Upper Tribunal (Immigration and asylum chamber), 2021-10-13, HU/18172/2019
| Jurisdiction | UK Non-devolved |
| Date | 13 October 2021 |
| Published date | 28 October 2021 |
| Hearing Date | 26 August 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/18172/2019 |
Appeal Number: HU/18172/2019
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Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: HU/18172/2019
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THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 26 August 2021 |
On 13 October 2021 |
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
jocilea Do Rosario Henry
(ANONYMITY DIRECTION not made)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Ngwuocha of Carl Martin Solicitors
For the Respondent: Ms Cunha, Senior Presenting Officer
DECISION AND REASONS
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On 16 March 2021, I issued my first decision in this appeal. I concluded that the FtT had erred in law in its decision to dismiss the appeal and I set that decision aside. I ordered that the decision on the appeal would be remade in the Upper Tribunal but that the finding that the appellant could not meet the Immigration Rules (and paragraph EX1 of Appendix FM in particular) should be preserved. It was in those circumstances that the matter returned before me on 26 August 2021.
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I need not repeat the appellant’s immigration history, the content of her human rights claim or the basis upon which the respondent and the FtT found against her. Those elements of the background to this appeal are set out at [2]-[14] of my first decision, a copy of which is appended. It suffices for present purposes to recall that the appellant is married to a British citizen, Mr Henry, and that it has been accepted throughout by Mr Ngwuocha that there are no insurmountable obstacles to the couple relocating to Brazil, although he does submit that this course, or the separation of the appellant from the sponsor, would give rise to unjustifiably harsh consequences.
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No further evidence was filed or served in advance of the day of the hearing. At the outset of the hearing, Mr Ngwuocha sought to hand up additional evidence in the form of a second witness statement from the sponsor, more recent payslips and a letter dated 24 August 2021 from the South London and Maudsley NHS Foundation Trust. I confirmed with the advocates that we all had the documents which had been before the FtT, comprising a 25 page bundle, two further letters from the Maudsley and the certificate of marriage dates 23 May 2019.
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I heard oral evidence from the sponsor in English. He adopted his witness statements and confirmed that he was the owner of his home, subject to a mortgage. He remained employed by Mason Pearson with a salary of over £21,000 per annum. He had been born in Lewisham and had lived in the UK his whole life. His only language was English. He had been married to his first wife for 20 years and she had died of a stroke. He could not leave the UK for Brazil. He was 65 years old. He did not speak the language. The country was in the midst of a Covid-19 crisis and was on the ‘Red List’. He had been working for Mason Pearson for 20 years and had a mortgage to pay. It would be a big disappointment for him if his wife had to return to Brazil.
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In answer to questions from Ms Cunha, the sponsor confirmed that he had been married for 2 years. He had a private pension with Scottish Widows but he wanted to keep working. He was able to retire but that was not his wish. He had 2 years left to pay on his mortgage. He was not sure he could trust a tenant and he was reluctant to rent the property, although he had a lodger living with him. He paid no health insurance and had not paid for the appellant’s NHS treatment. Nor had she. He could not travel to Brazil due to the pandemic; they would have to isolate. He had brothers and sisters in the UK but he did not see them and they had their own lives. He had not met his wife’s family, although he had spoken to them on the telephone. He had not been to Brazil. The last time he had travelled was to Israel with his late wife.
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I asked the sponsor some questions by way of clarification. He said that he would receive a private pension of around £4000 but he did not know whether this was a lump sum or an annual amount; he had not studied the correspondence because he wanted to work on to 75. He did not know where the appellant’s family lives in Brazil. Her father is 94. She has 3 brothers and 1 sister. They lived in different places but her father lives with her sister. He thought that they all lived in towns and cities. His flat is a 2 bedroom flat in Southwark which they shared with the lodger. He did not know what it was worth but it was ‘a lot’. It was shared ownership with the Peabody Trust but he did not know what proportion he owned.
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There was no re-examination and no questions arising from my own.
Submissions
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Ms Cunha relied on the letter of refusal and noted that the findings under the Immigration Rules had been preserved. There were therefore no insurmountable obstacles to family life continuing in Brazil. It remained necessary to consider whether it would be unjustifiably harsh for the sponsor to follow the appellant there. In the respondent’s submission, it was not. It was accepted that the sponsor did not speak the language but Brazil was part of the G20 and English was widely spoken there. He was able to retire. He had assets and he could sell or rent his property in London. He had the right to remain in the UK as a British citizen but he did not have family in the UK with whom he would lose contact. There would not be very significant obstacles to the appellant’s re-integration to Brazil. Adopting the objective approach to the question of relocation, as required by Cathrine Lal v SSHD [2019] EWCA Civ 1925; [2020] 1 WLR 858, it was not unreasonable to expect the sponsor to move to Brazil with the appellant.
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Nor, in Ms Cunha’s submission, was it unreasonable for the sponsor and the appellant to be separated pursuant to the need to maintain a fair system of immigration control. That might be difficult for them but it would not be unjustifiably harsh as she had family in Brazil who could assist her in finding work or in pursuing an application for entry clearance as a spouse. Whatever the current relevance of Chikwamba v SSHD [2008] UKHL 40; [2008] 1 WLR 1420, it could not avail this appellant. The appellant’s immigration history was poor and it could not properly be said that she would certainly be granted entry clearance. In response to my request for greater particularity in that submission, Ms Cunha accepted that the Financial Requirements in Appendix FM of the Immigration Rules would be met, and that there was a genuine and subsisting relationship between the appellant and the sponsor. She submitted that the general grounds of refusal in Part 9 of the Immigration Rules might apply in a future entry clearance application, however, in light of the appellant’s poor immigration history.
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It was relevant that the appellant was present in the UK unlawfully when the relationship began, Ms Cunha submitted. Section 117B of the Nationality, Immigration and Asylum Act 2002 militated against the appellant in various respects. Section 117B(1) was particularly relevant due to the appellant’s immigration history. Section 117B(2) militated against her as there was no adequate evidence to show that she spoke English. It was accepted that she was financially independent and that s117B(3) was a neutral consideration. Section 117B(5) did not apply as the appellant did not rely on a private life. Section 117B(4) did apply, however, as the family life had been entered into when the appellant was present in the UK unlawfully. In addition to these considerations, there was the burden which the appellant posed to the NHS: Akhalu (health claim: ECHR Article 8) [2013] UKUT 400 (IAC). In all the circumstances, the decision to refuse the appellant’s human rights claim was a proportionate one.
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Mr Ngwuocha submitted that the appellant had not disregarded immigration control; she had made applications and had engaged with the Home Office. Any gaps in that engagement was attributable to the appellant’s mental health problems. The respondent had continued to overlook what in Mr Ngwuocha’s submission was the decisive consideration: the fact that an entry clearance application was bound to succeed. The real question was therefore whether the appellant should be required to make that application. The sponsor had said that he would lose his house and his job if he relocated to Brazil and he had no ties to that country. There were other important aspects of the case, including the fact that an entry clearance application might not succeed and might actually take years to progress. There had been credible and consistent evidence given by the sponsor and there...
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