United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/06491/2020 (V)

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 23 August 2021	On 05 October 2021

 

Before

 

UPPER TRIBUNAL JUDGE SHERIDAN

 

 

Between

 

Margaret Tsike

(ANONYMITY DIRECTION not made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Mr Richards, Solicitor, instructed by Ansong Associates

For the Respondent: Mr Avery, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

1.              I will refer to the parties as they were designated in the First-tier Tribunal.

2.              This has been a remote hearing using Microsoft Teams. I did not identify, and neither party raised, any issues or concerns with the technology or process.

3.              I gave my decision orally at the hearing.

 

Background

4.              The appellant is a citizen of Ghana born on 7 August 1950. She came to the UK in November 2004 as a visitor and did not leave when her visa expired in May 2005. She lives with her daughter and son-in-law (both of whom are citizens of Ghana) and their three children (aged 16, 11 and 6 at the time of the First-tier Tribunal decision). Her eldest grandchild is a British citizen.

5.              In February 2018 the appellant applied for leave to remain in the UK on the basis of her family and private life but the application was invalid due to non-payment of the required fee. In July 2019 she made a further - this time valid - application. It was refused in November 2019. The appellant appealed to the First-tier Tribunal where her appeal came before Judge of the First-tier Tribunal Wyman ("the judge"). In a decision promulgated on 2 February 2021, the judge allowed the appeal. The respondent is now appealing against the judge's decision.

Decision of the First-tier Tribunal

6.              The judge made the following findings of fact:

(a)           The appellant has been in the UK unlawfully since May 2005.

(b)          Since arriving in the UK she has lived with her daughter.

(c)           The appellant's daughter was granted leave to remain in 2012 but before then she spent six years in the UK unlawfully.

(d)          It is unclear whether the appellant would have family to support her, and accommodation in which to live, in Ghana.

(e)           The appellant has a range of health problems and it is unclear if she would be able to obtain treatment for them in Ghana.

(f)            The appellant helps her daughter with childcare and housework and has a close relationship with her three grandchildren, with whom she has lived since they were born.

7.              The two legal questions the judge needed to determine were:

(a)           whether the appellant would face very significant obstacles integrating into Ghana, as if so she would satisfy the conditions of paragraph 276ADE(1)(vi) of the Immigration Rules; and

(b)          whether the appellant's removal would breach Article 8. The Article 8 assessment required the judge, inter alia, to take into consideration the factors stipulated in Part 5A of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act").

8.              The judge did not make an explicit finding on whether the appellant would face very significant obstacles integrating in Ghana.

9.              The judge's assessment of proportionality under Article 8 is set out in paragraphs 76 - 80, where she stated:

"76. Turning to consider section 117B, again it states the maintenance of effective immigration control is in the public interest.

77. Mrs Lartey acknowledged that she could afford to visit her mother in Ghana, although she may not be able to visit regularly with her children.

78. As Mrs Lartey was keen to point out it was not the financial element of the case which particularly concerns her. She could afford to rent a property for her mother in Ghana and pay for her food and other expenses. It is more the fact that she is concerned that her mother would forget to take her medication at the correct time and would lose the social and emotional support she receives from her family.

79. The age of the appellant is a factor which I acknowledge. She has just turned seventy. I fully acknowledge that at this age she would be too old to obtain paid employment, although as stated above, the economic element of this matter is not of key concern either to the appellant or the sponsor. As stated above, there is little evidence of any family that she has in Ghana. Whilst she has stated in oral evidence that her children live abroad, no documentary evidence of the same has been provided.

80. The appellant is clearly very involved in the life of her three grandchildren. She has cared for them since they were born and indeed may have been their primary carer throughout their lives, given the fact that their father works full-time and their mother has been a student and is now working. As acknowledged by the sponsor, it is the grandmother who has taken the children to school, cooked for them and undertaken various domestic tasks and been the key adult in their lives. It is for this reason, and for this reason only, that I find the appellant should be granted leave to remain, outside the rules on the basis of her Article 8 rights."

Grounds of Appeal

10.          The Secretary of State's grounds of appeal advance two arguments.

11.          First, it is submitted that the judge failed to take into account that the private life relied upon by the appellant was established whilst she was in the UK unlawfully and therefore little weight should be attached to it.

12.          Second, the grounds submit that the judge failed to identify any unjustifiably harsh consequences arising from the appellant's removal.

Submissions

13.          I heard submissions from Mr Avery on behalf of the respondent and Mr Richards on behalf of the appellant.

14.          Mr Avery argued that the decision is deficient in reasoning and lacks any engagement with Section 117B of the 2002 Act. He also submitted that there is no indication in the decision that the judge balanced the public interest against the appellant's private life or that she identified any unjustifiably harsh consequences flowing from the appellant's removal.

15.          Mr Richards submitted that the judge addressed Section 117B of the 2002 Act. He noted that the relevant provisions of the 2002 Act were set out in full in paragraph 23 and that the Upper Tribunal case of Treebhawon [2017] UKUT 13 was summarised in the decision. This, he submitted, points to the judge being aware of the weight that he was required to give to the appellant's private life. He noted that the judge on several occasions (notably at paragraphs 55, 64 and 73) commented on the immigration history of both the appellant and her daughter and submitted that it was evident from this that she took into consideration that both had breached the UK's immigration law. He also argued that it is apparent from paragraph 80 that the judge gave proper consideration to the best interests of the appellant's grandchildren. He submitted that the evidence shows that the appellant has the role of a de facto parent in the life of the grandchildren and that the strength of their best interests is such that removal would be disproportionate.

Analysis

16.          The judge was required, pursuant to Section 117A(2)(a) of the 2002 Act, when assessing whether the appellant's removal from the UK was justified under Article 8, to have regard to the considerations listed in Section 117B. These include that little weight should be given to a private life established by a person when they were in the UK unlawfully (Section 117B(4)) and that little weight should be given to a private life established when a person's immigration status was precarious (Section 117B(5)) .

17.          The appellant's relationship with all three of her grandchildren was established at a time when she was either in the UK unlawfully or with precarious immigration status. Therefore, the judge was required by Sections 117B(4) and (5) of the 2002 Act to attach little weight to the relationship. This is subject to what was said by the Court of Appeal and approved by the Supreme Court in   Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58 about the generalised normative guidance in Section 117B being overridden in exceptional cases by particularly strong features of a private life and that, as explained in Kaur (children's best interests / public interest interface) [2017] UKUT 14 (IAC), there is a spectrum within the self-contained boundaries of "little weight".

18.          Although the judge set out the provisions of Section 117B (in paragraph 23), there is nothing in the decision to indicate that she gave little weight to the appellant's relationship with her grandchildren (or addressed why there were particularly strong features of the relationship such that, exceptionally, more than little weight could be attached to it). This is an error of law. The error is material because the relationship between the appellant and her grandchildren was the central - indeed, the sole - reason the judge allowed the appeal.

19.          After delivering my decision I asked Mr Avery and Mr Richards for their views on whether I was in a position to re-make the decision on the basis of the findings of fact made by the First-tier Tribunal; and if not whether the appeal should remain in the Upper Tribunal or be remitted to the First-tier Tribunal. Both Mr Avery and Mr Richards agreed that I should not re-make the appeal based on the First-tier Tribunal's factual findings as there had not been findings of fact on key issues, such as the availability of medical care and accommodation in Ghana. Mr Richards' preference was for the matter to be remitted to the First-tier Tribunal and Mr Avery expressed no objection to this course of action. Having considered the extent of further fact-finding that will be necessary for this decision to be re-made I am satisfied that the appropriate course of action, having regard to paragraph 7.2(b) of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal, is for the appeal to be remitted to the First-tier Tribunal.

 

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law and is set aside.

The appeal is remitted to the First-tier Tribunal to be made afresh by a different judge.

No anonymity direction is made.

 

 

 

Signed

 

D. Sheridan

 

Upper Tribunal Judge Sheridan Date: 26 August 2021