Upper Tribunal (Immigration and asylum chamber), 2014-10-21, IA/08584/2014
| Jurisdiction | UK Non-devolved |
| Date | 21 October 2014 |
| Published date | 17 February 2015 |
| Hearing Date | 09 October 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/08584/2014 |
Appeal Number: IA/08584/2014
IAC-AH-dh-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08584/2014
THE IMMIGRATION ACTS
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Heard at Bradford |
Determination Promulgated |
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On 9 October 2014 |
On 21 October 2014 |
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Before
UPPER TRIBUNAL JUDGE clive lane
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
shamin akhtar
Respondent
Representation:
For the Appellant: Mr A McVeety, Senior Home Office Presenting Officer
For the Respondent: Ms M Logan, instructed by J R Jones Solicitors
DETERMINATION AND REASONS
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The respondent, Shamin Akhtar, is a citizen of Pakistan and was born on 6 April 1950. The respondent arrived in the United Kingdom with a visit visa on 2 June 2013. On 20 August 2013, she sought indefinite leave to remain “due to her compassionate compelling circumstances.” The appellant refused that application by a decision dated 13 January 2014. A decision was also taken on the same date to remove the respondent from the United Kingdom by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006. The respondent appealed against that decision to the First-tier Tribunal (Judge Robson) which, in a decision promulgated on 3 July 2014 allowed the appeal under the Immigration Rules. The relevant Rule is 276ADE.
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The judge concluded that the respondent satisfied the requirements of sub-paragraph (i) and, being over the age of 18 years and having not lived in the United Kingdom continuously for more than twenty years satisfied the Rule because she had “no ties (including social, cultural or family) with the country (Pakistan) to which she would have to go if required to leave the UK.
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Mr McVeety, for the appellant, submitted that the issue of “no ties” was the sole issue upon which the appeal turned; whilst accepting that the respondent suffers from poor health, he did not accept [51] that the respondent’s health had deteriorated as rapidly as it had been claimed (between her arrival in the United Kingdom on a visit visa and her application for the leave to remain). The judge had also taken “the view that the visit to the United Kingdom was for [the respondent] to remain in the United Kingdom and receive treatment but not on a private paying basis [52].” The judge was not satisfied [53] that the immigration decision would breach the respondent’s right to a family life in the United Kingdom “as a relationship between the adult [respondent] and her children does not to my mind amount to a family life without evidence of further evidence of dependency.” Ms Logan, for the respondent, did not take issue with the submissions that the appeal did turn on the issue of “no ties” only.
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The judge addressed that aspect of the appeal relatively briefly at [58-60]:
58. However, albeit that there are a significant number of immediate family members in the United Kingdom as Mr Ali [the nephew of the respondent] said in his evidence he had tried to contact some friends and relatives in Pakistan although he had been unsuccessful. This does however suggest that there are other relatives in Pakistan although equally I accept that these will not be close relatives since the majority of the family live now in the United Kingdom.
59. Given the loss of her home and the village in which the home was based I find that she will have lost the social cultural ties that she had with her home area.
60. Although I have expressed my doubts about the motives behind the visit to the United Kingdom it is a fact of the matter that she does undoubtedly suffer from poor health for which she will require medical treatment and family support.”
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Granting permission to appeal, Judge N J Bennett observed:
However, the second ground is arguable because it is arguable that it was not open to the judge to find that a 64 year old widow who had only left her country of origin a year previously had no ties to her country of origin, even though her house had been destroyed, and that the judge thereby arguably erred in law.
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The destruction of the appellant’s house had occurred as a result of the construction of a dam which had led to her village being flooded.
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Mr Logan submitted that the requirement to have ties with one’s country of origin was a “presently existing” requirement as opposed to a historical fact. She submitted that the respondent could not have ties to Pakistan because she no longer had the home there in which she had lived. She referred also to the medical evidence which indicated (as the judge found at [50]) that the respondent needs “some care” with her mobility and daily household activities. She submitted that the appellant could not function in Pakistan on her own and without the help of close family members.
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The Upper Tribunal discussed the “no ties” provisions of the Immigration Rules in Ogundimu (Article 8 – new Rules) Nigeria [2013] UKUT 00060 (IAC) at [119-126]:
119. Mr Allan seeks to persuade us that the meaning of the words ‘no ties (social, cultural or family)’ in paragraph 399A of the Immigration Rules is such that the rule precludes reliance on it by those persons with even the most minimal of links to the country of proposed removal.
120. In approaching our consideration of the meaning of this rule we remind ourselves of the guidance given by Lord Hoffmann in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230:
"[4] Like any other question of construction, this [whether a rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy."
121. In Mahad v ECO [2009] UKSC 16, Lord Brown, when considering the question of construction of the Immigration Rules, said as follows:
“[10] The rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy. The respondent’s counsel readily accepted that what she meant in her written case by the proposition “the question of interpretation is…what the Secretary of State intended his policy to be” was that the court’s task is to discover from words used in the Rules what the Secretary of State must be taken to have intended…that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State’s intention to be discovered from the Immigration Directorates Instructions”
122. We take note of the fact that the use of the phrase “no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK” is not exclusive to paragraph 399A of the Rules; it is also used in paragraph 276 ADE, in the context of the requirements to met by an applicant for leave to remain based on private life in the United Kingdom when such person has lived in the United Kingdom for less than 20 years.
123. The natural and ordinary meaning of the word ‘ties’ imports, we think, a concept involving something more than merely remote and abstract links to the country of proposed deportation or removal. It involves there being a continued connection to life in that country; something that ties a claimant to his or her country of origin. If this were not the case then it would appear that a person’s nationality of the country of proposed deportation could of itself lead to a failure to meet the requirements of the rule. This would render the application of the rule, given the context within which it operates, entirely meaningless.
124. We recognise that the text under the rules is an exacting one. Consideration of whether a person has ‘no ties’ to such country must involve a rounded assessment of all the relevant circumstances and is not to be limited to ‘social, cultural and family’ circumstances. Nevertheless, we are satisfied that the appellant has no ties with Nigeria. He is a stranger to the country, the people, and the way of life. His father may have ties but they are not ties of the appellant or any ties that could result in support to the appellant in the event of his return there. Unsurprisingly, given the length of the appellant’s residence here, all of his ties are with the United Kingdom. Consequently the appellant has so little connection with Nigeria so as to mean that the consequences for him in establishing private life there at the age of 28, after 22 years residence in the United Kingdom, would be ‘unjustifiably harsh’.
125. Whilst each case turns on its...
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