Upper Tribunal (Immigration and asylum chamber), 2016-11-04, IA/49837/2014
| Jurisdiction | UK Non-devolved |
| Date | 04 November 2016 |
| Published date | 17 July 2020 |
| Hearing Date | 10 October 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/49837/2014 |
Appeal Number: IA/49837/2014
IAC-FH-AR-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/49837/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 10 October 2016 |
On 4 November 2016 |
Before
UPPER TRIBUNAL JUDGE blum
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
LAILA, D/O ABDUL SATAR
(anonymity direction NOT MADE)
Respondent
Representation:
For the Appellant: Mr Duffy, Senior Home Office Presenting Officer
For the Respondent: Mr J Butterworth, Counsel, instructed by Times PBS
DECISION AND REASONS
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The Secretary of State for the Home Department (SSHD) appeals against the decision of Judge of the First-tier Tribunal Boyes promulgated on 14 March 2016 in which she allowed, on human rights grounds, the appeal of Laila, daughter of Abdul Satar (the Claimant), against the SSHD’s decision of 18 December 2014 to refuse her Indefinite Leave to Remain (ILR) as a domestic worker and to remove her from the UK in accordance with s.47 of the Immigration, Asylum and Nationality Act 2006.
Background
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The Claimant is a national of Afghanistan, date of birth 01 July 1978. She entered the UK on 19 February 2007 pursuant to a grant of entry clearance as a domestic worker. She was subsequently granted further periods of leave to remain in the same category, the last of which was granted on 09 May 2013 and which was valid until 3 June 2014. On 19 May 2014 she made an application for ILR as a domestic worker in a private household. This application was refused on the basis that the Claimant had not passed the requisite Life in the UK test.
The decision of the First-tier Tribunal
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At her appeal before the FTT, heard on 9 December 2015, it was accepted on behalf of the Claimant that she had not passed the Life in the UK test and therefore could not meet the requirements for a grant of ILR. It was additionally accepted by Mr Lee, Counsel for the Claimant, that, on the face of the evidence, she did not meet the national minimum wage requirements in respect of the terms and conditions of her employment as a domestic worker.
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In her conclusions the judge found that the Claimant, because she had not passed the Life in the UK test, could not meet the requirements of paragraph 159G(v) of the immigration rules.
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At [22] the judge stated:
Whilst the [Claimant] does not specifically assert that a further grant of leave should be considered, in the alternative, under paragraph 159EA, I have gone on to consider whether she meets the substantive requirements to be granted further leave to remain under this paragraph.
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The judge noted that paragraph 159EA(iii) (requirements for an extension of stay as a domestic worker in a private household for applicants who entered the United Kingdom under the rules in place before 6 April 2012) required that an applicant:
… continues to be required for employment for the period of the extension sought as a full-time domestic worker in a private household under the same roof as the employer or in the same household that the employer has lived in and where evidence of this in the form of written terms and conditions of employment in the UK as set out in Appendix 7 and evidence that the employer resides in the UK;
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Appendix 7 provides a template for written terms and conditions and includes the following declaration:
Note: by signing this document, the employer is declaring that the employee will be paid in accordance with the National Minimum Wage Act 1998 and any regulations made under it for the duration of the employment.
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The judge referred to the Claimant’s written terms and conditions of employment and two letters that had been provided from the Claimant’s employer. These stated that the Claimant worked six hours a day, 36 hours a week, and was paid £6.50 per hour, so that her gross weekly wage was £234. The judge noted however that from the weekly wage, a deduction of £150 was made to cover the costs of accommodation, utilities, and water and laundry and clothing. The remaining £84 was sent to the Claimant’s parents. The judge then noted that the maximum weekly deduction for accommodation permitted under the national minimum wage provisions was, at the relevant time, £35.56. As other deductions for benefits in kind could not count towards the national minimum wage the Claimant was effectively being paid significantly less than the national minimum wage. At [28] the judge concluded that none of the documents provided by the Claimant relating to the terms and conditions of her employment contained the required declaration. The judge was consequently satisfied that the Claimant could not meet the requirements of paragraph 159 EA(iii) of the immigration rules.
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The judge then proceeded to consider the appeal on human rights grounds. At [40] the judge concluded that the Claimant did not meet the requirements of paragraph 276ADE as she had only lived in the UK for just under nine years and there were no significant obstacles to her reintegration in Afghanistan. The judge noted that the Claimant’s parents lived in Afghanistan, and that, as a 41-year-old single woman, she may find it difficult to find employment or to marry if removed. The judge concluded however that this was not sufficient on its own to constitute insurmountable obstacles for the purposes of the immigration rules. Although there was no consideration by the judge of Appendix FM it was never contended by the Claimant that she could meet any of the requirements of this provision.
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The judge then considered the Claimant’s freestanding Article 8 claim with reference to the guidance identified in Razgar [2004] UKHL 27. The judge noted that, when she entered the United Kingdom in 2007, the Claimant was in a category that was capable of leading to settlement. The judge noted that the Claimant had worked and lived in the UK for a period of almost 9 years at the date of the hearing. She had, throughout that time, been employed by the same family. The judge found that the Claimant had undoubtedly formed social ties in the UK during this period of residence and concluded that the Claimant enjoyed a private life in the UK capable of being interfered with by the SSHD’s decision.
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Having found that the interference would have consequences of such gravity so as to engage the operation of Article 8, and that the interference was in accordance with the law and the legitimate aim of securing the economic well-being of the UK, the judge went on to consider the issue of proportionality. In so doing the judge made reference to the public interest factors that need to be considered pursuant to sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002. The judge was satisfied that the Claimant understood English as a result of the SSHD’s acceptance of her English language qualification. The judge was also satisfied that the Claimant could demonstrate that she was financially independent and that she had never been in receipt of public funds. At [39] the judge stated:
She has been in the UK lawfully throughout the time that she has been in the UK and there is no suggestion that she has in any way breached immigration laws. I do not consider that her private life was established when her immigration status was precarious.
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At [42] of her decision the judge records that she was informed that the Claimant’s terms and conditions of employment have been broadly similar throughout the time that she has been working for her employer. The judge indicated that she had no reason to doubt, on the evidence before her, that the terms had remained broadly similar as claimed, but as the judge had not been provided with the previous terms and conditions of employment she was unable to make a finding of fact in this respect.
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At [43] the judge noted that the SSHD had appeared satisfied that the requirements of the amended rules were met when the Claimant was last granted leave to remain on 9 May 2013. The judge was satisfied, on the information before her, that the Claimant had never received any prior indication that there were any potential issues with the terms and conditions of her employment prior to the appeal hearing.
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At [44] & [45] the judge stated:
I have considered whether, in all the circumstances, it is justified in the public interest, in particular the maintenance of effective immigration control, and proportionate, to remove the [Claimant] rather than instead granting her a short period of leave to provide her, and her employers, with the opportunity to demonstrate that she meets the requirements to be granted further leave to remain.
The [Claimant] has been lawfully resident and lawfully in employment in the UK for almost 9 years. She is not presently in receipt of public funds. It appears that she has been granted a previous period of leave without any issues having been raised regarding the terms and conditions of her employment. It also appears that the respondent has never previously applied her mind to this issue, which raises the question of fairness.
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The judge concluded, having...
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