Upper Tribunal (Immigration and asylum chamber), 2023-05-09, LH/00066/2022
| Appeal Number | LH/00066/2022 |
| Hearing Date | 13 March 2023 |
| Date | 09 May 2023 |
| Published date | 31 May 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-003798
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-003798 First-tier Tribunal No: HU/54691/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 9 May 2023
Before
UPPER TRIBUNAL JUDGE HANSON
Between
KIMBERLEY ANN LOUISE CARD
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Helen Foot, instructed by Goldsmith Bowers, Solicitors. For the Respondent: Mr Diwnycz, a Senior Home Office Presenting Officer.
Heard at Phoenix House (Bradford) on 13 March 2023
DECISION AND REASONS
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The appellant, a citizen of the United States of America (USA) born on 5 August 1988, appeals with permission a decision of First-tier Tribunal Judge Mensah (‘the Judge’) promulgated following a hearing at Bradford on 17 June 2022, in which the Judge dismissed the appellant’s appeal against the refusal of her application for leave to enter and settle in the UK under the Immigration Rules (‘the Rules’) and/or on human rights grounds.
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There is a tragic element to the factual matrix applicable to this appeal which was not disputed by the Judge.
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The appellant met a UK citizen, Christopher Gregory (‘Christopher’) in 2009 whilst he was in the USA. The couple came to the UK together in 2011 and visited Christopher’s family nearly every year thereafter staying for approximately three weeks at a time. Christopher’s mother, Denise Frost, is the in-law referred to by the appellant in her evidence who lives in the UK with her partner, Grant, and a son John.
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On 16 February 2013 the appellant gave birth to a son Jack at the Hull Royal Infirmary in the UK. It was said that during that visit the appellant and Christopher decided they wished to remain in the UK and made an application for leave to remain, although that application was rejected on the basis the appellant, as a non-UK national, needed to make the application from outside the UK rather than in-country. The appellant and Christopher returned to the USA but continued to visit. On 10 December 2015 the appellant gave birth to a daughter, Juliet, in Oregon (USA). The appellant in her evidence stated that the couple planned to marry and to live in the UK.
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The tragic event occurred on 20 November 2019 when Christopher, despite being an innocent bystander, was shot and later died of his wounds. The appellant’s evidence was that a murder investigation undertaken by the police in the USA remains ongoing.
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On 21 December 2020 the appellant made an application for entry clearance to the UK under Appendix FM, in order to relocate to the UK to live with Denise Frost and her husband who live in Yorkshire, both so they could emotionally support each other more directly and because it was said to be in the best interests of the children who would benefit from a role model in the form of Denise’s partner Grant, and John. That application was refused on 14 July 2021 against which the appellant appealed. It is that appeal which came before the Judge.
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The application under Appendix FM was made on the basis of family life between the appellant and her son Jack.
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It was accepted by the Secretary of State that the application for entry clearance under Appendix FM did not fall for refusal on grounds of suitability under section S-EC of Appendix FM but it was not accepted that the appellant met all the eligibility requirements of section E-ECPT. The decision-maker noted that in order to meet E-ECPT.2.2 the child of an applicant must be (a) under the age of 18 years at the date of application, (b) living in the UK, and, (c) a British citizen, settled in the UK, or in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3(d). As the appellant lived in the USA with Jack the decision-maker was not satisfied Jack was living in the UK, leading to the refusal by reference to EC-PT.1.1(d) of Appendix FM.
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The decision-maker also found the appellant did not meet the eligibility financial requirements of paragraph E-ECPT.3.1 to 3.2 as the appellant claimed she receives $5000 per month from a family trust but did not provide evidence of that, as required. Although the decision-maker notes a degree of evidential flexibility it was not felt that it was appropriate to exercise that on this occasion as the application was being refused for other reasons which would not be resolved through the use of evidential flexibility. The decision-maker found that the appellant had chosen to provide no personal documentation or evidence of how she will be able to adequately maintain herself and her child without recourse to public funds, leading to refusal pursuant to paragraph EC-PT.1.1(d) of Appendix FM too.
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There was no issue with the appellant’s English language ability, a requirement which was clearly met.
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In relation to exceptional circumstances, the decision-maker wrote:
We have considered, under paragraphs GEN.3.1. and GEN.3.2. of Appendix FM as applicable, whether there are exceptional circumstances in your case which could or would render refusal a breach of Article 8 of the ECHR because it could or would result in unjustifiably harsh consequences for you or your family. In so doing we have taken into account, under paragraph GEN.3.3. of Appendix FM, the best interests of any relevant child as a primary consideration. I have considered your rights under Article 8 of ECHR. Article 8 of the ECHR is a qualified right, proportionate with the need to maintain an effective immigration and border control and decisions under the Immigration Rules are deemed to be compliant with human rights legislation.
I have taken into consideration the fact that your child’s father was deceased in November 2019 and that you currently reside with your child in the United States of America. Therefore I am satisfied that the decision to refuse your application causes no interference with your family life than has existed since 2019. I am satisfied the decision is proportionate under Article 8(2). I am therefore satisfied the decision is justified by the need to maintain an effective immigration and border control.
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Having considered the documentary and oral evidence the Judge sets out her findings of fact from [9] of the decision under challenge. The Judge took as a starting point the eligibility and financial requirements of Appendix FM noting at [10] that it was accepted in the appellant’s skeleton argument that the appellant could not meet the eligibility requirements under section E-ECPT of Appendix FM because they are designed to accommodate a situation where a parent is separated from their child or children and wishes to join them in the United Kingdom. In this appeal the children have always lived in the USA with the appellant and no separation issues arose.
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The Judge records the submission being made by the appellant’s representative that the appellant could have sought to circumvent the refusal by intentionally sending her children to the UK before applying to join them, and that she should be given credit for not doing so but, as the Judge noted, it would not be in the best interests of the children to be artificially separated from their mother, and was an event that had not occurred in any event.
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The Judge addresses the appellant’s financial circumstances from [11]. The Judge had the benefit of considering additional material and concludes that the appellant had shown that her available funds are more than sufficient to meet the financial threshold of Appendix FM.
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The Judge then went on to consider Article 8 ECHR outside the Immigration Rules.
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The Judge does not doubt that the death of Christopher has brought the family closer together as they share the grief of losing a loved one, that they speak on a regular basis, that Mrs Frost feels very strongly for her grandchildren and their loss, that Mrs Frost explained that the children are her flesh and blood and how she would wish to be there for them more often, which would be possible if the children were in the United Kingdom [14].
The Judge records Mrs Frost’s claim to have a deep emotional dependency and that she and the appellant rely on each others support and contact to manage the grieving process, and the appellant’s evidence of having a strong relationship with her mother-in-law who she describes as being a mother figure. The evidence was that they go through the grieving process together. The appellant claims that there...
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