United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

IAC-YW-LM-V1

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: IA/20009/2014

IA/20012/2014

IA/20020/2014

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Determination Promulgated
On 20 May 2015	On 28 May 2015

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE SHAERF

 

 

Between

RICHARD EUSTACE FABLE

NALENE CHANAN FABLE

ROBERTO FABLE

(anonymity DIRECTION NOT MADE)

Appellants

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellants: Mr Md. Alabi of Cambridge Immigration Legal Centre

For the Respondent: Ms L Kenny of the Specialist Appeals Team

 

 

DECISION AND REASONS

The Appellants

1.              The Appellants are husband, wife and their child born in 2009. They are all citizens of Guyana.

2.              On 23 August 2006 the husband arrived with leave to enter as a student. Further leave in this capacity was granted and ultimately leave was granted as a Tier 1 (Post-Study Work) Migrant which expired on 17 February 2014.

3.              The husband had arrived with his wife and their first child, the third Appellant, was born in 2009. The birth was extremely premature. A subsequent child was also born extremely prematurely in September 2014 and survived less than a day.

4.              The Appellants have throughout lived with the husband’s parents. His brother and his partner and child live close by.

5.              On about 17 February 2014 the husband, together with his wife and child as his dependants, applied for further leave outside the Immigration Rules on the basis of their private and family life in the United Kingdom.

The Decision and Original Appeal

6.              On 14 April 2014 the Respondent refused the Appellants further leave to remain and proposed to remove them as a family unit by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006. The Respondent gave the reasons for the decisions in letters of 14 April 2014. The husband was refused under the Immigration Rules by reference to Appendix FM – parent route and paragraph 276ADE of the Immigration Rules and the wife was refused under the Appendix FM – partner route as well as under paragraph 276ADE of the Rules. Their child was refused under Appendix FM – Child Route and under paragraph 276ADE(1)(iii), (iv), (v) and (vi) of the Immigration Rules.

7.              At the time of the application, it was feared the child might be diagnosed as being materially on the autistic spectrum but at the hearing Mr Alabi confirmed this was not the case but there were still some concerns about his speech and language. The child had received therapy following the death of his brother but this had now come to an end.

8.              On 1 May 2014 the Appellants lodged notices of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 as amended (the 2002 Act). The grounds assert that if the Respondent had looked in the round at the Appellants’ circumstances she would have concluded they were exceptional and sufficiently compelling to justify permitting the Appellants to remain. Reference was made to the child and that the family had been living together with the husband’s parents and that the grandparents played a large role in the child’s life. Further, the Respondent was in error in concluding that the interference to the private and family life of the Appellants which would be caused by their removal to Guyana was not sufficiently serious to engage obligations under Article 8 of the European Convention.

The First-tier Tribunal’s Determination

9.              By a determination promulgated on 22 October 2014 Judge of the First-tier Tribunal Walters dismissed the appeal of each of the Appellants under the Immigration Rules and on human rights grounds outside the Rules.

10.          On 13 November 2014 Judge of the First-tier Tribunal Pirotta found the Appellants’ application for permission had been submitted out of time for which there had been no explanation and did not admit the application. She considered the grounds of appeal and found they did not disclose any arguable error of law.

11.          The Appellants renewed their application to the Upper Tribunal and on 25 March Deputy Upper Tribunal Judge Chamberlain found the original application for permission to appeal had been submitted in time and that the Judge had arguably erred in law by concluding there was no family life because of a lack of financial dependence of the Appellants on other members of the family and had not considered the relationship between the child and his grandparents. The other ground for appeal was that the Judge had failed to give adequate consideration to the best interests of the child in the light of his medical condition and the opinion of his headteacher.

The Upper Tribunal Hearing

12.          All three Appellants attended with the husband’s parents and the husband’s brother. I explained the purpose of the hearing and the procedure to be followed.

13.          For the Appellants, Mr Alabi submitted the Judge had erred in failing to deal with the relationship between the child Appellant and the grandparents. He explained that the medical diagnosis of the child Appellant had turned out not to be as grave as anticipated at the date of the First-tier Tribunal hearing but there was some continuing concern about his speech development.

14.          In reply Ms Kenny for the Secretary of State referred to the response under Procedure Rule 24 which asserted the Judge had appropriately directed himself and made a comprehensive assessment of the claim under Article 8 and that if there had been a failure to address specifically the relationship between the child and his grandparents it was not material to the outcome.

15.          She continued that on the evidence the Judge had found the relationship between the Appellants and other members of their family did not disclose anything beyond the normal emotional ties which one would expect. To found a claim under Article 8, the Appellants would have to show more since the Appellants by themselves formed a nuclear family and would be returned as a family unit to Guyana. At paragraph 47 of his decision the Judge had made reasoned findings that there was family life between the Appellants and the husband’s parents. At paragraph 48 he had noted that there was no suggestion of any financial dependence of the Appellants on them. In the round, there was enough in the decision to show that the Judge had given sufficient consideration to all the relevant family relationships enjoyed by each of the Appellants.

16.          The Judge had extensively dealt with the medical issues affecting the child Appellant and the availability of facilities in Guyana. His assessment of the best interests of the child Appellant was adequate. The husband’s immigration status had throughout been on a temporary basis without any legitimate expectation of being permitted to remain in the United Kingdom. The Judge had conducted a fair balancing exercise and the decision contained no material error of law.

17.          Mr Alabi reminded me that the husband’s last grant of leave had been as a Tier 1 (Post-Study Work) Migrant. In November 2014, after the hearing in the First-tier Tribunal, the wife’s mother in Guyana had passed away. He re-iterated that the Judge had not considered the relationship of the child Appellant with his grandparents and that he had been born very prematurely and now had an entrenched relationship with his grandparents. The husband and wife were employed and were self-sufficient so that the public interest would not be affected if they remained in the United Kingdom and that in any event they had not been in breach of immigration control.

Findings and Consideration

18.          At the end of the hearing I announced my decision that the First-tier Tribunal determination did not contain a material error of law such that it should be set aside. I referred to the passages in the Judge’s decision in which he had taken adequate account of the relationship of the grandparents with the Appellants and in particular the child Appellant. These are to be found at paragraphs 12, 14, 17, 33 and 46-48.

19.          I found the evidence of the relationship between the grandparents and the child Appellant was described in two comparatively short statements submitted by each of the grandparents and their limited oral testimony before the Judge. The Judge had taken this evidence into account in his decision. On the Appellants’ own admission and fortunately the medical diagnosis of the child Appellant was now considerably better than had been feared at the time of the First-tier Tribunal hearing.

20.          The Judge adequately dealt with the relevant aspects of the appeal in his decision. The Appellants had never had any legitimate expectation of being permitted to settle in the United Kingdom and have no right under the European Convention to choose where to establish their private and family lives. There was no material error of law in his treatment of the claim under Article 8 whether under the Immigration Rules or outside them.

Anonymity

21.          There was no request for an anonymity direction and none had been made by the First-tier Tribunal Judge. Having considered the appeal I find that no anonymity direction is warranted.

NOTICE OF DECISION

The decision of the First-tier Tribunal did not contain a material error of law such that it should be set aside. Therefore it shall stand.

 

 

 

Signed/Official Crest Date 28. v. 2015

 

Designated Judge Shaerf

A Deputy Judge of the Upper Tribunal