Dube (SS117A-117D)
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Storey |
| Judgment Date | 24 February 2015 |
| Neutral Citation | [2015] UKUT 90 (IAC) |
| Date | 24 February 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2015] UKUT 90 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Nicol
Upper Tribunal Judge Storey
(Anonymity Direction Not Made)
For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Mr M Joshi, Legal Representative
Dube (ss.117A-117D)
(1) Key features of ss.117A-117D of the Nationality, Immigration and Asylum Act 2002 include the following:
(a) judges are required statutorily to take into account a number of enumerated considerations. Sections 117A-117D are not, therefore, an a la carte menu of considerations that it is at the discretion of the judge to apply or not apply. Judges are duty-bound to “have regard” to the specified considerations.
(b) these provisions are only expressed as being binding on a “court or tribunal”. It may be that the Secretary of State will consider it in the interests of good administration and consistency of decision-making on Article 8 claims at all levels to have express regard to ss.117A-117D considerations herself, but she is not directly bound to do so.
(c) whilst expressed in mandatory terms, the considerations specified are not expressed as being exhaustive: note use of the phrase “in particular” in s.117A(2): “In considering the public interest question, the court or tribunal must (in particular) have regard-”.
(d) section 117B enumerates considerations that are applicable “in all cases”, which must include foreign criminal cases. Thus when s.117C (which deals with foreign criminals) states that it sets out “additional” considerations that must mean considerations in addition to those set out in s.117B.
(e) sections 117A-117D do not represent any kind of radical departure from or “override” of previous case law on Article 8 so far as concerns the need for a structured approach. In particular, they do not disturb the need for judges to ask themselves the five questions set out in Razgar [2004] UKHL 27 . Sections 117A-117D are essentially a further elaboration ofRazgar'squestion 5 which is essentially about proportionality and justifiability.
(2) It is not an error of law to fail to refer to ss.117A-117D considerations if the judge has applied the test he or she was supposed to apply according to its terms; what matters is substance, not form.
In a determination dated 29 October 2014, First-tier Tribunal Judge (FtTJ) Juss allowed the appeal of the respondent (hereafter the claimant) against the decision of the appellant (hereafter Secretary of State for the Home Department (SSHD)) refusing her indefinite leave to remain. The claimant is a citizen of Zimbabwe born in May 1948.
The claimant last came to the UK as a visitor in October 2002. On 8 May 2003 she applied for leave to remain on human rights grounds. This was refused on 14 April 2004 with no right of appeal. Further representations made on 6 April 2005 were refused on 18 July 2005. Her appeal against that refusal was dismissed by an Immigration Judge in October 2005.
The claimant remained in the UK thereafter as an overstayer. In 2010, 2011 and 2012 she made further unsuccessful applications for leave. After considerable correspondence with the SSHD the application she made on 11 January 2012 was refused in July 2014. In giving reasons for refusing it, the SSHD took into account, inter alia, evidence she had submitted regarding her ties with three adult daughters (and their children) in the UK upon whom it was said she was financially and emotionally dependent; medical evidence showing that she had been diagnosed as HIV positive in 2003 and also suffered from hyperthyroidism, dizzy spells and memory loss; evidence that she was an active member of the Seventh Day Adventist Church. The SSHD concluded that it was not accepted that the claimant had formed a family life with her children and grandchildren in the UK or that she could succeed under private life provisions of the Immigration Rules because she had not lived continuously in the UK for twenty years or more and on her own evidence still had family ties in Zimbabwe with two brothers and a 37 year old son. It was noted that she had remained clandestinely in the UK in full knowledge that she did not have permission to do so. The SSHD considered that she could continue being an active member of the Seventh Day Adventist Church back in Zimbabwe and that she could maintain contact with her family members and friends via the means of modern communication after she returned to her home country. As regards her health problems, the SSHD considered that there was available treatment in Zimbabwe and in this regard referred to the Country of Origin Service (COIS) Report for Zimbabwe.
The refusal letter went on to address the point raised by representatives on her behalf in September 2013 that the delay in any decision being made had caused the claimant “undue hardship”. The SSHD's response was to point to the claimant's breaches of immigration law by failing to leave the UK voluntarily or to regularise her stay until 31 March 2010: the majority of the delay in her case was said to be due to her own action in failing to submit any further application to regularise her stay until approximately four and a half years after her appeal was dismissed and she had become appeal rights exhausted.
At the hearing the FtTJ did not hear evidence but noted the contents of a statement by Elizabeth Nyoni, the daughter of the claimant. Having heard submissions from the parties, the judge noted that it was accepted by both parties that the claimant could not succeed under the Immigration Rules.
The judge then proceeded to set out his reasons for deciding to allow the claimant's appeal “under freestanding Article 8”:
“10. This is a case concerning a 68 year old woman who is a HIV sufferer, and undergoes dizziness, pain, and stress, and is currently under the investigation of a consultant neurologist (see page 19 of the Appellant's bundle). She is in a vulnerable condition largely because of her health needs. She cannot on the basis of v the UK assert that she has a right to medical treatment in this country as against what may be available in Zimbabwe, these are facts that must necessarily be taken into account in considering how the balance of considerations fall.
11. In that respect, she has been in the UK since October 2002, having lived here for fourteen years, and in the context of enjoying family life with her children and her grandchildren, to whom she is very close. There was ample opportunity for the Secretary of State to remove her. This could have been done in 2005. It was not. A good nine years went by, during which time the Appellant has formed close family ties with her three children and grandchildren. What the House of Lords said in EB (Kosovo) in the very clear judgment of Lord Brown, was that delay may have consequences in three particular respects, one of which was that the longer the time goes by when the Appellant is not removed, the greater her chances of casting down roots, and the greater the realisation on her part, that she is not to be removed.
12. I must take these considerations into account when I apply the five step approach in Razgar adopted by Lord Bingham (at paragraph 17). It is clear that the decision interferes with the Appellant's Article 8 rights. The interference has consequences of such gravity as to engage Article 8. It is in accordance with the law. It may even be necessary in a democratic society for the economic wellbeing of the country. However, it is not proportionate to the legitimate public end that is sought to be achieved. I take into account that it is in the public interest, as is made clear by part 5 of the latest Rules, that immigration control is maintained.
13. However, Lord Brown was clear in EB (Kosovo) that the very importance of immigration control, as a consideration to be applied, diminishes with the passage of time, in relation to a person who should have been removed but is not removed by the authorities.
14. I am satisfied that if the Appellant were to be removed she would not be able to enjoy her family life in Zimbabwe with her children and grandchildren in this country. The effect of her removal would be the breakdown of her family life. That family life cannot be replicated if she were to be removed to Zimbabwe.
15. On the totality of the evidence before me, I find that the Appellant has discharged the burden f proof and the reasons given by the Respondent do not justify the refusal. Therefore, the Respondent's decision is not in accordance with the law and the applicable Rules.”
The SSHD's grounds of appeal were fivefold. It was first submitted that the judge was wrong to treat delay as having “determinative weight” because the claimant knew that she stayed on in the UK in breach of her visa and made no efforts to depart voluntarily. Secondly, the point was made that any family or private life the claimant had was developed when she knew she had no legitimate expectation to continue it. In the third place it was argued that the FtTJ had failed to conduct the Article 8 proportionality assessment in accordance with s.117 of the Nationality, Immigration and Asylum Act 2002 and the judge's incorrect reference to these provisions as part of the ‘Rules’ indicated their misapplication. In what were expressed as further limbs to the third ground, but were effectively two additional grounds, the SSHD contended that rather than approach Article 8 open-endedly the judge should have considered the claimant's inability to succeed under the Immigration Rules as “a weighty proportionality factor in favour of removal”; and that the judge's...
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