Upper Tribunal (Immigration and asylum chamber), 2014-10-07, IA/37198/2013
| Jurisdiction | UK Non-devolved |
| Date | 07 October 2014 |
| Published date | 30 January 2015 |
| Hearing Date | 08 August 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/37198/2013 |
Appeal Number: IA/37198/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/37198/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 8 August 2014 |
On 7 October 2014 |
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Before
UPPER TRIBUNAL JUDGE CLIVE LANE
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
mankaiarkarasi ratnam
Respondent
Representation:
For the Appellant: Mr E Tufan, a Senior Home Office Presenting Officer
For the Respondent: Mr R Solomon, instructed by Soma & Co, Solicitors
DETERMINATION AND REASONS
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The respondent, Mankaiarkarasi Ratnam was born on 8 March 1946 and is a female citizen of Sri Lanka. She entered the United Kingdom in August 2012 as a visitor. In October 2012, she applied for indefinite leave to remain outside the Immigration Rules. That application was refused by a decision of the appellant dated 21 August 2013. In addition, the appellant gave directions for the respondent’s removal 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 Maciel) which, in a determination promulgated on 10 March 2014, allowed the appeal under the Immigration Rules. The Secretary of State now appeals, with permission, to the Upper Tribunal. I shall hereafter refer to the appellant as “the respondent” and to the respondent as “the appellant” (as they appeared respectively before the First-tier Tribunal).
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The appeal to the Upper Tribunal turns on a single issue. The appellant’s application was considered under paragraph 276ADE of HC 395 (as amended). The appellant could not satisfy the requirement to have lived continuously in the United Kingdom for more than twenty years, but claimed that she had “no ties (including social, cultural or family) with the country to which she would have to go if required to leave the UK [Sri Lanka]” (see Paragraph 276ADE, (vi)). The First-tier Tribunal heard evidence from the appellant’s daughter, Mantila Balachandran and also Mr Thuraiappah Balachandran, the appellant’s son-in-law. The judge considered that oral evidence together with the documentary evidence, which included a report from the general practitioner currently treating the appellant. The judge found [21] that the appellant’s husband had died and her children had left Sri Lanka. The appellant still has siblings living in Sri Lanka. The judge found that the appellant did not have a “continued connection to life” in Sri Lanka. That expression is a quotation from what the judge describes [18] as “modernised guidance” (sic) followed by the respondent’s case workers as to the implementation of paragraph 276ADE although the judge does not provide any detailed source reference. The expression appears in a passage of the guidance document entitled “Assessing whether there are ‘no ties’ (including social, cultural or family) with the country of origin.” This states that:
When you assess whether an applicant has ‘no ties’... with the country to which they would have to go if required to leave the UK a ‘tie’ means something more than just having a nationality of the country or having remote or abstract links to the country. It involves there being a continued connection to life in that country, something which ties an applicant to their country of origin.
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Whatever the exact provenance of the “modernised guidance” I accept that it (1) emanates from the Home Office and (2) represents an attempt to apply the ratio of Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 00060 (IAC). The head note of Ogundimu provides:
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The expectation is that it will be an exceptional case in which permission to appeal to the Upper Tribunal should be granted where the lodging of the application for permission is more than 28 days out of time. Where, in such a case, a judge is minded to grant permission, the preferable course is to provide an opportunity to the respondent to make representations. This might be achieved by listing the permission application for oral hearing.
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The introduction of the new Immigration Rules (HC 194) does not affect the circumstance that when considering Article 8 of the Human Rights Convention “for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in [this] country very serious reasons are required to justify expulsion.” The principles derived from Maslov v Austria [2008] ECHR 546 are still be applied.
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Paragraph 399(a) of the Immigration Rules conflicts with the Secretary of State’s duties under Article 3 of the UN Convention on the Rights of the Child 1989 and section 55 of the Borders, Citizenship and Immigration Act 2009. Little weight should be attached to this Rule when consideration is being given to the assessment of proportionality under Article 8 of the Human Rights Convention.
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The natural and ordinary meaning of the word ‘ties’ in paragraph 399A of the Immigration Rules imports a concept involving something more than merely remote or abstract links to the country of proposed deportation or removal. It involves there being a connection to life in that country. Consideration of whether a person has ‘no ties’ to such a country must involve a rounded assessment of all of the relevant circumstances and is not to be limited to ‘social, cultural and family’ circumstances.
On the facts of the appeal before it, the Tribunal found:
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 own facts, circumstances relevant to the assessment of whether a person has ties to the country to which they would have to go if they were required to leave the United Kingdom must include, but are not limited to: the length of time a person has spent in the country to which he would have to go if he were required to leave the United Kingdom, the age that the person left that country, the exposure that person has had to the cultural norms of that country, whether that person speaks the language of the country, the extent of the family and friends that person has in the country to which he is being deported or removed and the quality of the relationships that person has with those friends and family members.
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In the present appeal, the Tribunal found that it accepted that:
The extent of the medical conditions is joint pains (sic), this means that [the appellant] requires the level of care which she is not getting in Sri Lanka. She needs assistance to do everyday tasks and she was not getting that assistance there despite her son-in-law paying for it. I note that a carer would have to travel to her village and many may be reluctant to do so. I accept that the son-in-law has encountered difficulties in securing a carer and that carer has proved to be inadequate. I note that there is an elderly sister in Sri Lanka but she is getting increasingly unable to assist the appellant and increasingly unable to meet the appellant when the latter was in Sri Lanka. The brothers live some distance away from the appellant are busy with their own families... the appellant was living an isolated life in Sri Lanka with little assistance from a carer... I find that securing a carer to provide this assistance [with bathing and cooking] has been unsuccessful for this family who are loathe to attempt to do so again. The appellant is settled with her family in the UK... She has four of her six children in the UK.
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The appellant seeks to rely on an Administrative Court judgment (Bailey [2014] EWHC 1078 (Admin)). Andrews J found that:
However, taking the Claimant's case at its absolute highest, even if one were to assume in Mrs Bailey's favour that she had no family ties whatsoever with Uganda, (in that she has no family members to whom she could return or with whom she could make contact) and even if one were to ignore the half siblings on the basis that she never had any contact with them anyway, that...
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