Rajendran (s117B – family life)

This case raises a particular issue about the scope and ambit of the “little weight” considerations to be found in s117B(4(a)) and (5) of the Nationality, Immigration and Asylum Act 2002, the full text of which is set out in the Appendix.

The appellant is a 62 year old citizen of Canada who is a widow and is blind. She had come to the UK as a visitor from 4 August 2013 to 30 January 2014. On 31 January 2014 she returned to Canada. On 19 February 2014 she returned to the UK. She was questioned by immigration officers and admitted for 3 months only. On 15 May 2014 her solicitors applied on her behalf for leave to remain in the UK on the basis of her private life. In the UK she has a younger daughter, and a son-in-law, the latter being a British citizen who had lived in the UK since September 2005 having qualified as a software engineer. Her younger daughter, like the appellant, is a Canadian citizen. Her younger daughter has leave to remain in the UK until 4 March 2016. The couple now have a son born in August 2013.

The appellant had migrated from Sri Lanka to British Columbia in Canada with her younger daughter in October 2007. In Canada the appellant has another older daughter, who has a son born in December 2007 who has been diagnosed in 2009 with autism spectrum disorder. The appellant and her younger daughter originally lived with her older daughter and her husband in Vancouver, British Columbia. In November 2009 they moved out and rented a room in a house in the same area. After her younger daughter married a man who lived in the UK, she left in August 2012 to join him there. The appellant then lived on her own. Because of her disability the family arranged for a carer to come and attend to her some of the time. It was said that language problems meant it was not possible for that care to be effective. She was said to have had difficulties looking after her day to day affairs, requiring long-term personal care as a result of her disability. Since the departure of her younger daughter from Canada, she was said to have suffered depression and loneliness leading to deterioration in her medical condition.

In refusing the appellant's application on 14 July 2014 the respondent stated that the appellant did not qualify under paragraph 276ADE(1) of the Immigration Rules, noting, inter alia, that since she had family members in Canada it could not be said she had lost all ties with that country.

The respondent also considered whether there were any exceptional circumstances warranting a grant of leave on Article 8 grounds outside the Rules. The respondent noted that the appellant claimed to be a dependent on her family members in the UK. The respondent also noted that she was said to be suffering from various medical conditions, but considered that treatment for these would be available for her in her home country and that, if she was seeking to come as a dependent, she could return to her home country and apply from there for entry clearance. The appellant appealed, maintaining that she had no close relations in Canada to provide the required level of support and care for her whereas by contrast she had a strong family life ties with her younger daughter and her family in the UK.

The appellant appealed. Following a hearing which took place on 17 July 2015, First tier Tribunal (FtT) Judge Seelhoff dismissed the appeal. In a decision sent on 27 July 2015 the judge noted that the respondent had chosen not to be represented and that it was just to proceed with the case in the respondent's absence. He noted that counsel for the appellant, Mr Richardson, “sensibly accepted that there is adequate health and social services care in Canada …and that the case is solely based on Article 8 family life rights”.

The appellant gave evidence during which she said that when in Canada her older daughter who was settled in that country did come to see her to take her to the doctor but did not see her every week as she (the daughter) was suffering from depression and had problems caring for her autistic son. The appellant said that the decision that she should stay in the UK had only been taken after she had returned to the UK on 19 February 2014. Her younger daughter also gave evidence in the course of which she said that she had contacted social services in Canada for help with her mother and had been told they could not help as she had been sponsored by her older sister. The family had looked into residential care homes in Canada but had not found anything suitable because of the language and cultural problems. She said that her older sister lived some 20 minutes walking distance from the appellant and had met the appellant at the airport last time and also driven her to the airport on the occasion of her last departure from Canada to the UK. The judge also had before him documentary evidence which included a number of doctor's letters including a GP letter dated 6 February 2015 confirming that the appellant was blind and suffering from anxiety with depression, hypertension and type II diabetes and was completely dependent on her younger daughter's assistance for her day-to-day activities and that her diabetes is poorly controlled.

The judge noted that he had only been asked to consider the claim based on Article 8 outside the Rules but that reviewing the requirements under the rules relating to adult dependent relatives contained in Appendix FM, the fact that it had been conceded that care was available in Canada meant that the application had to fail and not only because the appellant had been admitted as a visitor and was not eligible to switch categories.

As regards Article 8 outside the Rules, the judge cited case law governing how to approach Article 8 claims outside the Rules, including R (Nagre) v SSHD[2013] EWHC 720 (Admin) and added that it was “also necessary to have regard to a number of mandatory factors contained in s.117B of the Nationality, Immigration and Asylum Act 2002 as amended”.

The judge said he accepted the appellant has a family life in the UK with her younger daughter, son-in-law and grandson and that the decision refusing leave to remain amounted to an interference with that right. In this regard he noted that her younger daughter and son-in-law appeared to have taken responsibility for the appellant's care, at least in the context of her most recent period of stay in the UK: see [34] and [36]. At [34] the judge said that:

“I accept that family life between children and adult dependents relatives can engage Article 8 in special circumstances and in a case like this where there has clearly been a caring and dependent relationship….”

However, when assessing the proportionality of the decision under challenge, the judge considered there were several (interrelated) factors that made the refusal of leave proportionate. First, the appellant did not meet the requirements of the Immigration Rules and there was a public interest in persons in the appellant's position not being eligible for leave to remain in the UK where there was adequate care available in their country of nationality ([39]). Second, the family had not been entirely forthcoming about the history of the appellant in Canada and the circumstances of her coming to the UK on a second occasion. At [35] the judge said that:

“I consider it significant that the family thought the Appellant entitled to return to the UK for a further six months within two weeks of leaving the UK after a six month visa. The family clearly considered it acceptable for visit visas to be used as a way of the Appellant effectively living in the UK and it was only when this was challenged by an entry clearance office on admitting the Appellant for three months that the Appellant sought a longer period of leave.”

The lack of candour regarding the appellant's visit also meant there was a further public interest consideration:

“I also consider that there is public interest in preserving the integrity of the immigration system and I do believe that there has been a degree of knowing abuse in this application which is evident from the timing of the decisions, the apparent belief that it was acceptable for the Appellant to spend nearly a year in the UK as a visitor in a 12 month period providing she had left in the middle, and from the inaccurate information that apparently found its way to the Appellant's Doctor's letter” ([39].

Third, linked to this, the judge was not satisfied that the daughter in Canada took...