Upper Tribunal (Immigration and asylum chamber), 2014-06-30, IA/30080/2013
| Jurisdiction | UK Non-devolved |
| Date | 30 June 2014 |
| Published date | 22 August 2014 |
| Hearing Date | 05 June 2014 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/30080/2013 |
Appeal Number: IA/30080/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30080/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 5 June 2014 |
On 30 June 2014 |
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Before
UPPER TRIBUNAL JUDGE GLEESON
Between
aGNES cHAIDON Filimon
AKA
AGNES CHAIDON PHILLIPS
(no anonymity order made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr S Saeed of Aman Solicitor Advocates (Luton)
For the Respondent: Ms A Everett, a Senior Home Office Presenting Officer
DETERMINATION AND REASONS
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The appellant appeals with permission, in her maiden name, against the decision of the Secretary of State to refuse her indefinite leave to remain on Article 8 grounds. Her appeal was dismissed by First-tier Tribunal Judge Boyes in a determination dated 19 March 2014.
Factual matrix
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The following facts and matters are established in the First-tier Tribunal determination. The appellant is a citizen of Malawi, born there in 1968, but moved with her parents to Zimbabwe in 1969, when she was one year old. The appellant has no family members now in Malawi. She has a residence permit entitling her to live in Zimbabwe. The appellant’s mother died in 1977. After her mother’s death, the appellant’s father moved back to his home village and remarried. The appellant’s sister remained in Zimbabwe. There may be other siblings: that is unclear. She has three children, a son in South Africa and two daughters who live in Botswana. The appellant is still in contact with all her family members.
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The appellant came to the United Kingdom on a visit visa in 2004, to see friends. She overstayed. She never had any lawful status after the expiry of her visitors’ visa, but she met Mr Phillips and they became engaged in 2006 but at that time they needed a Certificate of Approval before they could marry. They commenced living together in his council flat. Mr Phillips had a serious congenital disability which meant that he was never likely to live to be old, and in fact it seems that he survived rather longer than expected. He was not able to work and was supported on benefits, particularly disability benefits. The appellant did not work: looking after Mr Phillips was a full-time occupation and she had no lawful status entitling her to do so. There were before the First-tier Tribunal four fairly short letters from friends of her late husband, Jason Phillips, indicating that the parties had a happy marriage and that the appellant helped him with his illness and his dietary requirements and acted as his carer until his death.
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The couple applied on 13 October 2009 under the discredited Certificate of Approval to marry scheme. It is accepted now that the scheme was a breach of Article 12 ECHR. However, any such breach ended when approval was granted on 19 August 2010: the couple married at Alton Registry Office on 8 October 2010.
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On 25 October 2010, the appellant applied for leave to remain as a spouse but the respondent refused her application on 6 January 2011, with no right of appeal. Before her husband’s death on 25 November 2010. The applicant then submitted an application for leave to remain outside the Immigration Rules on compassionate grounds. On 22 December 2010, her application was refused, again with no right of appeal, on the basis that while the appellant might have established a private and family life in the United Kingdom, in particular with her late husband, she had done so while her status was precarious and had made no effort to regularise her immigration status until 25 November 2010, by which time she had been in the United Kingdom unlawfully for just under six years. The Secretary of State considered that to require the appellant to return to her country of origin, Malawi, would be a limited interference with her private and family life and that skills obtained in the United Kingdom could be used to support herself there. Removal would be proportionate.
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The appellant launched proceedings for a judicial review of that decision and it was during those proceedings that her husband died. On 19 May 2011, following a consent agreement, the Secretary of State granted the appellant a period of leave to remain on compassionate grounds. Her letter to the appellant’s solicitors stated that:
“You state that your client should be granted leave to remain or indefinite leave on the basis of compassionate grounds. However, your client does not qualify for indefinite leave to remain in the United Kingdom under the Immigration Rules. Your client’s circumstances have been reconsidered and the Secretary of State has used his discretion and granted your client six months leave to remain in the United Kingdom outside the Immigration Rules on the basis of compassionate grounds.
The Secretary of State sympathises with your client’s circumstances, however, I must remind your client that after the expiry of this leave she has no basis of stay in the United Kingdom. She is required to leave the United Kingdom immediately, it is noted that she still has family life in Malawi as her children reside there.”
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After her husband’s death, the appellant’s financial and personal situation was dire. She was unable to pay the rent or council tax on her late husband’s flat without his benefits income and was facing eviction. She was unable to afford to pay the undertakers for the cremation service, to enable her to collect and bury her husband’s ashes. The appellant returned to Zimbabwe in September 2011 and went to stay with her sister, well within the period of compassionate leave granted to her.
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On 24 July 2012, the appellant re-entered the United Kingdom, sponsored by her former mother-in-law. It seems that she had satisfied an Entry Clearance Officer in Zimbabwe that she wished to come to the United Kingdom only to pay for the cremation, collect, and bury her husband’s ashes and that she would return at the end of six months. Unfortunately, and for the second time in the story of this appeal, the appellant did not do as she had said. Her six-month visitors’ visa expired on 24 January 2013. The appellant was accommodated by an unspecified friend, not her mother-in-law. She has no dependants, here or anywhere else. In May 2013, her sister in Zimbabwe died.
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The appellant applied for leave to remain in the United Kingdom as her deceased husband’s partner, in order to be close to her late husband’s grave. Her husband had planned to send her to Theology College and she stated that she wished to fulfil that plan. In the alternative, she argued under Article 8 ECHR that her removal to Zimbabwe or Malawi would be disproportionate and in particular that, by reason of the respondent’s unlawful requirement for the appellant and her husband to apply for a Certificate of Approval to Marry, there was in her case an historic wrong of the type considered in Ghising & Ors (Ghurkhas/BOCs : historic wrong; weight) (Nepal) [2013] UKUT 567 (IAC). It is the appellant’s case that if the respondent had granted the Certificate of Approval earlier, the couple would have married in 2006 and by the time of her husband’s death, she would have been entitled to indefinite leave to remain on that basis.
First-tier Tribunal determination
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The First-tier Tribunal held that since the appellant never had leave to remain as a spouse, she could not bring herself within the deceased spouse or partner provisions of the Immigration Rules. In addition, she was not in the position of having no ties to Zimbabwe, her country of former habitual residence. The Tribunal dismissed the appeal under the Rules and on human rights grounds, but allowed it to the limited extent that the respondent’s decision to remove the appellant as an overstayer under s.10 of the Immigration and Asylum Act 1999 was unlawful: when she made her application, her visit visa had not yet expired and there was as yet no lawful decision to remove the appellant.
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The consideration of Article 8 ECHR begins at paragraph [31] of the determination. The First-tier Tribunal Judge considered that Article 8(1) was not engaged at all, for the reasons set out at paragraph [35] of the determination:
“35. It is clear from the case of Ghising, that even if there is an historic wrong that first the Appellant needs to show that Article 8(1) is engaged. In this case there is very limited evidence before me to demonstrate the nature or extent of the Appellant’s private life in the UK. She stated in oral evidence that she is living with a friend, although no further details have been provided in relation to this. She is not residing with her deceased husband’s mother or any members of his family. There is no evidence before me of any community or church ties, and the Appellant stated that...
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