KK (India) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Haddon-Cave,Lord Justice Hamblen |
| Judgment Date | 07 March 2019 |
| Neutral Citation | [2019] EWCA Civ 369 |
| Docket Number | Case No: C5/2016/1287 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 2019 |
[2019] EWCA Civ 369
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hamblen
and
Lord Justice Haddon-Cave
Case No: C5/2016/1287
Mr Rowan Pennington-Benton (instructed by Ma Solicitors) for the Appellant
Mr Eric Metcalfe (instructed by Government Legal Department) for the Respondent
Hearing date: 20 th February 2019
Judgment Approved by the court for handing down
(subject to editorial corrections)
Introduction
The Appellant was born on 8 th July 1998. She is a 26 year-old Indian national.
On 3 rd October 2010, the Appellant arrived in the United Kingdom, aged 17 years old, together with her mother and younger brother. The Appellant had leave to remain (“LTR”) as a Tier 4 (General) Student, valid until 30 th September 2014. She, her mother and brother intended to live with the Appellant's father who had entered the UK clandestinely in 2002 but had since been granted British citizenship.
On 30 th June 2011, the Appellant applied for indefinite leave to remain (“ILR”) as a dependent child of her father. On 24 th August 2011, the Respondent (“the Secretary of State”) refused the Appellant's application for leave. In 2013, the Secretary of State granted the Appellant's mother and brother LTR as dependents of the Appellant's father.
On 25 th October 2013, the Appellant applied for LTR outside the Immigration Rules. On 25 th February 2014, the Secretary of State refused the Appellant's application for LTR.
On 29 th September 2014, the Appellant applied for ILR in the UK on family and private life grounds, having obtained a BSc (Hons) in Pharmacology from the University of Hertfordshire.
Reasons for refusal
On 2 nd December 2014, the Secretary of State refused her application for ILR on the basis that:
(1) the Appellant had not met the requirements of paragraph 276ADE(1) of HC395 (“the Immigration Rules”), in particular she had not spent at least half of her life living in the UK;
(2) it was not accepted that there would be very significant obstacles to the Appellant's reintegration in India since she had lived there for the first 17 years of her life;
(3) the Appellant was now an adult and such family life as she maintained in the United Kingdom did not fall within the scope of Appendix FM;
(4) as to her claim to be financially dependent on her father, there was nothing to prevent her father providing financial support from abroad in the event that she returned to India; and
(5) there was nothing that constituted exceptional circumstances which might warrant a grant of leave outside the Immigration Rules.
Following this decision, the Secretary of State made directions for the Appellant's removal to India under s. 47 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”).
The Appellant appealed against the Secretary of State's decision of 2 nd December 2014.
FTT decision
On 8 th July 2015, the First-Tier Tribunal (“FTT”) allowed the Appellant's appeal against the Secretary of State's decision of 2 nd December 2014. FTT Judge Roopnarine-Davies found that:
(1) the Appellant and her family lived together as a close family unit (paragraph 7);
(2) she has family in India but her close family are in the UK (paragraph 7);
(3) the Appellant was not living an independent life and was financially and emotionally dependent on her family (paragraph 8);
(4) the documentary evidence produced did not relate to the sale of the family home in India nor has it been shown that the family home has been sold as claimed (paragraph 7); and
(5) the Secretary of State had failed to demonstrate that she had exercised her discretion whether to grant leave outside the Rules (paragraph 11).
On 28 th October 2015, the FTT granted the Secretary of State permission to appeal against its decision.
Correspondence regarding Punjabi translator
On 18 th November 2015, the Appellant's solicitors asked the Upper Tribunal to provide an Indian Punjabi dialect interpreter.
On 19 th November 2015, the Upper Tribunal refused the Appellant's request.
On 23 rd November 2015, the Appellant's solicitors renewed the request for an interpreter on the basis that the Appellant's father “ is the main sponsor who is unable to speak English, and the evidence of both parents is extremely important in this application”.
On 23 rd November 2015, the Upper Tribunal responded materially as follows:
“This is an error of law hearing at which oral evidence will not be required, whether from Miss K directly, or as you now indicate, Miss K's father. Please be aware that in any case Miss K's father is not noted on the Tribunal database as acting as a recognised sponsor in this appeal. If an interpreter is required simply so that the parties may follow the proceedings, they or your offices are welcome to engage one, but this would not be a matter for the Tribunal.”
UT decision
On 1 st February 2016, the Upper Tribunal (“UT”) allowed the Secretary of State's appeal against the FTT's decision made on 8 th July 2015. The UT set aside the FTT's decision on the grounds that it involved an error of law and reheard the matter itself and dismissed the Appellant's appeal against the Secretary of State's decision dated 2 nd December 2014. In his decision, Deputy UT Judge Woodcraft held as follows:
(1) The FTT had erred in law by concluding that the Secretary of State had not exercised her discretion whether to grant leave outside the Rules (paragraphs 18–21);
(2) The FTT had also erred in failing to determine the Appellant's Article 8 claim for herself rather than remitting it to the Secretary of State (paragraph 21);
(3) The Appellant has a family life with her father, mother and brother who are all in the United Kingdom (para 30). It was relevant that her father had indefinite leave to remain but that her mother and brother had not yet been granted such leave (though they had applied for it). It was therefore possible that her mother and brother could return to India as well (paragraphs 30–31);
(4) The Appellant has a financial dependence on her family since (as a student) she is not able to work. If she were to return to India, her family in the UK could continue to support her financially. The Appellant also had a qualification that would enable her to obtain employment and become self-sufficient upon return. The issue of financial dependency was therefore not a factor “afforded any significant weight” (paragraph 32);
(5) The Appellant's relationship with her parents and brother “did not amount to more than the normal emotional ties that one would expect to see in a family” (paragraph 33);
(6) There was no evidence to show that the family property in India has been sold and therefore “there is accommodation for the Appellant to return to” although it was “a matter for her whether she chooses to live in such a property or to relocate” (paragraph 34);
(7) There was “no background evidence to support the Appellant's contention that as a single female she would be at particular or indeed any risk” and the judge found that he did not “consider that I have been given a full account of the Appellant's family's circumstances in India or indeed who remains there” (paragraph 35).
(8) He did not accept that the Appellant would face insurmountable obstacles in returning to India: “Indeed it is my view that it would be reasonable to expect that she could return” (paragraph 35);
(9) It would not be a disproportionate interference with the family life the Appellant has with her family in the UK to refuse her application for further leave and to require her to return to India (paragraph 36);
(10) The Appellant's private life in the UK “was established whilst her status here was precarious as such little weight can be ascribed to it in the proportionality exercise” and the judge did not accept that the Appellant had “lost all contact with her friends in India” (paragraph 37).
Permission to appeal
The Appellant appealed against the UT's decision of 1 st February 2016. Permission to appeal was refused by UT Judge Kebede on 23 rd February 2016. Permission to appeal was refused by Maurice Kay LJ on 21 st June 2016. Permission to appeal was, however, granted by Bean LJ on 13 th November 2017.
It is regrettable that it is now over three years since the instant decision of the UT under appeal.
The Appellant was represented by Mr Rowan Pennington-Benton and the Secretary of State was represented by Mr Eric Metcalfe, for whose helpful written and oral submissions the Court was grateful.
Grounds of Appeal
The Appellant appeals against the UT's decision of 1 st February 2016 on two grounds:
(1) Ground 1: The UT erred in finding that the FTT had made an error of law in finding that the Secretary of State had wrongly determined that there was no arguable Article 8 claim outside of the Rules which engaged his powers to remit the decision.
(2) Ground 2: it was procedurally irregular and unfair in the premises not to provide an interpreter and/or to hold a rehearing with no translator present.
Secretary of State's submissions
On behalf of the Secretary of State, Mr Eric Metcalfe invites the Court to dismiss the Appellant's grounds on the following reasons:
(1) The UT was right to conclude that the Secretary of State had properly considered whether the Appellant should be granted leave to remain outside the Immigration Rules on the grounds of her right to family and private life under Article 8 ECHR; and
(2) There is nothing to show that the UT's refusal to arrange a translator for the Appellant's parents at the rehearing of her appeal, or any other aspect of the proceedings before...
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Upper Tribunal (Immigration and asylum chamber), 2019-09-04, HU/16515/2018
...The Judge based his decision on the facts as they were at the hearing. This approach was condoned and adopted in KK (India) v SSHD [2019] EWCA Civ 369 at ‘[Counsel] sought to argue that the fact that the Appellant's mother and brother might obtain ILR was a relevant factor which the UT Judg......