Sindujan Chandran v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Lord Justice Popplewell,Lord Justice Dingemans |
| Judgment Date | 14 May 2020 |
| Neutral Citation | [2020] EWCA Civ 634 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2019/1951 |
| Date | 14 May 2020 |
[2020] EWCA Civ 634
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE WARR
PA/06172/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Flaux
Lord Justice Popplewell
and
Lord Justice Dingemans
Case No: C5/2019/1951
Andrew Gilbert (instructed by Sriharans Solicitors) for the Appellant
Zane Malik (instructed by Government Legal Department) for the Respondent
Hearing date: 5 May 2020
Approved Judgment
Introduction
The appellant appeals, with the permission of Newey LJ, against the decision of the Upper Tribunal (Immigration and Asylum Chamber) promulgated on 13 June 2019, which dismissed the appellant's appeal against the decision of the First-tier Tribunal promulgated on 15 February 2019, dismissing the appellant's appeal against the decision of the respondent refusing him discretionary leave to remain.
Factual background
The appellant was born on 31 July 1990 in Bahrain to Sri Lankan parents. He entered the United Kingdom clandestinely with his mother Ledchumi Chandran on 8 March 2007. She made an asylum claim on 12 March 2007, with the appellant included as a dependant since he was under 18 at the time. The claim was refused by the respondent on 10 April 2007 and her appeal from that decision was dismissed by the Asylum and Immigration Tribunal on 22 May 2007, with a finding that her account was fabricated.
On 28 August 2008, the solicitors who act for both the appellant and his mother made further representations on behalf of the appellant's mother, highlighting deteriorating country conditions in Sri Lanka. The case was moved to the Older Live Cases Unit under the Legacy criteria. Both the appellant and his mother were given permission to work in 2015. On 26 January 2016, the respondent sent a Further Submissions Decision to the appellant's mother concluding that she did not qualify for leave on any basis. No direct mention was made of the appellant as a dependant. On 8 February 2016, the appellant's mother was granted Discretionary Leave to Remain in the UK until 26 July 2018 but he was not granted leave in line with his mother.
Accordingly, on 18 February 2016, the solicitors wrote to the Secretary of State, pointing out that when the appellant's mother first made her application he was a dependant minor and asking that he be given leave to remain in line with her. On 1 March 2016, the respondent replied that since the appellant was no longer a minor, he would need to make an application in his own right.
On 18 April 2016, the appellant lodged an asylum claim in his own right claiming that if returned to Sri Lanka he would be viewed as someone trying to revive the LTTE. That claim was refused and certified with no in-country right of appeal. He issued Judicial Review proceedings and on 7 August 2017, Upper Tribunal Judge Kekic granted permission on the grounds, inter alia, that it was arguable that, given the wording of the respondent's policy on discretionary leave, the appellant should have been treated as a dependant when his mother's further submissions were considered, even though he was 18 at the time. The respondent agreed to reconsider the decision and the application was again refused on 27 April 2018. It is that decision which was the subject of the appeal with which we are concerned.
The decisions of the Tribunals
At the outset of the hearing before the First-tier Tribunal, counsel for the appellant, Mr Andrew Gilbert (who also appeared before this Court) told the judge that the asylum claim was not being pursued and the appeal would proceed on the basis of Article 8 only, both within and outside the Immigration Rules. The First-tier Tribunal judge considered first the claim under paragraph 276ADE. She noted at [25] that applicants of 18 and above who have lived in the UK for less than 20 years must show that there would be very significant obstacles to their integration into the country to which they are to be sent. Having considered the evidence in detail, the judge concluded at [35] that there were no very significant obstacles to the appellant's integration into Sri Lanka so he did not meet the requirements for leave to remain on the grounds of private life in the UK in paragraph 276ADE.
The judge turned to consider the Article 8 claim outside the Rules. She noted that the appellant had been in a relationship with Dhiviya Thangabelu but was no longer because her father had sent her abroad when he became aware the appellant had no status in the UK. There had been no contact since.
The judge also noted at [38] that Mrs Chandran now had limited leave to remain until 14 June 2021. At [39] the judge said that she was prepared to accept the appellant was more than normally emotionally dependent on his mother and they had a family life which engaged Article 8. At [41] the judge said the respondent's decision furthered the legitimate aim of proper and effective immigration control and that, for the decision to be disproportionate, the consequences for the appellant needed to be more than mere hardship or difficulty.
At [42] the judge made an important finding that there was no reason why Mrs Chandran could not accompany her son to Sri Lanka, if he was required to return there. The effect of the rejection of her asylum claim is that she was merely an economic refugee. She had lived in Sri Lanka until she was 35 and worked as a housemaid which she could utilise to find employment. There was no basis for a finding that family life could not reasonably be pursued in Sri Lanka.
The judge then took account of the public interest considerations under section 117B of the Nationality, Immigration and Asylum Act 2002 and made findings about the appellant's private life, concluding at [44] that there was no indication that the appellant was currently engaging in any meaningful way with the community and his private life was not of such a quality as to weigh heavily in the balancing exercise.
At [45] the judge quoted the first two paragraphs of paragraph 3.8 of the Asylum Policy Instructions (“API”): Dependants and Former Dependants (May 2014):
“Any dependant, who is currently under 18 and was included in the original asylum or human rights claim, should continue to be treated as a dependant until any further submissions are concluded.
Any dependant included in the original asylum or human rights claim, who reaches 18 before the further submissions are decided, should normally continue to be treated as a dependant for the purposes of the further submissions application. See section 3.7 above for details on serving immigration paperwork to dependants over 18.”
The judge said that she was aware of what UTJ Kekic had said about it being arguable that on this wording the appellant should have been treated as a dependant when his mother's further submissions were considered, even though he was 18 at the time. However, the judge disagreed with that analysis, saying:
“I consider that the dependant in question needs to be under the age of 18 as at the date that the further submissions are lodged. The second paragraph of 3.8 refers to “the further submissions” not “any further submissions” and so must relate to the further submissions alluded to in the first paragraph i.e. those submitted when the dependant was under 18. When Mrs Chandran's further submissions were lodged on 28 August 2008…her son had already attained the age of majority. In my judgment the appellant did not fall within the ambit of the respondent's policy.”
The judge then went on to consider the question of delay. On behalf of the...
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Aminat Saliu v The Entry Clearance Officer
...of State for the Home Department [2008] UKHL 41, [2009] 1 AC 1159 and R (Chandran) v Secretary of State for the Home Department [2020] EWCA Civ 634. These cases show that though delay is never decisive it can be relevant to the determination of a human rights claim of the present kind. Bu......