Upper Tribunal (Immigration and asylum chamber), 2024-04-11, UI-2021-001311

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2021-001311
First-tier Tribunal No: PA/50033/2021
IA/02104/2021
THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 11 April 2024

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

ALICE SHIMIKA
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr F Naeem, Solicitor from Longfellow Solicitors
For the Respondent: Ms A Everett, Senior Presenting Officer

Heard at Field House on 25 March 2024

RE-MAKING DECISION AND REASONS

Introduction
1. This is the re-making decision in the appellant’s appeal against the respondent’s refusal of her human rights claim. The claim was made through further representations dated 25 September 2017 and the refusal thereof is dated 9 November 2020.

2. The appellant is a national of Zimbabwe, born in 1980. It is accepted that she entered the United Kingdom with leave on 23 October 2002. She obtained extensions of leave as a student up until 31 August 2007. She then overstayed. An asylum claim was made in April 2009 and this was refused in August of that year. A subsequent appeal was refused in December 2009. Nothing was seemingly done by the appellant (or indeed the respondent) between then and the making of the further representations in September 2017. The respondent’s 2020 refusal relates to those further representations.

3. The appellant appealed against the respondent’s refusal of her human rights claim. That appeal was dismissed by the First-tier Tribunal in a decision promulgated on 7 October 2021. The appellant challenged that decision and, by a decision promulgated on 31 March 2022, a panel of the Upper Tribunal (Upper Tribunal Judge Blum and Deputy Upper Tribunal Judge Grimes) concluded that the judge had materially erred in law and that his decision should be set aside.

4. The panel agreed with the respondent’s concession at the error of law hearing to the effect that the judge had failed to adequately address the best interests of the appellant’s child, a British citizen, and whether it would have been reasonable for that child to have left the United Kingdom, with reference to section 117B(6) NIAA 2002: [3]-[7]. The panel also concluded that there was no error by the judge in respect of his rejection of the protection claim. Indeed, the appellant’s representative had withdrawn the challenge to the aspect of the judge’s decision at the error of law hearing: [6]. Therefore, the sole basis on which the re-making was to take place was in relation to Article 8: [8]. The appeal was retained in the Upper Tribunal for a resumed hearing in due course.

5. The appeal was then listed before me on 5 May 2023. Unfortunately, the appellant’s representatives had failed to provide any additional evidence and I was not satisfied that I had sufficient information on which to make a fair and comprehensive re-making decision. The hearing was adjourned with directions.

The issues
6. At the outset of the resumed hearing on 25 March 2024 I sought to clarify and confirm the issues with which I was now concerned in this appeal. Both representatives helpfully obliged.

7. The sole overarching issue for me to determine is whether the appellant’s removal from the United Kingdom would breach her Article 8 rights, both in relation to private and family life.

8. In respect of the appellant’s private life (Issue 1), she relies on the assertion that she has lived continuously in United Kingdom for over 20 years and that this would render her removal disproportionate. She asserts that she falls within Appendix Private Life to the Immigration Rules (“Appendix PL”) and that the appeal should be allowed with reference to TZ (Pakistan) v SSHD [2018] EWCA Civ 1109.

9. Ms Everett submitted that this issue constituted a “new matter” under section 85(5) NIAA 2002. I informed the parties that I agreed with that position, having regard to the relevant case-law of the Upper Tribunal: for example, Mahmud (S.85 NIAA 2002 – ‘new matter’) Iran [2017] UKUT 488 (IAC).

10. Having considered the respondent’s position, Ms Everett proceeded to give consent for me to consider the 20 years’ residence issue in this appeal. That consent did not extend to a concession as to the fact of the claimed continuous residence. I will address that particular issue later on.

11. Ms Everett did, however, confirm that the only period of residence which remained in dispute was between 2009 and 2015. In view of the evidence as a whole, that position was entirely fair and appropriate.

12. In respect of family life (Issue 2), it is common ground that the appellant is in a subsisting and genuine relationship with a naturalised British citizen, Mr Richard Shoniwa. They have undertaken a religious ceremony, although they are not married according to law. The couple now have two British citizen children: the first was born in August 2021, and the second in July 2023. In light of this, the core legislative provision to be...