Upper Tribunal (Immigration and asylum chamber), 2021-03-26, HU/25144/2016

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/25144/2016 (V)

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 13 January 2021	On 26 March 2021

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

VP

(ANONYMITY DIRECTION MADE)

Respondent

Representation:

For the Appellant: Mr E Nicholson, Counsel, instructed by JJ Law Chambers

For the Respondent: Mrs H Aboni, Home Office Presenting Officer

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS

1. The Appellant is a citizen of India. Her date of birth is 24 June 1987.

2. In October 2008 the Appellant came to the UK as a student. She was granted periods of leave until 23 November 2011. She left the United Kingdom in December 2011. She was granted leave to enter the UK from 21 November 2012 to 30 March 2014 as the partner of a Tier 1 (General) Migrant, her husband, RG.

3. The Appellant made an application for leave to remain on private and family life grounds on 29 March 2014. This application was refused on 7 May 2015. The decision of 7 May 2015 was certified as clearly unfounded under Section 94 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The Appellant made further submissions under paragraph 353 of the Immigration Rules. However, these were refused by the Secretary of State on 4 November 2016. The Appellant was removed from the UK on 4 November 2016.She appealed against the decision dated 7 May 2015. On 15 August 2017, First-tier Tribunal Judge Lebasci allowed the Appellant’s appeal under Article 8 ECHR. The First-tier Tribunal found that the decision to refuse the Appellant leave was a disproportionate interference with her family life she shares with her husband, RG.

4. On 19 September 2014, RG was sentenced to fifteen months’ imprisonment following a conviction for an offence of dishonesty involving money laundering. His appeal against deportation on Article 8 ECHR grounds, was dismissed by First-tier Tribunal Judge Burnett on 8 October 2018. His application for permission to appeal was refused by Upper Tribunal Judge Hanson on 31 January 2019. However, he remains in the United Kingdom. He made an application to the High Court for permission to judicially review Judge Hanson’s decision on 17 April 2019.¹ On 17 June 2019 the Court of Appeal stayed RG’s application for permission pending the Supreme Court’s decision in AM (Zimbabwe) v SSHD 2020 UKSC 17. He was granted a stay on removal by the UT on 27 August 2019. On 18 November 2020 the Court of Appeal refused the application. The decision of the Court of Appeal reads as follows:-

RG then made an application to the Secretary of State for leave claiming that his“The applicant seeks permission to appeal against the decision of Sir Wyn Williams sitting as a High Court Judge dated 17 April 2019 refusing permission to judicially review the decision of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Hanson) dated 30 January 2019 refusing permission to appeal against the determination of the First-tier Tribunal (Immigration and Asylum Chamber) (First-tier Tribunal Judge Burnett) promulgated on 8 October 2018 refusing his appeal against the decision of the Secretary of State dated 23 August 2017 to refuse his application for leave to remain on human rights grounds.

Before Judge Burnett, the applicant only pursued a human rights appeal under Article 8 of the European Convention on Human Rights. He only appealed to the Upper Tribunal on Article 8 grounds. However, the judicial review was based on the proposition that the removal of the applicant would breach his Article 3 rights because of his medical conditions, as set out in Paposhvili v Belgium [2016] ECHR 1113 and subsequently confirmed by the Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department[2020] UKSC 17.

I understand that this appeal was stayed pending the ultimate outcome of AM (Zimbabwe): but this is an appeal against the refusal of permission to proceed with the judicial review of the refusal of permission to appeal against Judge Burnett’s determination. As Sir Wyn Williams said when refusing permission to proceed, there can be no doubt that Judge Hanson was correct to refuse permission to appeal. In those circumstances, Sir Wyn Williams was unquestionably right to refuse permission to proceed. The refusal of the appeal by Judge Burnett on Article 8 grounds is now uncontroversial; and that was the only ground upon which the appeal was pursued before him.

Permission to appeal is therefore refused.

Of course, that is not necessarily the end of matters; because, if the applicant considers he now has an Article 3 claim, he may apply for leave to remain on that basis. The Secretary of State would have to consider such an application on the evidence relied upon and the law as it now stands.”

5. Following this decision, RG made a claim that his removal would breach the United Kingdom’s obligations under Article 3. He is in poor health. He has tuberculosis, depression, microcytic anaemia, degenerative disc disease, undifferentiated inflammatory polyarthritis and ankylosing spondylitis.

6. The Secretary of State was granted permission to appeal against the decision of Judge Lebasci allowing the Appellant’s appeal. The decision was set aside by Upper Tribunal Judge Finch following a hearing on 19 April 2018. Judge Finch’s decision (the” Error of Law” decision) reads as follows:

“9. The Home Office Presenting Officer did not seek to rely on evidence which related to the ability of the Respondent’s husband to resume a family or private life in India. The issue between the parties was whether the findings made by First-tier Tribunal Judge Lebasci in relation to the Appellant’s right to leave to remain was sustainable.

10. It was accepted by the Respondent’s Counsel that the Respondent was not entitled to leave to remain under the Immigration Rules. Therefore, the appeal was restricted to the question of whether the First-tier Tribunal Judge was correct to find that refusal to grant her leave to remain amounted to a breach of Article 8 outside the Immigration Rules.

11. It was accepted that the Respondent was in a genuine and existing relationship with her husband and that, as he was still living in the United Kingdom, pending a decision on his own legal challenges, a breach of their right to enjoy a family life for the purposes of Article 8(1) of the European Convention on Human Rights was made out. But, as the First-tier Tribunal Judge correctly noted in paragraph 25 of the decision, the crucial issue was that of proportionality.

12. In that same paragraph the First-tier Tribunal purports to go through the factors contained in Section 117B of the Nationality, Immigration and Asylum Act 2002. It is said that ‘a fair balance must be struck between the public interest and the right and interests of the Appellant and her husband’. However, Section 117B(1) of the Nationality, Immigration and Asylum Act 2002, states, in particular, that ‘the maintenance of effective immigration controls is in the public interest’ but nowhere in the decision does the First-tier Tribunal Judge place any weight on the fact that the Appellant herself had no leave to remain when her application was refused and that at the time, her husband had no leave to remain and was subject to a deportation order. It appears to be (sic) that this is a Robinson obvious point to which I have to have regard.

13. In ground 2 of her grounds of appeal the Appellant submitted that ‘in allowing the Appellant’s appeal under Article 8 the FtT has misdirected herself in law as to the appropriate weight to be attached to the Appellant’s relationship’. In paragraph 26 of the decision, the First-tier Tribunal Judge found that

‘the effect of being apart is very difficult for both the Appellant’ and her husband and that ‘a significant additional feature is the complexity of [RG’s] health and [that] he finds it difficult to manage without the Appellant. He describes having missed important medical appointments due to not having the assistance he needs’.

14. This put the Appellant’s case at its highest [and the passage of time since 4 November 2016 rather puts in question her husband’s inability to manage without her and missing medical appointments due to not having...