R (on the Application of Luma SH Khairdin) v Secretary of State for the Home Department (Nia 2002: Part 5A) (IJR)
| Jurisdiction | UK Non-devolved |
| Judge | Peter Lane,Peter Lane UTJ |
| Judgment Date | 28 November 2014 |
| Neutral Citation | [2014] UKUT 566 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 28 November 2014 |
[2014] UKUT 566 (IAC)
IN THE UPPER TRIBUNAL
Field House
London
UPPER TRIBUNAL JUDGE Peter Lane
Ms K. McCarthy, instructed by Duncan Lewis Solicitors, appeared on behalf of the Applicant.
Mr Z. Malik, instructed by the Treasury Solicitor, appeared on behalf of the Respondent.
R (on the application of Luma Sh Khairdin) v Secretary of State for the Home Department (NIA 2002: Part 5A) IJR
(1) Section 117A of the Nationality, Immigration and Asylum Act 2002 requires the Upper Tribunal, in a judicial review involving Article 8(2) ECHR, to have regard to the considerations mentioned in section 117B and, where relevant, section 117C, when considering the question whether an interference with a person's right to respect for private and family life is justified. The nature of the proceedings is such as to require the Tribunal to determine the questions set out in section 117(1)(a) and (b).
(2) Where the Upper Tribunal is considering, pursuant to section 11 of the Tribunals, Courts and Enforcement Act 2007, whether there is an error of law in the decision of the First-tier Tribunal involving Article 8 proportionality, the task of the Upper Tribunal is confined (at that point) to deciding if the First-tier Tribunal's assessment of where to strike the balance was unlawful, according to the error of law principles set out inR (Iran) [2005] EWCA Civ 982. An Article 8(2) decision of the Secretary of State which is susceptible only to judicial review has, by definition, not received such judicial scrutiny; and it is the task of the reviewing court or tribunal to provide it, albeit via a process that remains different from that of an appeal.
This judicial review, conspicuously well-argued on both sides, concerns challenges brought by Mrs Khairdin, an Iraqi citizen born on 1 July 1942, against decisions of the respondent Secretary of State for the Home Department on 27 November 2012, 8 February 2013 and 13 June 2014, refusing the applicant leave to remain in the United Kingdom. The last of these decisions post-dates the grant of permission; but it was common ground between the parties that it formed part of the respondent's decision-making process and was relevant in deciding whether relief should be granted to the applicant.
Permission to bring judicial review proceedings was granted on 10 January 2014 by Upper Tribunal Judge Allen. Dealing with the decisions of 2012 and 2013, he considered it arguable that there was evidence “which needed addressing as to the degree of family life which it was said was being enjoyed by the applicant in the United Kingdom”. The decision letters had arguably focused on what the position was when the applicant entered the United Kingdom, rather than considering to what extent matters had changed.
The applicant has two daughters and a son. The elder daughter, Dr Asmaa Ali, and her husband are general medical practitioners, living and working in the United Kingdom. They have three daughters, all born in the United Kingdom. The applicant was widowed in Iraq in 1981. Her younger daughter, Aseel Mohamad, was said previously to have provided support for the applicant. She and her husband and children were, however, due to emigrate to Canada.
Between 2005 and 2007, the applicant lived in Malaysia with her son and his family. In 2007 the son and family moved to Australia. On 18 March 2007 the applicant entered the United Kingdom as a visitor. In her visa application, she said that she was receiving financial support from Aseel Mohamad, who then was in Abu Dhabi.
The applicant's house in Iraq was said to have been taken over by militia in 2007. On 22 August 2007 the applicant's visit visa expired. Seventeen days later, the applicant applied for leave to remain, using application form FLR(O). On the applicant's behalf, it was said that she was living with Dr Asmaa Ali in a seven-bedroomed house and that Dr Ali had “built an annex of two bedrooms and a bathroom to accommodate her mother”. The applicant was said to be suffering from diabetes, which required close monitoring. She had no strong ties left with Iraq. By contrast she had formed a close bond with her United Kingdom granddaughters. There was nothing to suggest that, if granted leave, the applicant would have recourse to public funds.
In the respondent's decision of 27 November 2012, it was stated, first, that the applicant did not meet the requirements of the Immigration Rules, which had come into force in July 2012. The application was also considered outside the Rules. In this regard the decision stated as follows:-
“Your claim that you are dependent on your daughter Asmaa Ali who resides in the United Kingdom. The evidence in your Visa Application Form signed 21/02/2007 shows that you are financially dependent on your daughter in the United Arab Emirates. It also stated your intention was to return home in 3 to 6 months after you have visited your daughter and grandchildren and that you have a house in Baghdad. Therefore we do not consider your circumstances sufficiently warrant a grant outside the Rules.
An application was made on your behalf on 27 January 2012. However, your leave to remain expired on 22 August 2007. You therefore did not have leave to remain at the time of your application.
Your application for leave to remain in the United Kingdom has been refused and you no longer have any known basis of stay here. There is no right of appeal against this refusal.”
In 2011 and 2012 the applicant made further submissions and a further application using form FLR(O) (on 27 January 2012). In January 2013 the judicial review proceedings were commenced. On 8 February 2013 the respondent issued a decision to refuse leave to remain.
Having noted that the applicant's daughter in the United Kingdom was “a mature adult living independently with a family of her own”, the decision of 8 February continued as follows:-
“We have also considered the additional circumstances you have raised in your application regarding your dependence upon your daughter in the United Kingdom. Our records show that when you entered the United Kingdom you were dependent upon another daughter in the United Arab Emirates, you were living with your son in Malaysia and that the time of your entry clearance application you own property in Iraq. Your daughter in the United Kingdom can continue to support you financially from abroad. Therefore we do not consider that the grounds you have raised amount to exceptional circumstances as to support a grant of limited leave to remain Outside the Immigration Rules.
…
Your application has been considered exceptionally outside of the immigration rules, with reference to your representations concerning your health. It is claimed that you suffer from diabetes and have been received insulin injections for the past ten years. You were receiving this treatment in Iraq for five years prior to entering the United Kingdom. You were said to have hypertension and high cholesterol. Due to your family's history of heart disease you require regular monitoring. It is not considered that your medical condition reaches the high threshold necessary to engage Article 3 on medical grounds. The possibility that the standard of treatment available to you in Iraq may be inferior to that available in the United Kingdom is not a basis on which to grant leave to remain in the United Kingdom. Your daughter has paid for private consultations for you in the United Kingdom and could finance private treatment in Iraq, if necessary.
You will not be placed in a worse position than other Iraqi nationals. Your circumstances are not considered to be compassionate or compelling. Accordingly, the Secretary of State is not prepared to exercise her discretion in her favour.
With regard to your representations concerning your fear of return to Iraq, as a request for international protection your claim constitutes an asylum application under the terms of paragraph 327(b) of the Immigration Rules. This claim should therefore be made in person at an Asylum Screening Unit.
…
Your application for leave to remain in the United Kingdom has been refused and you no longer have any known basis of stay here. There is no right of appeal against this refusal.”
Following the grant of permission, the respondent issued a second supplementary decision on 13 June 2014, to be read with the decision of 8 February 2013:-
“ Exceptional Circumstances
Consideration has been given whether there are any exceptional circumstances to grant leave to remain outside the rules. However, there are no exceptional circumstances in your client's case which would warrant a grant of leave outside the rules. We have taken into consideration the statements submitted by your client's daughters, son, son in law and another family member. We have seen no evidence as proof that your client's home has been taken over by the Militia as claimed by her son after she came to the UK in 2007. In any event, it would be open to your client to contact national authorities in Iraq in relation to her house. It is particular noted that your client had lived in Iraq for 62 years.
Your client's son claimed he could not financially assist his mother if she returned to Iraq and that she was living with him in Malaysia prior to coming to the UK. It is noted that your client informed the entry clearance officer when she applied for her visit visa on 21 February 2007 that her address in Iraq was her permanent home address. The fact that your client's son is unable to financially assist your client is not a compelling reason to grant her leave to remain in the UK.
Your client's daughter, Aseel Mohammed has stated she is in the process of immigrating to Canada from UAE/Abu Dhabi...
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