Upper Tribunal (Immigration and asylum chamber), 2021-08-16, HU/18062/2019
| Jurisdiction | UK Non-devolved |
| Date | 16 August 2021 |
| Published date | 01 September 2021 |
| Hearing Date | 16 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/18062/2019 |
Appeal Number: HU/18062/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/18062/2019
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 16 July 2021 |
On 16 August 2021 |
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
SUSITA BALASUBRAMANIAM
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Deborah Revill, instructed by MTC & Co Solicitors
For the Respondent: Stephen Whitwell, Senior Presenting Officer
DECISION AND REASONS
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On 16 March 2021, I issued a decision in which I found (with the consent of the parties) that the First-tier Tribunal had erred in law in its decision to dismiss the appellant’s appeal on Article 8 ECHR grounds. I set that decision aside in part and ordered that the decision on the appeal would be remade following a further hearing. The finding made by the FtT in respect of the Immigration Rules (that the appellant could not establish that there were insurmountable obstacles to family life with her husband continuing in Sri Lanka) was preserved, also with the consent of the parties. This is my decision following the resumed hearing which took place on 16 July 2021.
Background
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I am able to take much of what follows from the concise and helpful skeleton prepared by Ms Revill of counsel, who has represented the appellant throughout the life of this appeal.
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The appellant is a Sri Lankan national who was born on 26 February 1956. She is therefore 65 years old. She has been married to Balasubramaniam Shanmugham, a Sri Lankan national with Indefinite Leave to Remain (“ILR”) in the UK, since 1977. They have four adult children, all of whom live in the United Kingdom. Three of those children are British citizens. The fourth has ILR.
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The sponsor came to the United Kingdom in 1994. It is agreed on all sides that an asylum claim was made by him at some point and that it was refused. Ms Revill and Mr Whitwell were also prepared to agree that he was granted ILR in 2010 under the Legacy Programme and not as a result of an entitlement to refugee status or another status under the Immigration Rules.
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The appellant entered the UK holding entry clearance as a spouse on 6 March 2014. She made an in-time application for further leave in that capacity on 18 October 2016. The application was refused on 28 January 2017 and the respondent certified the claim as clearly unfounded. Judicial review proceedings followed. Those proceedings were resolved by consent, with the respondent agreeing to pay the appellant’s costs.
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The application was reconsidered and refused again on 14 May 2018. The respondent considered that the sponsor was unable to meet the Financial Requirements in Appendix FM of the Immigration Rules and that there were no insurmountable obstacles to their relationship continuing in Sri Lanka.
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The appellant appealed and her appeal was heard by Judge Andrew, sitting in Birmingham on 19 November 2018. It was common ground that the appellant could not meet the Financial Requirements of the Immigration Rules. It was argued that the FtT should nevertheless take into account the support available to the appellant from her son Mohanathas, with whom she and her husband have lived for some years (and continue to do so to date). The judge rejected that argument, finding that there was no credible or sufficient evidence to establish Mohanathas’ ability to support his parents to the extent required. The judge concluded that there was nothing to prevent the appellant and the sponsor living together in Sri Lanka and there was no reason that the children could not visit them there. Considering the public interest in the maintenance of immigration control, the judge concluded that it was proportionate to remove the appellant from the United Kingdom.
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Permission to appeal to the Upper Tribunal against Judge Andrew’s decision was refused on 7 March 2019. On 23 March 2019, she made another application for leave to remain. The claim was presented in an admirably concise letter from her current solicitors. It was said that the appellant and the sponsor were financially self-sufficient in that they depended on their son Mohanathas, who had an income of approximately £45,000 per annum. The difficulties in the couple relocating to Sri Lanka were highlighted, not least their separation from their children and British grandchildren in the UK. It was submitted that the appellant’s removal would be contrary to section 55 of the Borders, Citizenship and Immigration Act 2009 and disproportionate under Article 8 ECHR.
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The application was refused by letter dated 25 October 2019. The respondent did not accept that there were insurmountable obstacles to family life between the appellant and the sponsor continuing in Sri Lanka. She did not accept that there would be very significant obstacles to the appellant reintegrating to Sri Lanka. Nor did she accept that there were exceptional circumstances which warranted a grant of leave to remain outside the Immigration Rules with reference to Article 8 ECHR.
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On appeal, First-tier Tribunal Judge Butler found that there were no insurmountable obstacles and that the appellant’s removal would not be contrary to Article 8 ECHR. Permission to appeal was sought and granted in respect of only the latter conclusion. Before me on 4 March 2021, it was agreed between the parties that the judge had erred in her conclusion that the appellant was not financially independent for the purposes of s117B(3) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The respondent felt unable to submit that this error was immaterial to the outcome of the appeal and was content for the decision to be set aside and remade on Article 8 ECHR grounds, with the judge’s finding on paragraph EX1 preserved.
The Resumed Hearing
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In preparation for the resumed hearing, the appellant’s solicitors had filed and served a consolidated bundle of 155 pages. I was also assisted by Ms Revill’s skeleton argument.
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I heard oral evidence from the appellant and her son Mohanathas. Both required the assistance of the court-appointed Tamil interpreter, whom they confirmed they could understand before giving evidence. There were no difficulties of translation noted during the hearing although Mohanathas opted to give some of his evidence in English, in which he is clearly fluent. I do not propose to rehearse the oral evidence in this decision. There is a full note of it in the Record of Proceedings and I shall refer to it insofar as it is necessary to do so to explain my findings of fact.
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Mr Whitwell relied on the respondent’s decision and the submissions he had previously made in writing in the response to the grounds of appeal under rule 24. He accepted that there was a family life in existence between the members of Mohanathas’ household and that the appellant was likely to have a private life with her other children. The question, he submitted, was whether there would be unjustifiably harsh consequences brought about by the appellant’s removal. It was well established that that was a stringent test: R (Agyarko) v SSHD [2017] UKSC 11; [2017] Imm AR 764.
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Mr Whitwell submitted that the starting point for the Tribunal’s analysis should be Judge Andrew’s decision from 2018, particularly as regards the question of third party support being provided from Mohanathas. When the third party support was considered in more detail, it was far from clear that Mohanathas had enough money to keep his found his parents to the extent which would be required by the Immigration Rules. His basic salary was in the region of £42,000 and he had his own family to support. There were significant outgoings, as was clear from his bank statements.
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It was clear from the decisions of the FtT that the sponsor had returned to Sri Lanka repeatedly, hence the concession made by Ms Revill that she was unable to criticise the conclusion reached by the FtT as regards the existence of insurmountable obstacles. It was also to be recalled that neither the appellant nor the sponsor would have any language issues there; that she had received medical treatment there; and that there were family members in Sri Lanka, including siblings in Colombo. There was also no reason to think that the appellant’s children in the UK would be unable to provide financial support. The absence of insurmountable obstacles was an important consideration in the assessment of proportionality.
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It was incorrect and unhelpfully emotive to say that the sponsor was a refugee. In any event, the appellant and the sponsor had lived apart for many years whilst...
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