Upper Tribunal (Immigration and asylum chamber), 2019-08-13, HU/24812/2016

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/24812/2016

THE IMMIGRATION ACTS

Heard at Birmingham	Decision & Reasons Promulgated
On 31 July 2019	On 13 August 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

Y J

(ANONYMITY DIRECTION MADE)

Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Appellant in person

For the Respondent: Ms H Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS

1. To preserve the anonymity direction deemed necessary but the First-tier Tribunal, I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellant.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge O’Brien promulgated on 18 January 2019, which dismissed the Appellant’s appeal on article 8 ECHR grounds.

Background

3. The Appellant was born on 26 December 1975 and is a national of Zimbabwe. On 5 October 2015 the respondent refused the appellant’s for leave to remain in the UK.

The Judge’s Decision

4. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge O’Brien (“the Judge”) dismissed the appeal on article 8 ECHR grounds. Grounds of appeal were lodged and on 21 March 2019 Upper Tribunal Judge Davey granted permission to appeal stating inter alia

Grounds 1 and 3

The Judge gave adequate and sufficient reasons why there was no current family life rights being exercised [D52-54} and why the respondent’s decision was an interference in the appellant’s “…substantial private life in the UK” and Article 8 ECHR was engaged [D55].

The fact that the appellant had sole responsibility for Sherwin Spain (date of birth 30 July 1997)(AB297), now an adult, was not the current issue, but whether family life rights were being exercised.

Sherwin, although 21 and no longer a child, has a statement of SEN until May 2015, lives at home, functions of the level of a child or very young teenager according to an ISW report dated 1 December 2018, it is arguable that the Judge’s finding on the exercise of family life rights was flawed.

Given the history of this matter, if an error of law is established it plainly would be desirable for this matter to be dealt with in the Upper Tribunal,

Ground 2 and the fear of violence are not errors of law by the Judge.

The Hearing

5. (a) The appellant was present but was not represented. I discussed her application for permission to appeal and the grant of permission to appeal with her. The appellant told me that the Judge had failed to properly consider article 8 family life. She told me that the Judge gave inadequate reasons for dismissing the independent social work report. The appellant told me that if the Judge had paid full attention to the independent social work report he would have come to the conclusion that article 8 family life exists because of her son’s continuing dependency upon the appellant. She told me that the Judge’s findings between 49 and 54 flawed

(b) The appellant told me that the Judge’s proportionality assessment was inadequate and that although the Judge gives consideration to article 8 private life, the Judge does not adequately explain his conclusion that the appellant’s established article 8 private life is outweighed by the public interest in immigration control.

(c) The appellant told me that she feels that she has been unfairly treated by the respondent and spoke about the history of applications, blaming the respondent for delay in consider the case.

6. For the respondent, Ms Aboni told me that the decision does not contain errors of law. She told me that the Judge’s proportionality assessment is properly carried out. She told me that the Judge concluded that article 8 family life is not established and gives adequate reasons for doing so. Mrs Aboni told me that the Judge took account of the appellant’s sons needs at secondary school, but said that those needs were in the past. She told me that the Judge gives adequate reasons for finding that the appellant’s son is now an independent adult. Mrs Aboni urged me to dismiss the appeal and allow the decision to stand.

Analysis

7. The appellant entered the UK as a visitor on 16 January 2002. The appellant was then granted leave to remain as a student, which expired on 24 July 2009. The appellant’s son entered the UK as a visitor on 29 October 2002 when he was five years old. He was granted leave to remain as the appellant’s dependent. On 30 May 2014 the appellant applied for leave to remain on article 8 grounds. That application was refused & the appellant did not have the right to appeal the decision.

8. In the meantime, the appellant’s son submitted his own application for leave to remain. The appellant’s son was granted leave to remain until January 2019. He now has an outstanding application for further leave to remain. The appellant submitted an application for leave to remain on article 8 grounds on 30 November 2015. That application lead to the refusal decision dated 5 October 2016 which remains the subject of this appeal.

9. This case turns largely on the relationship between the appellant and her son Sherwin. Sherwin was born in 1997 and is now 22 years old. He experienced difficulties as a child and was identified as a child with special educational needs between August 2009 and April 2015.

10. More than four years have passed since the appellant’s son had special educational needs. The adaptations provided to assist him in secondary school bore fruit, because he completed his A levels and has been offered a place to study an undergraduate degree. He has not taken a place at University because, at the moment, he cannot secure funding. Instead, he now has full-time work and enjoys the company of his girlfriend.

11. An independent social work report dated 1 December 2018 was placed before the First-tier Tribunal. The Judge considered that the report between [48] and [53] before reaching his conclusion that family life within the meaning of article 8 does not exist between the appellant and her son.

12. In Kugathas v SSHD (2003) INLR 170 the Court of Appeal said that, in order to establish family life, it is necessary to show that there is a real committed or effective support or relationship between the family members and the normal emotional ties between a mother and an adult son would not, without more, be enough. In PT (Sri Lanka) v Entry Clearance Officer, Chennai [2016] EWCA Civ 612 it was held that some tribunals appeared to have read Kugathas v SSHD (2003) INLR 170 as establishing a rebuttable presumption against any relationship between an adult child and his parents or siblings being sufficient to engage Article 8. That was not correct. Kugathas required a fact-sensitive approach, and should be understood in the light of the subsequent case law summarised in Ghising (family life – adults – Gurkha policy) [2012] UKUT 160 (IAC) and Singh [2015] EWCA Civ 630. There is no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8 nor is there any requirement of exceptionality. It all depends on the facts. The love and affection between an adult and his parents or siblings do not of itself justify a finding of a family life. There has to be something more. A young adult living with his parents or siblings would normally have a family life to be respected under Article 8. A child enjoying a family life with his parents does not suddenly cease to have a family life at midnight as he turned 18 years of age. On the other hand, a young adult living independently of his parents might well not have a family life for the purposes of Article 8.

13. The Judge gives clear and sustainable reasons for finding that he cannot rely on the independent social work report. The author of the report was not available to give evidence; the appellant’s son was. The Judge explains at [51] that having seen and heard the appellant’s son give evidence he could not liken him to the young man described in the independent social work report. The Judge explains that the special needs identified for the appellant’s son are an historical matter. There is a difference between the appellant’s sons needs between 2009 - 2015 and his needs at the date of the Judge’s decision.

14. Between [48] and [54] the Judge sets out adequate reasons for finding that the appellant does not establish family life within the meaning of article 8 of the 1950 convention. The Judge does not simply look at the appellant’s son’s age. The Judge considers all of the evidence and evaluates the evidence to determine the nature of the relationship between the appellant and...