Upper Tribunal (Immigration and asylum chamber), 2021-05-24, HU/17519/2019
| Jurisdiction | UK Non-devolved |
| Date | 24 May 2021 |
| Published date | 08 June 2021 |
| Hearing Date | 27 April 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/17519/2019 |
Appeal Number: HU/17519/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/17519/2019
THE IMMIGRATION ACTS
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Heard at Birmingham |
Decision & Reasons Promulgated |
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On 27th April 2021 |
On 24th May 2021 |
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Before
UPPER TRIBUNAL JUDGE MANDALIA
Between
RAVNEET [K]
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr S Abbas, Imperium Group Immigration Specialists
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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The appellant is a national of India. She appealed the respondent’s decision of 11th October 2019 to refuse her application for leave to remain in the UK on human rights grounds. Her appeal to the First-tier Tribunal (“FtT”) was dismissed by First-tier Tribunal Judge Rowlands for reasons set out in a decision promulgated on 27th February 2020.
Background
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The appellant arrived in the United Kingdom on 15th May 2007, aged 13, with entry clearance as a visitor valid until 27th of September 2007. As a child she had no control over matters, but the family remained in the United Kingdom unlawfully after the appellant’s entry clearance expired. Her immigration history is referred to in the respondent’s decision, but that is at odds with the appellant’s account of her immigration as set out in paragraph [2] of the decision of Judge Rowlands. At paragraph [13], Judge Rowlands accepted that the immigration history referred to by the appellant is correct. It is uncontroversial that an application for leave to remain made by the appellant was refused by the respondent on 18th December 2017. Her appeal against that decision was dismissed by First-tier Tribunal Judge Richards-Clarke for reasons set out in a decision promulgated on 20th June 2018. Although the appellant was granted permission to appeal to the Upper Tribunal, following a hearing on 12th September 2018, Deputy Upper Tribunal Judge Murray dismissed the appeal for reasons set out in a decision promulgated on 9th October 2018.
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On 1st March 2019, the appellant made a further application for leave to remain on human rights grounds, and in particular, on the basis of the appellant’s family life with her child who I shall refer to in this decision as [JK]. That application was refused by the respondent for reasons set out in a decision dated 11th October 2019. The appellant’s appeal against that decision was dismissed by First-tier Tribunal Judge Rowlands for reasons set out in his decision promulgated on 27th February 2020.
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Permission to appeal to the Upper Tribunal was granted by First-tier Tribunal Judge Nightingale on 18th May 2020 on limited grounds. In granting permission, she said:
“…it is arguable that the Judge fell into error in referring repeatedly to “insurmountable obstacles” rather than “very significant obstacles” to reintegration in accordance with paragraph 276ADE(1)(vi). This is particularly arguable in light of the judge’s reference to “insurmountable obstacles to their removal” at paragraph 19. This ground is arguable. It is also arguable that the judge did not consider the nationality of the appellant’s child, and in particular, the separation of the child from her father.”
The appeal before me
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At the hearing before me, Mr Abbas accepts the grant of permission to appeal is limited. He submits there are three strands to the grounds upon which permission has been granted. I refer to the parties submissions upon the three criticisms made by the appellant, before drawing the threads together.
Paragraph 276ADE(1)(vi) of the Immigration Rules
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First, the appellant relies upon the erroneous reference by Judge Rowlands at paragraph [16] of his decision to paragraph 276ADE(1)(vi) requiring the appellant to show “.. that there are insurmountable obstacles to her integration in India..”. The reference to “insurmountable obstacles” as the test, is repeated at paragraphs [17] , [18] and [19] of the decision in which the judge considered whether the requirements of the immigration rules are met. At paragraph [19], Judge Rowlands refers to the best interests of the child and in the end, concludes that he is not satisfied that there are “... insurmountable obstacles to the appellant’s removal to India.”.
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Mr Abbas submits the focus of the Judge was upon whether there are insurmountable obstacles to the appellant’s integration in India and whether there are insurmountable obstacles to the appellant’s removal to India, whereas paragraph 276ADE(1)(vi) required the appellant to establish that there would be very significant obstacles to her integration into India. He submits the erroneous reference to ‘insurmountable obstacles’ is such that the decision is infected by a material error of law. Mr Abbas refers to the decision of the Upper Tribunal in Treebhawan and Others (NIAA 2002 Part 5 - compelling circumstances [2017] UKUT 13 in which a Presidential panel of the Upper Tribunal considered what is meant by "very significant obstacles". It said, at [37]:
"The other limb of the test, 'very significant obstacles', erects a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context."
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Mr Abbas submits that at paragraph [18] of the decision, Judge Rowlands refers to the objective material that establishes that single women are marginalised and face social stigma. He submits that is sufficient to establish that there are very significant obstacles to the appellant’s integration into India.
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At the outset, Mr Bates candidly and quite properly accepts that in referring to “insurmountable obstacles” to integration in India, Judge Rowlands failed to refer to the correct wording of the test as set out in paragraph 276ADE(1)(vi), but he submits, any error is immaterial. He submits Judge Rowlands correctly noted, at [13], that the previous decision of Judge Richards-Clarke promulgated on 1st June 2018 forms the starting point for his consideration of the Article 8 claim. Judge Richards-Clarke was not satisfied that there would be very significant obstacles to the appellant’s integration into India. That is the test set out in paragraph 276ADE(1)(vi). Mr Bates submits the appellant’s first ground is ‘form over substance’ and on any view, whether considered as “insurmountable obstacles to integration” or “very significant obstacles to integration”, the appellant was unable to establish on the evidence that there would be obstacles to her integration into India.
The nationality of the child
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The appellant claims Judge Rowlands proceeds upon the premise that the child [JK] is an Indian citizen. At paragraph [19], he refers to [JK] as an ‘Indian citizen’, whereas she was born in the UK and her birth has not been registered with the Indian authorities and she has not been registered as an Indian national.
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Mr Abbas submits that the Judge’s consideration of the best interests of the child should have followed a proper consideration of the circumstances that the appellant herself would face. The background material establishes that as a single woman she would be marginalised and face social stigma. That will inevitably impact upon her daughter.
The child’s contact with her father
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The appellant claims that in considering the best interests of the child at paragraph [19], Judge Rowlands failed to consider the impact that removal of the child from the UK with the appellant, will have upon the child’s relationship with her father.
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As to the nationality of [JK] and her contact with her father, Mr Bates submits the appellant’s case before the Tribunal was set out in the appellant’s skeleton argument. The skeleton argument refers to a number of authorities and said, at paragraph [18]:
“It is submitted that it is in the best interests of the child the appellant should remain in the UK. The country information clearly shows that the appellant will face discrimination, and this will inevitably affect the child.”
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The appellant did not claim before the First-tier Tribunal that the child would not be entitled to Indian citizenship or would face difficulty in entering India. Neither did the appellant claim that the child’s removal to India would have an impact upon her relationship with her father. The focus was upon the difficulties the appellant would face, and the impact of that upon her daughter.
Discussion
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I am grateful to Mr Abbas and Mr Bates for their helpful and concise submissions directed to the particular criticisms made of the decision of First-tier Tribunal Judge Rowlands. Having heard the submissions and having carefully read the decision of Judge Rowlands I conclude that the decision of Judge Rowlands is not vitiated by a material error of law.
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True it is that in considering whether the appellant meets the requirements for leave to remain on the grounds of private life as set out in paragraph...
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