Upper Tribunal (Immigration and asylum chamber), 2016-11-11, IA/39265/2014
| Jurisdiction | UK Non-devolved |
| Date | 11 November 2016 |
| Published date | 13 August 2020 |
| Hearing Date | 07 November 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/39265/2014 |
Appeal Number: IA/39265/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/39265/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision sent to parties on: |
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On 19 April 2016 and 7 November 2016 |
On 11 November 2016 |
Before
UPPER TRIBUNAL JUDGE GLEESON
Between
Ayesha [S]
[NO ANONYMITY ORDER]
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr E Nicholson, Counsel instructed by Bhogal and Partners, solicitors
For the respondent: Mr T Wilding (19 April 2016) and Ms Z Ahmed (7 November 2016), Senior Home Office Presenting Officers
DECISION AND REASONS
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The appellant appeals with permission against the decision of the First-tier Tribunal dismissing her appeal against the respondent’s decision to refuse her application for leave to remain in the United Kingdom on human rights grounds. The appellant is a citizen of Pakistan.
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The appellant entered the United Kingdom on a visit visa valid from 4 February 2009 to 4 February 2011. She has had no leave to remain since 4 February 2011.
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The appellant’s family members in the United Kingdom are as follows: her father, [SRS] (Mr [S]); her mother, [BP] (Mrs [P]); her eldest brother, [M Arifeen S] (‘Arifeen’); her second brother, [Ricky [R]] (‘Ricky’); her third brother, [M Abideen S] (‘Abideen’); and the youngest of her brothers, Mr [Wajahat S]. In addition, there are her sisters-in-law, Ewelina [S] (a Polish citizen originally), Shaista [S], and Nadia [S], and her nephews and nieces. All of her family are now British citizens, except the appellant’s mother, who has indefinite leave to remain in the United Kingdom and is awaiting naturalisation.
Background
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The appellant has an unusual personal history. She was born on 13 July 1987 and is therefore now 29 years old. Although she is a Pakistani citizen, she has never resided in Pakistan. The appellant’s mother returned to Pakistan for her birth, then took the appellant back to the United Arab Emirates when she was 1 month old. The appellant has spent a total of 180 days in Pakistan in her life, all in hotels or other rented accommodation. She speaks only basic Urdu.
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Mr [S], who is a banker, relocated to Dubai for work in 1973 and lived and worked there until 2005, when he lost his banking job. He then had 15 months left on his work permit but despite his best efforts did not find another job. The family led an itinerant life on visit visas to Pakistan, Dubai, and London, for some years, but by 2011 they had all moved to live together in the United Kingdom. Mrs [P] had a brother (now deceased) in Pakistan, but lost contact with him when she married. Mr [S] has a brother, but has not had contact with him since 2007, following a dispute when Mr [S] was unable to continue maintaining his brother because he had lost his job in Dubai.
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The appellant has four brothers, Ricky, Muhammed, Wajahat and Abideen, all of whom have children, and 3 of whom are married. All of her siblings were raised in the United Arab Emirates, but the family left the country from time to time, to renew their visas, sometimes spending time in the United Kingdom and sometimes in Pakistan, till the work visa for Mr [S] and the residence visas for the children came through.
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The appellant’s grandparents have died. Her maternal grandparents, and her paternal grandmother all died in Pakistan. The appellant’s father then brought her paternal grandfather to Dubai, where he obtained a residence visa for him and the family lived together as a unit there. The appellant’s paternal grandfather died before the family left the United Arab Emirates for the United Kingdom. In 2006, the family had to leave Dubai as their residence permits had expired. It appears that the family had hopes of staying in the United Arab Emirates, since they bought an apartment there in 2006, which they still owned in 2008. By 2007, they were all living an itinerant life on visit visas to Dubai, Pakistan and the United Kingdom, finally settling in the United Kingdom in 2011 as a family unit.
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There are 12 of the appellant’s family members living in one house in Hounslow, London: mother, father, all 4 brothers, all 3 daughters-in-law, and all of her nephews and nieces except one. One of the appellant’s brothers has a son from an estranged relationship, who lives just a few minutes away with his mother. The appellant is the only person in that household who does not have indefinite leave to remain in the United Kingdom. 10 of her family members are British citizens: the appellant’s mother, who has mobility problems, has indefinite leave to remain in the United Kingdom but has not yet been naturalised because she was unable to attend her appointment for biometric information. That is being rectified and there is no evidence to suggest that Mrs [P] will not also be naturalised British soon.
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The appellant has mental health problems (depression and agoraphobia), which were diagnosed in 2014 and she has psychotherapy for that. She did have drug treatment as well initially but now only has fortnightly psychotherapy.
The 2011 application and appeals
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On 4 February 2011, the appellant applied for indefinite leave to remain in the United Kingdom as the dependant relative of her brother Mohammed, pursuant to paragraph 317 of the Immigration Rules HC395 (as amended). Leave to remain was refused on 26 May 2011. The appellant appealed. The First-tier Tribunal Judge allowed the appeal, accepting the appellant’s evidence that the family had no real ties to Pakistan, that all members of the immediate family were in the United Kingdom, and that the appellant could not be safely returned to Pakistan as a lone female and would have no family base used by her, or her parents, to help her there.
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The Secretary of State appealed to the Upper Tribunal and Upper Tribunal Judge Kebede set aside that decision. She dismissed the appeal, taking a different view on facts and credibility from that taken by the First-tier Tribunal. At the date of hearing (2 February 2012), her parents, who had also arrived on visit visas and overstayed, still had no leave to remain. Judge Kebede considered that the parents, whose appeal had been dismissed, had no prospect of obtaining leave to remain in the United Kingdom and that therefore the appellant had not demonstrated that if returned to Pakistan she would be living alone in the most exceptional compassionate circumstances and mainly dependent on relatives settled in the United Kingdom.
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Judge Kebede considered that the evidence of the appellant and her family members was self-serving and fabricated, and that their remaining ties to Pakistan were much stronger than they admitted. In particular, she noted that the appellant had been untruthful in her account to the Entry Clearance Officer before coming to the United Kingdom and that she would be returned to Pakistan with her parents, where she would be able to establish herself without any great difficulty.
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The appellant sought permission to appeal to the Court of Appeal, which was refused, both by the Upper Tribunal and the Court of Appeal. When refusing permission to the Court of Appeal, Lord Justice Stanley Burnton said this:
“The determination of the First-tier Tribunal was manifestly unsustainable. It was inadequately reasoned and even the exiguous findings of fact did not support the conclusion that if [the appellant] returned to Pakistan, [she] would live alone in the most exceptional compassionate circumstances. The finding that she would return as a lone woman was also inconsistent with the facts as to the immigration status of her parents. ...”
Circumstances after February 2012
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On 4 December 2012, the appellant applied for an EEA residence card as the extended family member of her brother Wajahat and his wife, a Polish citizen exercising Treaty rights in the United Kingdom. Immigration officers came to the family home to interview the appellant unexpectedly at 0600 one morning, finding Wajahat and his wife not at home. That visit is said to have contributed to the appellant’s later mental health problems. The application was refused without any right of appeal.
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Two months later, the appellant applied for leave to remain on private and family life grounds pursuant to Article 8 ECHR, which the respondent refused on 25 October 2013.
The 2014 application
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On 29 April 2014, the appellant applied for indefinite leave to remain in the United Kingdom outside the Rules. It is the respondent’s refusal of that application which is the subject of the present appeal.
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The respondent considered the appellant’s claim under paragraph 276ADE(1)(vi), concluding that her application on the basis of your private life should be refused under paragraph 276CE with reference to paragraph 276ADE of the Immigration Rules. Exceptional circumstances were considered briefly, but were also rejected as a basis of stay.
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The appellant appealed to the First-tier Tribunal.
First-tier Tribunal decision
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The appeal was heard in the First-tier Tribunal by First-tier Tribunal Judge Hanes. She...
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