Upper Tribunal (Immigration and asylum chamber), 2014-06-06, IA/29731/2013 & IA/29721/2013

Appeal Numbers: IA/29731/2013

IA/29721/2013

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: IA/29731/2013

IA/29721/2013

THE IMMIGRATION ACTS

Before

DEPUTY UPPER TRIBUNAL JUDGE PEART

Between

mr chukwunweike stephen okoh

mr ogechukwu michael okoh

(anonymity direction not made)

Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr Rendle of Counsel

For the Respondent: Ms Holmes, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellants are both citizens of Nigeria, born as to Chukwunweike Stephen Okoh on 14 September 1994 and Ogechukwu Michael Okoh on 3 January 1999; they are brothers. (Stephen and Michael)

2. On 25 July 2011 they both applied for leave to remain in the United Kingdom on human rights grounds outside the Immigration Rules. On 26 June 2013, the respondent refused the applications because she was not satisfied that they qualified under paragraph 276ADE or under Appendix FM and there were no exceptional, compassionate circumstances to justify the grant of leave outside the Immigration Rules.

3. The appellants’ appeals against the respondent’s refusal were allowed by Judge Miles (the judge) in a determination promulgated on 27 February 2014. The Secretary of State’s grounds claimed the judge arguably made a material error of law in that he misdirected himself by finding that the appellants had been living in the United Kingdom continuously for seven years. The respondent said the appellants entered the United Kingdom as visitors on 20 December 2006 but at an unknown date soon afterwards they returned to Nigeria and re-entered the United Kingdom on the same basis on 30 March 2007 and had remained since. The Secretary of State argued that as the appellants entered the United Kingdom as visitors, they were not living in the United Kingdom continuously, particularly as they had returned to Nigeria before re-entering the United Kingdom as visitors. As such, the respondent argued that the judge’s finding that the appellants had been living in the United Kingdom continuously was flawed and further, that his findings under Article 8 were equally flawed because he failed to identify any compelling circumstances.

4. Judge Kelly granted permission to appeal on 18 March 2014 because he found that in holding that paragraph 276ADE and the provisions of Appendix FM applied only to applications that were made on or after 9 July 2012 (see [21] of the determination) it was arguable that the judge failed to apply the “transitional provisions and interaction between part 8 Appendix FM and Appendix FM-SE“ (with particular reference to paragraph A277C that were set out at the commencement of Part 8 of the Rules and that he thus erred by failing to adopt the approach set out in Gulshan when considering whether to allow the appeal on the ground that the appellants’ removal would be incompatible with their rights under Article 8. It was also arguable that having decided that the new Rules were inapplicable to the facts of the appeal, it was inconsistent for the judge thereafter to calculate the period of the appellants’ continuous residence in the United Kingdom by reference to the Home Office guidance relating to the application of those Rules. See [26] and [27] of the determination.

5. Following an error of law hearing, I found that the judge did not adopt the correct approach. He started out in error in terms of the applicability of the Rules and the rest of his determination was built upon that inadequate foundation such that I set aside his decision to be remade by me.

Evidence

6. The appellants’ evidence is contained in the appeal bundle prepared for the hearing before the judge, the supplementary bundle before me including their statements dated 27 May 2014, the statement of Ryan Thompson, Social Worker and the oral evidence of the appellants, Sarah Bass and Ryan Thompson. I will summarise the evidence as necessary in the course of explaining the reasons for my decision.

7. I have considered each item of evidence and have reviewed that evidence in the round. The fact that I have not specifically referred to any particular piece of evidence in my determination does not mean that the evidence has not been considered in the manner I have described.

Findings and Conclusion

8. In this appeal the burden lies with the appellants to prove the facts and matters they rely upon. Their case was advanced on the basis that they have established a private and family life in the United Kingdom since their arrival here in 2006 and that their removal in consequence of the respondent’s decision would breach their rights under Article 8. The standard of proof is that of a balance of probabilities. See EH (Iraq) [2005] UKIAT 00065.

9. The development of the case law is significant.MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC) found that the new Immigration Rules were not a “complete code” when it came to Article 8 claims as decisions still had to be compliant with Section 6 of the Human Rights Act 1998 [25]. The assessment remained in two stages, first the application of the Rules and second, the application of Article 8 [32] – [41]. In one important respect, the new Rules affected the second stage Article 8 assessment because they gave greater specificity to which circumstances attracted the greatest weight in the public interest. The degree to which the new Rules changed the interpretation of the public interest should not be exaggerated. Previous case law held that the proportionality assessment did not treat the public interest as immutable such that the Upper Tribunal found that in most cases, the new Rules established an “exceptionality threshold” (my emphasis) for the public interest to be outweighed [42] – [45].

10. Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 00640 (IAC) See headnote:

“On the current state of the authorities:

(a) the maintenance requirements of E-LTRP.3.1-3.2 stand, although Blake J in R (on the application of MM) v Secretary of State for the Home Department[2013] EWHC 1900 (Admin) said that they could constitute an unjustified and disproportionate interference with the ability of spouses to live together; he suggested that an appropriate figure may be around £13,400, and highlighted the position of young people and low wage earners caught by the higher figure in the rules;

(b) after applying the requirements of the Rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them: R (on the application of) Nagre v Secretary of State for the Home Department[2013] EWHC 720 (Admin);

(c) the term “insurmountable obstacles” in provisions such as Section EX.1 are not obstacles which are impossible to surmount: MF (Article 8 – new Rules) Nigeria[2012] UKUT 00393 (IAC); Izuazu (Article 8 – new Rules)[2013] UKUT 00045 (IAC); they concern the practical possibilities of relocation. In the absence of such insurmountable obstacles, it is necessary to show other non-standard and particular features demonstrating that removal will be unjustifiably harsh: Nagre.

The Secretary of State addressed the Article 8 family aspects of the respondent’s position through the Rules, in particular EX1, and the private life aspects through paragraph 276ADE. The judge should have done likewise, also paying attention to the guidance. Thus the judge should have considered the Secretary of State’s conclusion under EX.1 that there were no insurmountable obstacles preventing the continuation of the family life outside the UK. Only if there were arguably good grounds for granting leave to remain outside the Rules was it necessary for him for Article 8 purposes to go on to consider whether there were compelling circumstances (my emphasis)not sufficiently recognised under the Rules.”

11. Shahzad (Art 8: legitimate aim) [2014] UKUT 00085 (IAC)

“(i)Failure on the part of the Secretary of State to identify in her decision any legitimate aim under Article 8(2) of the ECHR does not prevent a court or tribunal from seeking to do so on the basis of the materials before it.

(ii) “Maintenance of effective immigration control” whilst not as such a legitimate aim under Article 8(2) of the ECHR can normally be assumed to be either an aspect of “prevention of disorder or crime” or an aspect of “economic wellbeing of the country” or both.

(iii) “[P]revention of disorder or crime” is normally a legitimate aim both in expulsion cases where there has been criminal conduct on the part of the claimant and in expulsion cases where there have only been...