Upper Tribunal (Immigration and asylum chamber), 2023-05-19, IA/13694/2021
| Appeal Number | IA/13694/2021 |
| Hearing Date | 13 April 2023 |
| Date | 19 May 2023 |
| Published date | 06 June 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-003322
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IN THE UPPER TRIBUNAL |
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IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-003322 First-tier Tribunal: HU/55478/2021 IA/13694/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 19 May 2023
Before
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
RASHMI RAJESH KANDALKAR
(NO ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms S Ferguson, Counsel, instructed by Barclay Solicitors
For the Respondent: Mr A Basra, Senior Presenting Officer
Heard at Field House on 13 April 2023
DECISION AND REASONS
Introduction
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The appellant appeals with permission against a decision of Judge of the First-tier Tribunal Grey (‘the Judge’) dismissing her human rights (article 8 ECHR) appeal. The Judge’s decision was sent to the parties on 30 May 2022.
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Before the First-tier Tribunal, the appellant unsuccessfully pursued an article 3 ECHR appeal. It has not been renewed before this Tribunal.
Relevant Facts
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The appellant is a national of India and is presently aged 54.
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She entered the United Kingdom on 1 October 2006 with entry clearance as a student and enjoyed leave to enter until 31 October 2008.
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An in-time application for leave to remain on the International Graduate Scheme was made by the appellant, consequent to which her leave was varied by the respondent to expire on 4 July 2009.
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The appellant made an in-time application for leave to remain as a Post-Study Worker, which was refused by the respondent on 16 July 2009. She appealed and her appeal was allowed by a decision of Immigration Judge Bryant dated 28 October 2009. The respondent subsequently granted her leave to remain from 12 February 2010 to 12 February 2011.
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On 10 May 2011 the appellant was served with an IS151A as an overstayer. She exercised a right of appeal and Immigration Judge Harris concluded by a decision dated 29 June 2011 that the respondent had failed to undertake appropriate consideration of paragraph 395C of the Immigration Rules before issuing her decision under section 10 of the Immigration and Asylum Act 1999. Consequently, the appeal was allowed to the limited extent that there was no lawful decision concerned with the appellant’s human rights application.
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The appellant made further human rights submissions to the respondent, which were refused by a decision dated 20 October 2011. Judge of the First-tier Tribunal Doran dismissed her appeal by a decision dated 12 December 2011. Judge Doran determined that though the appellant had established a private life in this country, the decision to remove her was a proportionate exercise of immigration control.
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The appellant applied for leave to remain as a Tier 2 (General) Migrant on 4 April 2012. The respondent granted her leave to remain in this category from 8 August 2012 to 6 April 2015. The respondent curtailed the appellant’s leave on 22 July 2013, so that existing leave to remain expired on 21 September 2013. The appellant enjoyed no right of appeal against this decision.
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On 19 September 2013, the appellant applied for leave to remain outside of the Immigration Rules on compassionate grounds. This application was withdrawn on 29 January 2014.
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In the meantime, the appellant applied for leave to remain as a Tier 1 (Entrepreneur) on 20 November 2013. The respondent refused this application by a decision dated 20 November 2013. The appellant’s appeal was dismissed by Judge of the First-tier Tribunal Harries, but subsequently allowed on appeal by Deputy Upper Tribunal Judge Robertson on 21 November 2014, who found that the respondent had not considered documentary evidence provided to her by the appellant before the decision was issued in November 2013. The appeal was allowed to the limited extent that the respondent’s November 2013 decision was not in accordance with the law and the application remained outstanding.
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The respondent maintained her decision on 31 December 2014. The appellant’s appeal was allowed by Judge of the First-tier Tribunal Price on 4 August 2015. Judge Price concluded that the respondent had failed to consider the exercise of her discretion under paragraph 245AA(d) of the Immigration Rules and so the decision was not in accordance with the law.
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The respondent maintained her decision on 2 June 2016. The appellant appealed to the First-tier Tribunal, but subsequently withdrew her appeal on 28 June 2017.
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In the meantime, the appellant applied for indefinite leave to remain on 5 October 2016. The respondent refused the application by means of a decision dated 13 February 2018, with an attendant out of country right of appeal. The appellant unsuccessfully challenged this decision by judicial review proceedings before the Upper Tribunal. The Court of Appeal refused permission to appeal by a decision dated 5 February 2019.
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On 17 February 2019 the appellant applied for indefinite leave to remain on long residence grounds. The respondent refused the application with no attendant right of appeal by a decision dated 8 August 2019. The appellant’s application for judicial review was refused by the Upper Tribunal at an oral renewal hearing held on 25 February 2020.
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On 6 November 2020, the appellant applied for leave to remain on human rights (article 8) grounds. The respondent refused the application by a decision dated 7 September 2021 and these proceedings arise from that decision.
First-Tier Tribunal Decision
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The hearing of the appellant’s appeal was conducted remotely before the Judge sitting at Hatton Cross on 18 May 2022. The appellant was represented by counsel, not Ms Ferguson who appeared on her behalf before this Tribunal.
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The appellant attended with seven witnesses. The respondent’s Presenting Officer confirmed that only the appellant was to be cross-examined.
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The Judge found that the appellant did not satisfy the requirements of paragraph 276ADE(1)(vi) of the Rules as she had not shown that there would be very significant obstacles to her integration in India. No complaint is made by the appellant before this Tribunal as to the Judge’s decision in respect of article 8 under the Rules.
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The Judge proceeded to consider article 8 outside of the Rules:
‘50. The Appellant has a complex immigration history. At times she has had lawful, but limited leave to remain. At other times she has had no leave to remain and has resided in the UK unlawfully. I take account of the fact that her period of unlawful stay in 2011 may have been as a result of a fraud and that the Appellant believed she had leave to remain at that time. Nonetheless, at all times the Appellant’s immigration status has been precarious. Applying Rhuppiah v SSHD [2018] UKSC 58, a person has precarious immigration status if he or she has leave to remain in the UK which is other than indefinite. This is the case here. In accordance with section 117B(5) of the 2002 Act, I must therefore give limited weight to the private life of the Appellant.
51. On the Appellant’s account, she is not financially independent, and she presumably has enjoyed the benefit of free NHS treatment during times when she has not had a lawful basis of stay. This weighs against the Appellant in accordance with s.117B(3), although I find that there is no reason to believe the Appellant could not become financially independent were she given the opportunity to remain in the UK, in which event I find she would be able to find work to support herself and would not be a burden on the taxpayers.
…
56. As will be apparent from the detailed immigration history set out at [2] above, the Appellant has always been proactive in attempting to regularise her immigration status. At no time does she appear to have attempted to ‘pass under the radar’ in respect of the immigration authorities. This is undoubtedly to the Appellant’s credit, although I do not consider this sufficient in itself or combined with other matters weighing in her favour to outweigh the public interest considerations.
57. Whilst there are undoubtedly some factors that weigh in the Appellant’s favour, I am not persuaded that the Appellant’s case is sufficiently exceptional to outweigh the public interest in this case.’
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The Judge concluded:
‘58. Having carefully evaluated - and considered together and cumulatively - the considerations weighing in the Appellant's favour, I have reached the view that they are insufficient to outweigh the public interest in the maintenance of effective immigration controls. I do not consider the Appellant will face considerable challenges in returning to India. I am therefore satisfied that the Appellant's removal would be proportionate under Article 8 ECHR and would not be unlawful under Section 6 of the Human Rights Act 1998.’
Grounds of Appeal
The appellant’s grounds of appeal are not properly delineated into separate particularised complaints identifying legal error as required: Nixon (permission to appeal: grounds) [2014] UKUT 368 and Harverye v Secretary of State for the Home Department [2018] EWCA Civ 2848, at [55] – [58] (obi...
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