Upper Tribunal (Immigration and asylum chamber), 2018-09-19, [2018] UKUT 336 (IAC) (Thakrar (Cart JR, Art 8, Value to Community))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President |
| Status | Reported |
| Date | 19 September 2018 |
| Published date | 12 October 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Cart JR, Art 8, Value to Community |
| Hearing Date | 02 July 2018 |
| Appeal Number | [2018] UKUT 336 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Thakrar (Cart JR; Art 8: value to community) [2018] UKUT 00336 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 2 July 2018 |
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………………………………… |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
Between
sardabai mansukhlal girdharlal thakrar
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr J Dixon, instructed by KTS Legal Ltd
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer
(1) The fact that an application for permission to appeal involves the assertion that a person’s removal from the United Kingdom would violate his or her human rights does not, without more, engage that part of the second appeal criteria, which allows permission to appeal (or permission for a ‘Cart’ judicial review) to be granted, on the basis that removal constitutes a ‘compelling reason’ for the appeal to be heard. If the position were otherwise, the second appeal criteria would lose their function as a restriction on the power to grant permission to appeal in immigration cases.
(2) Before concluding that submissions regarding the positive contribution made by an individual fall to be taken into account, for the purposes of Article 8(2) of the ECHR, as diminishing the importance to be given to immigration controls, a judge must be satisfied that the contribution is very significant. In practice, this is likely to arise only where the matter is one over which there can be no real disagreement. One touchstone for determining this is to ask whether the removal of the person concerned would lead to an irreplaceable loss to the community of the United Kingdom or to a significant element of it.
(3) The fact that a person makes a substantial contribution to the United Kingdom economy cannot, without more, constitute a factor that diminishes the importance to be given to immigration controls, when determining the Article 8 position of that person or a member of his or her family.
(4) If judicial restraint is not properly maintained in this area, there is a danger that the public’s perception of human rights law will be significantly damaged.
DECISION AND REASONS
A. Introduction
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The appellant, a citizen of Kenya born in July 1948, appealed to the First-tier Tribunal against the decision of the respondent on 23 October 2015 to refuse the appellant’s human rights claim.
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The appellant entered the United Kingdom as a visitor from Nairobi on two occasions in 1999 and once in each of 2005 and 2007.
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In 2008, the appellant obtained from the British High Commission in Mumbai, India further entry clearance as a visitor. She used this entry clearance to enter the United Kingdom on 13 July 2008, until 9 January 2009.
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On 7 January 2009, the appellant submitted an application for indefinite leave to remain as a dependent relative (mother) of a settled person in the United Kingdom. The respondent refused that application and the appellant’s resulting appeal to the Asylum and Immigration Tribunal was dismissed on 18 August 2009.
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The appellant appears to have become appeal rights exhausted on 22 March 2010. Since that time, she has lived in the United Kingdom unlawfully.
B. Refusal and appeal
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On 15 October 2015, the appellant submitted an application for leave to remain on Article 8 grounds. This was refused without a right of appeal on 26 November 2013. She then made an application for settlement, together with a human rights claim which was refused in a letter of decision dated 5 April 2016.
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In the letter of decision, the respondent noted the submissions that had been made by the appellant. This included the assertion that she had established strong family connections and family ties in the United Kingdom “notably with your son and his wife resident with you at [address] In your representations dated 26/10/2015, you also claim to have a daughter residing in the United Kingdom and that you have 18 siblings all resident in this country. You claim to have no family members in Kenya.”
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The decision letter continued by noting that the appellant had provided letters from her United Kingdom doctor, written in 2008 and 2013, stating that she suffered from depression, high blood pressure, high cholesterol, long term insomnia and vitamin D deficiency.
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The respondent concluded that the appellant’s application did not fall within the scope of the Immigration Rules. Accordingly, the respondent gave consideration to whether the appellant’s removal from the United Kingdom would breach her Article 8 rights, or those of her family. The clear thrust of the letter was that the respondent did not consider Article 8 could avail the appellant.
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In her grounds of appeal to the First-tier Tribunal, the appellant referred to the death of her husband, during a family holiday in India in 2008. She said that she was “brought by her children to the United Kingdom on 7/7/2008 as a family visitor”. The grounds stated that the appellant “then left the UK accompanying her son and made a genuine attempt to resettle back in Kenya. Unfortunately things were not in her favour and all turn futile as she could not stay longer as she was unable to bear the deceased husband’s absence in Kenya. The appellant therefore with her son returned to the UK in November 2008.”
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The grounds then made reference to the asserted vulnerability of the appellant; her dependency on her son and daughter; the absence of relatives in Kenya and India; a “genuine attempt” being made “to resettle back in Kenya” which “proved futile”; and all close/extended family members were in the United Kingdom.
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A further explanation of why the appellant could not return to Kenya was given as follows:-
“8. The appellant cannot return back to Kenya as Kenya is no longer her home. She is maintaining that her home was wherever her husband were to be and now that he has passed away and there is nothing left for her there in Kenya. Similarly, although she is an Indian origin she has no life in India to return too as she has been residing in Kenya, alongside her husband, for the last 39 years (sic).”
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Further reference was then made to the appellant’s asserted need for long term care, to be provided by her son and daughter in the United Kingdom.
C. The decision of First-tier Tribunal Judge Eldridge
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The appellant’s appeal was heard by First-tier Tribunal Judge Eldridge, sitting at Hatton Cross in February 2017. In a decision promulgated on 6 March 2017, Judge Eldridge dismissed the appellant’s appeal.
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The judge noted that he had before him a bundle, which extended to 190 pages. He also heard oral evidence from the appellant, her son Mr Thakrar, her daughter, Mrs Madhvani, two of the appellant’s sisters and the appellant’s then 16½ year old granddaughter. It is common ground that the judge also heard evidence from the appellant’s grandson, although the judge did not refer to this in the decision. Before me, Mr Dixon rightly did not seek to make anything of this omission. As we shall see, Mr Dixon’s attack on the judge’s decision was somewhat broader.
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At paragraph 12 of his decision, the judge said this:-
“12. Although I had a great deal of evidence and the Appellant relied upon 190 pages of documents, essentially there is comparatively little that is factually in dispute in this appeal. On that basis I find the following facts:
► the Appellant is a 68-year old national of Kenya;
► in June 2008 her husband died whilst they were in India and she returned to Kenya;
► she came to this country on a family visit in 2008 and returned to Kenya with her son with a view to her settling back into the country and his return to this country;
► she found it difficult to cope on her own and she came back to the United Kingdom, still on the valid visa for a further visit in late 2008;
► she has remained in this country thereafter and without leave since January 2009;
► she has her son and daughter living in this country;
► she lives with her son but every other week speds (sic) most of the week living with her daughter and her two children, who are aged 12 and 16;
► she has health problems but helps look after her son’s house – he has no partner or child;
► on the week she is with the daughter she helps her by assisting with the children and cooking in particular – including fetching children from school when she can;
► she has sisters and brothers living in this country and many other relatives (including, of course, grandchildren) and none now lives in Kenya;
► this includes relatives through her late husband’s side of the family;
► for many years she and her husband...
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