Upper Tribunal (Immigration and asylum chamber), 2016-12-08, IA/39030/2014
| Jurisdiction | UK Non-devolved |
| Date | 08 December 2016 |
| Published date | 03 February 2021 |
| Hearing Date | 06 December 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/39030/2014 |
Appeal Number: IA/39030/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/39030/2014
THE IMMIGRATION ACTS
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Heard at Glasgow |
Determination issued |
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On 6 December 2016 |
On 8 December 2016 |
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Before
UPPER TRIBUNAL JUDGE MACLEMAN
& UPPER TRIBUNAL JUDGE DOYLE
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
STEVEN RICHARD FORMAN
Respondent
For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer
For the Respondent: Mr K McGuire, Advocate, instructed by Latta & Co, Solicitors
DETERMINATION AND REASONS
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The parties are as described above. However, as we are now remaking the determination of the FtT, which has been set aside, and as this was the terminology conveniently adopted by both representatives in written and oral submissions, the rest of this determination refers to parties as they were in the FtT.
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The appellant is a citizen of the USA, born on 4 August 1946.
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On 25 September 2014 the respondent made a decision which sets out paragraph 276ADE of the immigration rules and explains as follows:
On 22 July 2014 you applied for leave to remain in the UK …
… your application has been refused.
The family life you claim to have with your godchildren does not constitute “family life” as set out in appendix FM of the immigration rules. The claim has therefore been assessed solely on the basis of your private life …
Decision under private life
… You are a national of the USA and you entered the UK on 13 September 2007. You have therefore lived in UK for 6 years and not … for at least 20 years … and fail to meet the requirements of paragraph 276ADE (1) (iii) …
In order to meet the requirements of paragraph 276 ADE (1) (vi) an applicant must show that they are aged 18 and above and that there would be very significant obstacles to their integration into the country to which they would have to go … It is not accepted that there would be very significant obstacles to your integration in the USA … because you state in your application that you have family, social and financial ties in your home country …
Decision on exceptional circumstances
It has been considered whether your application raises any exceptional circumstances which, consistent with the right to respect for private and family life contained in article 8 of the ECHR, might warrant consideration … of a grant of leave to remain in the UK outside the requirements of the rules. It has been decided that it does not.
… you have raised the fact that you are unable to switch to the tier 2 (skilled migrant) point based system route because you are unable to meet the “appropriate salary” requirements … This is not a reason … sufficiently compelling or compassionate enough to reach the high threshold required for a grant of leave outside the rules.
You have provided evidence … of your various accolades as a professional musician and academic achievements as a PhD student of the Royal Conservatoire of Scotland. You submitted a sizeable number of supporting letters from various academics and music professionals … While it is acknowledged that you currently enjoy living, working and studying in the UK as a highly skilled migrant, this is not give you the right to do so on an exceptional basis. It is clear that you have substantial personal and professional ties in the USA and own property and assets there.
The Secretary of State is satisfied that you have provided … no compelling or compassionate reasons why you should be granted leave to remain outside the rules and is therefore not prepared exercise her discretion in your favour …
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On 1 October 2014 the appellant gave notice of appeal to the FtT, on these grounds:
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The grounds are general and unenlightening. The appellant has since abandoned (i) and (ii), and now advances his case on the basis of (iii) only.
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Designated FtT Judge MacDonald allowed the appellant’s appeal by decision promulgated on 5 January 2015.
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The SSHD appealed to the Upper Tribunal. In a decision promulgated on 19 June 2015 (which should be read as if incorporated herein) the UT (the President, the Hon Mr Justice McCloskey, and UT Judge Macleman) found material errors of law in the determination of the FtT, and set it aside. Parties were directed to make submissions in writing on whether the decision should be remade within the UT; on the necessity for a further hearing; and on whether there would be any application for further evidence to be adduced under rule 15 (2A).
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In a response dated and received on 3 July 2015 the appellant said that the decision should be remade in the UT, by way of a de novo assessment, for which purpose there should be a further hearing, and that the appellant did not wish the UT to consider any evidence that was not before the FtT and hence made no application under rule 15 (2A).
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In a response also dated 3 July 2015, but having had sight of the appellant’s submissions of that date, the SSHD agreed that it would be appropriate for a further hearing to take place before the UT, for oral submissions to be made. The SSHD also did not wish the UT to consider any evidence that was not before the FtT.
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The UT issued a direction dated 31 August 2015 for the redetermination of the appeal to be undertaken in the UT “on the first available date … before an appropriately constituted panel”.
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There was there after an unfortunate delay, due to administrative oversight, until the case was listed to come before us on 6 December 2016.
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The parties provided and exchanged further written submissions on the remaking of the decisions, which, as expanded upon orally at the hearing, are summarised below.
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We do not set out the principal private life provisions of the rules, paragraph 276ADE, because the appellant now accepts that he cannot meet those requirements, and the distance by which he fell short is shown in the respondent’s decision which we have quoted; but that is a significant part of the backdrop.
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Part 5 A of the 2002 Act, introduced by section 19 of the Immigration Act 2014 and in force since 25 July 2014, establishes a regime under the heading “Article 8 of the ECHR: Public Interest Considerations”. Section 117A provides:
(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).
Section 117B, embraced by the cross heading “Article 8: Public Interest Considerations Applicable in All Cases”, provides:
(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 established by a person at a time when the person's immigration status is precarious.
…
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Section 117B (6), relating to cases of parental relationship, and section 117C, relating to cases involving foreign criminals, do not apply.
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The submissions of Mr Maguire derive also from the Human Rights Act 1998. By virtue of section 1 and Schedule 1, one of the Convention rights protected under domestic law is article 8. By section 6 (1):
It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
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Both parties have approached this case throughout on the basis that in terms of section 117B (5) the appellant’s private life in the UK was established at a time when his immigration status, although lawful, was precarious. That...
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