Upper Tribunal (Immigration and asylum chamber), 2016-10-20, AA/02354/2015
| Jurisdiction | UK Non-devolved |
| Date | 20 October 2016 |
| Published date | 01 April 2020 |
| Hearing Date | 22 December 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/02354/2015 |
Appeal Number: AA/02354/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02354/2015
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 22nd December 2015 |
On 20 October 2016 |
Before
DEPUTY UPPER TRIBUNAL JUDGE O’RYAN
Between
G Y
(ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Jones of Counsel instructed by Malik & Malik Solicitors
For the Respondent: Mr Tarlow, Senior Home Office Presenting Officer
DECISION AND REASONS
1 This is an appeal against the decision of the First‑tier Tribunal dated 12 June 2015 (Judge of the First‑tier Tribunal Morgan) dismissing the Appellant’s appeal against the Respondent’s decision of 27 January 2015 to remove him administratively under s.10 Immigration and Asylum Act 1999. The Appellant is a national of Kosovo, and first entered the United Kingdom in 1999, claiming asylum 1 November 1999. The details of that claim are not before me, but related to the then ongoing conflict in Kosovo. The appeal was dismissed in October 2001. Thereafter, the Appellant evaded immigration control, remaining in the United Kingdom unlawfully. There is a suggestion in the Respondent’s decision that the Appellant made contact with the Respondent in 2010, but as far as I am able to determine, no application for leave to remain was made by the Appellant until 2012, after the Appellant had become aware he was HIV positive and had fallen ill with cancer.
2 That application was refused in February 2014 with no right of appeal. Further representations of November 2014 were treated as a fresh asylum and human rights claim, resulting in the present decision of 27 January 2015. The Appellant had claimed that he was at real risk of serious harm in Kosovo as a result of his homosexuality, and also argued that his removal to Kosovo would be in breach of Article 3 ECHR on the grounds that he would not be able to obtain in Kosovo the level of medical care that he is receiving in the United Kingdom, and that his removal would bring about a significant deterioration in his health.
3 When the appeal came before the First tier Tribunal on 11 June 2015, those acting for the Appellant indicated that the Appellant was no longer pursuing the appeal on asylum or Article 3 ECHR grounds, but only on Article 8 ECHR, on the grounds that his removal would amount to a disproportionate interference with the Appellant’s private and family life that he enjoyed in the UK.
4 At paragraph 12 onwards in the decision, the judge set out the Appellant’s evidence as to his private life in the United Kingdom. At paragraph 15 it was recorded that the Appellant had been in a same‑sex relationship with his British partner since 2011; the couple did not live together but they had plans to live together in the future; the Appellant however had been distancing himself from his partner because he does not know how to tell his partner about his HIV status and his immigration history; the partner did not know about or attend the appeal hearing; the Appellant had lost some friends since they became aware of his HIV status and he feared the stigma that accompanied this; he feared that if he were to tell his partner that this might end the relationship. At paragraph 16 the judge recorded the Appellant’s evidence that he feared having to hide his sexuality if returned to Kosovo due to discrimination in that country. At paragraph 17 the judge recorded the submissions behalf of the Appellant that the various factors affecting the Appellant cumulatively would amount to a breach of his and his partner’s rights under Article 8 ECHR.
5 At paragraph 17 the judge expressed considerable sympathy for the Appellant, having left Kosovo at a time of significant upheaval. The Appellant had in the last few years been diagnosed with HIV and cancer which now appeared to be in remission. The judge held at paragraph 17 that even considering those factors cumulatively they did not enable a finding that the Appellant’s return to Kosovo would be disproportionate; it was harsh in all the circumstances but did not amount to a disproportionate breach of either the Appellant’s or his partner’s private or family life. At paragraph 18 the judge considered the application of part 5A of the Nationality, Immigration and Asylum Act 2002, (although referring to this as Part 5A of section 19 of the Immigration Act 2014). The judge stated as follows:
“I have given considerable weight to the public interest question. Section 19 does not assist the Appellant in demonstrating that his removal would be disproportionate. On the contrary it necessitates a finding that his removal is in the public interest. I find that the weight to be given to the requirements of immigration control outweighs the interference with the Appellant’s private and family life. The Appellant is an unlawful entrant to the United Kingdom who has submitted an unsuccessful asylum application and subsequently absconded and remained in United Kingdom, worked unlawfully and sought access to the NHS. In summary, on the particular facts, I am unable to find that it is disproportionate to expect the Appellant to return to Kosovo.”
6 At paragraph 19, the judge expressed remarks which are not determinative of the appeal, but invited the Respondent to consider a pragmatic grant of discretionary leave or temporary admission to the Appellant. I find that this paragraph does not form any relevant part of the reasoning of the judge.
7 An application for permission to appeal was made to the First‑tier Tribunal but permission was refused on 23 July 2015. The application was renewed on the same grounds which in summary argued that the judge’s finding that ‘Part 5A necessitates a finding that his removal is in the public interest’ was demonstrably wrong; if that were the case then no Appellant could succeed unless satisfying all parts of s.117B. In granting permission to appeal on 21 September 2015, Upper Tribunal Judge Coker expressed the view that it was arguable that the First tier Tribunal judge incorrectly interpreted s.117 A to D, and failed to take proper account of the relevant immigration rules, in stating that the public interest required the Appellant’s removal. It was arguable that the public interest was one of the factors to be considered in assessing whether removal is disproportionate rather, than imposing a requirement.
8 Before me Ms Jones appeared on behalf the Appellant. I turned first however to Mr Tarlow appearing for the Respondent and invited his views as to whether or not the First‑tier judge had erred in law. He relied upon the Rule 24 notice dated 12 October 2015 which argued that the judge had correctly directed himself in law, and had at paragraph 18 made a decision on the basis of proportionality, in balancing the weight to be given to immigration control as against the interference with the Appellant’s private and family life. It was submitted that the grounds were no more than a disagreement with the findings of the First‑tier Tribunal. Mr Tarlow added to that what the judge had done was to merely give considerable weight to the public interest question. I did not need to hear from Ms Jones on the error of law issue.
Discussion
9 Part 5A of the nationality, immigration and Asylum act 2002 provides as follows, in so far as is relevant:
“117A Application of this Part
(1) This Part applies where a court or Tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or Tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well‑being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well‑being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life...
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