Upper Tribunal (Immigration and asylum chamber), 2016-01-07, IA/31913/2014

JurisdictionUK Non-devolved
Date07 January 2016
Published date26 August 2016
Hearing Date18 December 2015
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberIA/31913/2014

Appeal Number: IA/31913/2014

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/31913/2014


Heard at Field House

Decision and Reasons Promulgated

On 18 December 2015

On 7 January 2016










For the Appellant: Ms A Fijiwala, Senior Home Office Presenting Officer

For the Respondent: Mr A Vaughan (counsel)


1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. The Secretary of State for the Home Department brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Perry, promulgated on 13 January 2015 which allowed the Appellant’s appeal on article 8 ECHR grounds


3. The Appellant was born on 28/10/1993 and is a national of Brazil. The appellant’s mother entered the UK on 2nd October 2003. The appellant’s stepfather entered the UK in October 2003. In March 2004 the appellant’s mother and stepfather married in the UK. The appellant entered the UK on 10 July 2004. The respondent granted the appellant’s mother and stepfather leave to remain in the UK until 31 July 2007.

4. On 12 December 2008 the appellant’s mother submitted an application for leave to remain outside the rules on the basis of her article 8 ECHR rights. The appellant and his step father were listed his dependants on that application. The respondent refused that application initially on 3 August 2009. It was discovered that the decision was made in error because the appellants’ then representatives had submitted an application which contained matters which did not relate to these appellants but, in fact, related to one of their other clients. When the mistake was discovered further representations were made leading to a refusal decision from the respondent dated 23rd of August 2013. In the face of a judicial review challenge from the appellants, the respondent reconsidered that decision and issued a fresh refusal decision on 24 July 2014.

The Judge’s Decision

5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Perry (“the Judge”) The Judge allowed the appellant’s appeal on article 8 ECHR grounds. At the same time, the Judge considered the appeals of the appellant’s mother and stepfather, and dismissed their appeals (IA/31910/2014 & IA/31911/2014). The decisions in relation to the appellant’s mother and stepfather are the subject matter of a separate appeal to the Upper Tribunal

6. Grounds of appeal were lodged and on 23 February 2015 Judge Parkes gave permission to appeal stating inter alia

2. The appellant had applied with his parents for LTR under article 8. The applications were refused. The appellant’s parents’ appeals were dismissed and they have sought permission to appeal. His appeal was allowed outside the rules under article 8.

3. The grounds argued that the judge erred in the proportionality assessment with regard to sections 117A and 117B and that the factors in section 117A(2) and 117B were not considered. It appears that the judge did not have regard to the precarious nature of the appellants LTR and accorded greater weight than it merited.”

The Hearing

7. (a) Ms Fijiwala for the respondent told me that the decision does not contain any explicit reference to section 117B of the 2002 Act, nor other any findings in fact directed at the statutory provision. She argued that at [70] it is hard to see whether the Judge is finding in favour of the appellant on the basis of family life or on the basis of private life. At [54] the Judge finds that family life exists between the appellant and his mother and stepfather, so, she argued, the findings at [70] must be findings in relation to private life. She argued (relying on AM (Malawi)) that the appellant’s presence in the UK has been precarious. Subsections (4) & (5) of section 117B require little weight to be given to such private life when presence in the UK is precarious. The Judge failed to consider the precarious nature of the appellant’s presence in the UK and, she said, attached to much weight to any private life established in the UK. Ms Fijiwala relied on the cases of Forman and Deelah.

8. Mr Vaughan, for the appellant, took me through the entire terms of section 117B of the 2002 Act, and argued that although the Judge did not use those provisions as a specific checklist, it was abundantly clear from the decision that he was mindful of the provisions of s117B, to which he clearly refers at [44], and which he clearly kept in mind in making his findings of fact. Mr Vaughan told me that a careful reading of the decision discloses that there is nothing which had not been considered by the Judge and that if the appellant were to make an application today he would succeed in terms of the rules because he has now spent more than half of life UK & is under the age of 25 years. He relied on the case of SS Congo and told me that the determination in relation to this appellant does not contain any errors of law material or otherwise.


9. In Forman (ss 117A-C considerations) [2015] UKUT 00412 (IAC) it was held that the list of considerations contained in section 117B and section 117C of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) is not exhaustive. A court or tribunal is entitled to take into account additional considerations, provided that they are relevant in the sense that they properly bear on the public interest question; in cases where the provisions of sections 117B-117C of the 2002 Act arise, the decision of the Tribunal must demonstrate that they have been given full effect.

10. In Deelah and others (section 117B – ambit) [2015] UKUT 00515 (IAC) the Tribunal held that Sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002 are not confined to an appeal under section 84(1)(c). They apply also to appeals brought under section 84(1)(a) and (g).

11. In AM (S 117B) Malawi [2015] UKUT 260 (IAC) the Tribunal held that the statutory duty to consider the matters set out in s 117B of the 2002 Act is satisfied if the Tribunal’s decision shows that it has had regard to such parts of it as are relevant.

12. The Judge wrote a detailed and careful decision. The first two appellants appealed against that decision and, in a separate decision of the Upper Tribunal their appeals have been dismissed, and the decision allowed to stand.

13. Although there are no material errors of law in the decision insofar as it relates to the first and second appellants, the position of the third appellant alone is different and is drawn into focus at [70]. It is there that the Judge carries out a proportionality assessment of the third appellant’s case and finds that article 8 ECHR is engaged and that the respondent’s decision is a disproportionate interference with both family and private life. Before reaching that conclusion an inadequate balancing exercise is carried out, and no reference (anywhere in the decision) is made to section 117 of the 2002 Act. From a careful reading the decision it is not clear that the factors set out in section 117 of the 2002 Act have been taken into account.

14. I therefore have to find that the decision is tainted by material errors of law because it races to a conclusion without sufficient explanation. As the decision contains material errors of law, I set it aside. There is sufficient evidence before me to enable me to remake the decision.

Findings of Fact

15. This appellant is a Brazilian national born on 28 of October 1993. The appellant’s mother left Brazil & entered the UK in October 2003. The appellant entered the UK as the dependent of his mother of 10 January 2005. He has remained in the UK since then.

16. Throughout his time in the UK the appellant has lived with his mother and his step-father. It is reasonably foreseeable the appellant’s mother and stepfather will be returning to Brazil as their appeals against the respondent’s decision to refuse to grant leave to remain in the UK have been unsuccessful. The appellant has two adult siblings who are probably still in Brazil.

17. The appellant was seven years old when he arrived in the UK, he is now 22 years old. The appellant has lived in the UK for more than half of his life. Since March 2015 the appellant has had is a strong chance of success with an...

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