondent's legitimate aim. The judge addressed the Article 3 claim on medical grounds and said at [67] that Edilberto had not established that he would be exposed to a significant reduction in life expectancy or a serious, rapid, and irreversible decline in his state of health resulting in intense suffering. Edilberto has left the UK and returned to Brazil.
12. Finally, the judge addressed the claims made by Heloiza Maria Carmona Santos at paragraphs [69] to [83] of the decision. The judge concluded she could not meet the requirements for leave to remain set out in paragraph 276ADE of the immigration rules. Again, the judge was not satisfied that she has established that there would be very significant obstacles to her reintegration in Brazil. That finding is not challenged. Outside the immigration rules, again, the judge was satisfied that the decision to refuse the application is proportionate to the respondent's legitimate aim.
13. We do not accept the judge erred in her assessment of the public interest considerations that apply where a Tribunal is required to consider whether a decision breaches a person’s right to respect for private and family life under Article 8 and as a result would be unlawful under section 6 of the Human Rights Act 1998. In considering the first appellant’s appeal, the judge said:
“35 (v) Section 117B (4) and (5)
(a) The little weight provisions of section 117B(4) and (5) involve a spectrum that within its self-contained boundaries will result in the measurement of the quantum of weight considered appropriate in the fact sensitive context of every case (Kaur (children’s best interests/ public interest interface) [2017] UKUT 14 (IAC), [2017] Imm AR 814). More than a ‘little weight’ can be given to the private life of a person with precarious immigration status where there are ‘particularly strong features’ (Rhuppiah v Secretary of State for the Home Department) 2018 UKSC 58.”
14. The judge noted at [35(v)(b)] that the first appellant has been in the UK unlawfully since the expiry of her leave to enter as a visitor, around May 2020. She has established her private life whilst in the UK unlawfully and has developed a relationship with her partner, and married her partner, whilst in the UK unlawfully. The judge went on to note, at [35(v)(c)], that the first appellant developed a relationship with her partner and married her partner when they both knew that she was in the UK unlawfully. The first appellant’s two children (who are now adults) entered the UK as students and did not return to Brazil on the expiry of their leave. It is clear in our judgment that the judge considered matters in the round and it was open to the judge to find, at [36] that the matters relied upon by the first appellant do not outweigh the public interest and that the decision to refuse her application is proportionate for the reasons that the judge gave.
15. As far as the second appellant before us is concerned, the judge again referred to sections 117(b)(4) and (5) at paragraph [82(v)] of her decision in the same way. It is clear from what the judge said that the judge appreciated that the ‘little weight’ provisions set out in section 117B(4) and (5) involve a spectrum that applies in the fact sensitive context of every case. The judge was right to note at paragraph [83] that the appellants’ failure to meet the immigration rules is a weighty factor in the public interest. Mr Shabir accepts the judge was entitled to attach little wight to the private life of the second appellant. The Judge noted, at [82)(v)(c)] that [the second appellant before us] developed her private life and further developed her family life in the knowledge that she was in the UK unlawfully. Although the use of the phrase “As set out above, little weight is to be attached to the appellant’s private and family life” in paragraph [83] is unfortunate, we do not accept the judge applied the wrong test or that if there was an error, it was material to the outcome of the appeal. The judge accepted the appellants before us have a ‘family life’ for the purposes of Article 8. The judge rejected the first appellants claim that the decision to refuse her application is disproportionate. Having reached that decision, and having found the second appellant is unable to satisfy the requirements of the rules and has no other basis upon which she should be permitted to remain in the UK, there is no rational basis upon which the judge could have concluded that the decision to refuse the application made by the second appellant before us is disproportionate. It cannot rationally be said to be disproportionate to refuse the second appellant’s application, when neither appellant has any lawful basis to remain in the UK.
16. It follows that we are satisfied that there is no material error of law in the decision of the FtT and we dismiss the appeal.
Notice of Decision
17. The appeal to the Upper Tribunal is dismissed.
18. The decision of First-tier Tribunal Judge Grimes dated 29 April 2024 stands.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 February 2025