Jose Herrera v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Gloster,Lord Justice Underhill,Lady Justice Asplin |
| Judgment Date | 31 January 2018 |
| Neutral Citation | [2018] EWCA Civ 412 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2015/3465 & 3465(A) |
| Date | 31 January 2018 |
[2018] EWCA Civ 412
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
The Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Gloster
(Vice-President of the Court of Appeal)
Lord Justice Underhill
Lady Justice Asplin
Case No: C5/2015/3465 & 3465(A)
Mr Ronan Toal and Mr Greg O'Ceallaigh (instructed by Wilson Solicitors LLP) appeared on behalf of the Appellant
Mr Andrew Byass (instructed by Government Legal Department) appeared on behalf of the Respondent
The Appellant is a national of Argentina aged 65. He came to the UK on 20 November 1999 on a visitor visa and was subsequently granted leave to remain as a student. That visa expired on 30 September 2002, but since then he has remained as an overstayer. On 4 April 2013 he applied for leave to remain on private life grounds. On 12 May 2014 the Secretary of State refused his application.
The Appellant appealed to the First-tier Tribunal against that decision. There was a hearing before FTTJ Hembrough on 2 February 2015. The Appellant was unrepresented, though he had the assistance of a Mackenzie friend, Ms Reid. The Respondent, rather unusually for an FTT hearing, was represented by counsel. Both the Appellant and Ms Reid gave evidence.
The Judge's decision was promulgated on 3 March 2015. He allowed the appeal. His reasons recount the evidence which he had heard from the Appellant and Ms Reid, which he accepted in full. For present purposes I can summarise most of it very briefly. The Appellant is an educated man, who had run a small business in Argentina which had failed. He had left, intending to move eventually to the United States but had, as I have said, come first to the UK, where he stayed as a student and then overstayed. He suffers a degree of mental illness in the form of depression and obsessive compulsive disorder, and he had a short period of in-patient treatment in 2010; but his condition is now controlled by medication. Despite those problems he has been able to support himself by working in various capacities, mainly as a self-employed sound engineer and doing decorating work. He has paid income tax, national insurance contributions and council tax, though his lack of immigration status has meant that recently getting work has become more problematic. In addition he has involved himself extensively in voluntary work. There were glowing testimonials from a number of charities for which he had done work. He is not married and has no family here. It is clear that the Judge formed a very favourable impression of him. I will come back to his evidence about the extent to which he retained any links to Argentina.
The primary basis on which Judge Hembrough allowed the appeal was that the Appellant was entitled to leave to remain under paragraph 276ADE (1) (vi) of the Immigration Rules. He also found by way of alternative that he was entitled to such leave “outside the Rules” by reference to article 8 of the European Convention of Human Rights, but we are not concerned with that aspect of his reasoning on this appeal.
I should start by setting out the terms of the rule. At the time of the Secretary of State's decision, sub-sub-paragraph (vi) defined the relevant requirement for leave to remain as being that the applicant:
“… is aged 18 years or above, has lived continuously in the UK for less than 20 years discounting any period of imprisonment, but has no ties including social, cultural or family, with the country to which he would have to go if required to leave the UK”.
It is common ground that that version is the material one for our purposes. However, it is relevant to the issues before us that with effect from a date only three weeks later – specifically, from 6 June 2014 – the wording was changed so as to read:
“… is aged 18 years or above, has lived continuously in the UK for less than 20 years discounting any period of imprisonment, but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK”.
The requirement of “very significant obstacles to the applicant's integration” on return is not identical in effect to the previous requirement of “no ties”, and will in some circumstances present a higher hurdle to applicants.
The effect of the old version of paragraph 276ADE (1) (vi) was expounded by the Upper Tribunal in Ogundimu v Secretary of State for the Home Department [2013] UKUT 00060 (IAC), and that exposition was approved by this court in Akpan v Secretary of State for the Home Department [2015] EWCA Civ 1266. At paragraph 24 of his judgment in Akpan, Sales LJ said:
“… In my view the Upper Tribunal in Ogundimu correctly construed the relevant phrase regarding ‘ties’ in paragraphs 276 ADE (vi) and 399A, as importing a general evaluative judgment (‘a rounded assessment of all the relevant circumstances’) as part of an ‘exacting test’ to focus on the question of whether there is ‘a continued connection to life’ in the country in question amounting to ties ‘that could result in support to the appellant in the event of his return there’, so that the consequences for an applicant in trying to re-establish themselves in their country of origin would not be ‘unjustifiably harsh’.”
In the FTT the Appellant gave relatively detailed evidence going to the question whether he had any ties with Argentina. He said that he had no property there. His parents were dead. He had two sisters to whom he spoke on the telephone very infrequently and who were in straitened circumstances and would not be able to support him if he returned. He was unlikely to be able to obtain employment and had no entitlement to a pension. He felt no cultural connection to the country, having been absent for so many years.
The Judge dealt with the application of paragraph 276ADE at paragraphs 35 to 39 of his decision, which read as follows:
“35. I am satisfied that since he last entered the UK in 1989 the Appellant has achieved a very high level of integration into life here and the letters from the voluntary organisations with whom he has interacted all attest to his personal qualities, describing him as a much respected and admired member of his local community.
36. He has been out of Argentina for about 16 years. He never married and his parents are deceased. He owns no property there and the reality I find is that he no longer has any significant connection to that country. Whilst he has 2 sisters there, he has not seen them since he left Argentina. I accept his evidence of infrequent contact and that he would not be able to turn to his sisters for support if returned.
37. I find that he no longer has any meaningful ties whether social, cultural or familial to his country of origin.
38. Given the length of time he has been out of Argentina, his age and his mental health problems I also find that there would be very significant obstacles to his integration into life there....
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