Upper Tribunal (Immigration and asylum chamber), 2017-03-27, AA/00463/2016
| Jurisdiction | UK Non-devolved |
| Date | 27 March 2017 |
| Published date | 18 March 2022 |
| Hearing Date | 21 February 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/00463/2016 |
Appeal Number: AA/00463/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00463/2016
THE IMMIGRATION ACTS
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Heard in Birmingham |
Decision & Reasons Promulgated |
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On 21 February 2017 |
On 27 March 2017 |
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Before
UPPER TRIBUNAL JUDGE SMITH
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
G D
Respondent
Representation:
For the Appellant: Mrs Aboni, Senior Home Office Presenting Officer
For the Respondent: Ms S Alban, Legal Representative, Sultan Lloyd solicitors
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues and the Respondent was at that time a minor child. Although the Respondent is no longer a child, since the case involved protection issues, it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his 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
Background
1. This is an appeal by the Secretary of State. For ease of reference, I refer below to the parties as they were in the First-Tier Tribunal albeit that the Secretary of State is technically the Appellant in this particular appeal. The Secretary of State appeals against the decision of First-tier Tribunal Judge Juss promulgated on 11 November 2016 (“the Decision”) allowing the Appellant’s appeal against the Respondent’s decision dated 9 March 2016 refusing his protection and human rights claims.
2. The Appellant is a national of Albania. He was born on 13 January 1999. He arrived in the UK on 13 October 2014 and claimed asylum on 28 October 2014. He was interviewed in the normal manner (taking no account of his age) on 15 April 2015. The Respondent’s decision dated 9 March 2016 granted the Appellant discretionary leave until 13 July 2016 on the basis that he is an unaccompanied minor but otherwise refused his claims.
3. The Appellant’s protection claim is based on the violence he suffered at the hands of his father. He also claims to have experienced problems from people from whom his father borrowed money. I do not need to dwell on the protection claim beyond those brief details because the Appellant’s appeal against the protection claim was dismissed by the Decision and the Appellant has not challenged that outcome.
4. The Judge allowed the Appellant’s appeal on human rights grounds finding that removal would be disproportionate in terms of the Appellant’s private and family life established in the UK and the situation which would face him on return to Albania.
5. The Respondent challenges the Decision on the basis that the Judge failed to take into account section 117B Nationality, Immigration and Asylum Act 2002 (“section 117B”). Permission was granted by Designated First-tier Tribunal Judge Shaerf in the following terms:-
“…the Judge’s treatment of the relevant matters in Part VA is jejeune and fails to comply with the guidance given in Dube (ss117A-117D) [2015] UKUT 0090 (IAC). This is particularly important in light of the judgment in MM (Uganda) v SSHD [2015] EWCA Civ 450. This is an arguable error of law and permission to appeal is granted.”
6. The appeal comes before me to decide whether the Decision contains an error of law material to the outcome and if so to either re-make the decision or remit the appeal to the First-tier Tribunal for redetermination.
Submissions
7. Mrs Aboni relied on the Respondent’s grounds. She summarised those as the Judge having failed to have regard to section 117B and having given undue weight to the Appellant’s best interests. She pointed out in this case that section 117B is relevant not only in terms of immigration control but also because the Appellant is being maintained at public expense. She submitted that although the Appellant says that he is looked after by his foster mother, that care is funded by the local authority.
8. I asked Mrs Aboni about the relevance of the Appellant’s circumstances in Albania. She pointed out that the Judge’s finding at [28] of the Decision that the Appellant would be returning to a hostile environment is contradicted by [21] of the Decision where the Judge finds that the Appellant can return to his family. Mrs Aboni pointed out, in any event, that the Appellant is now an adult and not a dependent child. She also submitted that the Judge failed to take into account the Appellant’s precarious status and to accord appropriate weight to his private life against that background.
9. I also sought Mrs Aboni’s submissions in relation to [35] of the Decision which makes reference to section 117B. She submitted that the Judge has provided inadequate reasons for his finding that the public interest is outweighed by the Appellant’s right to respect for his private life.
10. In response, Ms Alban submitted that the Judge had properly assessed proportionality at [35], taking into account also section 117B. It was clear from what is said at [35] that the Judge found the public interest to be outweighed by what he found to be in the Appellant’s best interests namely to remain in the UK with his foster family. When I asked her to set out what factors led the Judge to find that the Appellant’s right to respect for his private life outweighs the public interest, she noted the Appellant’s age, vulnerability and immaturity.
11. I explored with Ms Alban the question of the relative weight to be given to the Appellant’s private life bearing in mind his precarious status. Ms Alban sought to persuade me that, because the Appellant had discretionary leave which he was entitled to apply to extend, that was not precarious status. I was unpersuaded by that submission. The Appellant was clearly granted discretionary leave because of his age. He could of course apply to extend that leave but that does not mean that his status was not uncertain. Indeed, his immigration status was certain in that he had been granted discretionary leave but that was expressly limited to the period until he became an adult. He could not have expected that it would be automatically extended, particularly having regard to the reason why it was granted and that he is no longer a child.
12. Ms Alban also relied on the case of Deelah and others (section 117B – ambit) [2015] UKUT 00515 (IAC) in support of the proposition that “little weight” does not mean that no weight should be attributed. Although she did not take me to the relevant part of the headnote which supports that proposition and that point does not appear there to be made, I have no difficulty in accepting the proposition as correct. However, the issue in this case is whether the Judge did in fact attribute only little weight. Ms Alban was constrained to accept that it was not clear whether and to what extent the Judge took that approach as the Judge’s findings at [35] were unreasoned.
13. In relation to the Appellant’s recourse to public funds, Ms Alban pointed out that the Appellant is not in receipt of public funds whether directly or indirectly. Now that the Appellant is an adult, his foster parents are paying for his upkeep from their own funds.
14. I asked Ms Alban to make submissions about what should happen if I found a material error of law. The Appellant seeks to adduce further evidence, particularly from Social Services, in support of his case. She began by suggesting that this would be a matter for the First-tier Tribunal. However, as I noted, this is not a case where credibility is at issue (at least not in relation to human rights). I therefore indicated that I was not minded to remit the appeal and intended, if possible, to re-make the decision based on oral submissions at the hearing before me. This was as anticipated by the directions sent to the parties. In particular, [4] of the directions provides that there is a presumption that the re-making of the decision will be made at the same hearing if the First-tier Tribunal’s decision is to be set aside and that this will normally be done based on the evidence before the First-tier Tribunal Judge and any further evidence admitted under rule 15(2A) as well as the parties’ arguments. I therefore sought Ms Alban’s submissions on the evidence before me including the new material.
15. Ms Alban indicated that she may wish to call further oral evidence. I did not have before me any further witness statement from the Appellant himself and his evidence in relation to his human rights claim was accepted. I summarised what I understood to be the Judge’s findings as to the Appellant’s private and family life. Those are that he is well-settled with his foster family who are currently financially and emotionally responsible for his care and needs, that he has no contact with his family in Albania, that he is developing well, particularly in educational terms and that he is contributing to his community in the UK, particularly through his attendance at a gym where he assists others. The Appellant is clearly integrating well into society. I indicated...
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