Upper Tribunal (Immigration and asylum chamber), 2019-04-12, HU/05693/2018

JurisdictionUK Non-devolved
Date12 April 2019
Published date05 June 2019
Hearing Date05 April 2019
CourtUpper Tribunal (Immigration and Asylum Chamber)
StatusUnreported
Appeal NumberHU/05693/2018

Appeal Number: HU/05693/2018


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/05693/2018


THE IMMIGRATION ACTS


Heard at Field House

Decision & Reasons Promulgated

On 5 April 2019

On 12 April 2019




Before


DEPUTY UPPER TRIBUNAL JUDGE DOYLE


Between


ANUM UL KHAIR

(ANONYMITY DIRECTION NOT MADE)

Appellant

and


ENTRY CLEARANCE OFFICER - Sheffield

Respondent


Representation:


For the Appellant: Ms P Solanki (counsel) instructed by Kingwright Solicitors

For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS


1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.


2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Row promulgated on 9 November 2018, which dismissed the Appellant’s appeal on all grounds.


Background


3. The Appellant was born on 9 February 1996 and is a national of Pakistan. On 23 October 2017 the Appellant applied for entry clearance to join her father, who has been granted refugee status, in the UK. On 22 January 2018 the Secretary of State refused the Appellant’s application.


The Judge’s Decision


4. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Row (“the Judge”) dismissed the appeal against the Respondent’s decision.


5. Grounds of appeal were lodged and on 2 January 2019 Judge Neville granted permission to appeal stating inter alia


2. The second ground asserts that the Judge erred at para 16 in treating a “special degree of dependency” as a necessary component of family life capable of being afforded protection under article 8. The appellant is arguably correct that this runs contrary to Ghising v SSHD [2012] UKUT 160, as discussed in PT (Sri lanka) [2016] EWCA Civ 612 at 23-25. This is arguably material, as being inseverable from the other reasons given by the Judge at para 15.


3. The other grounds are makeweights, but given their interrelationship they may all be argued.


The Hearing


6. (a) For the appellant, Ms Solanki moved the grounds of appeal. She adopted the terms of her skeleton argument and told me that the Judge applied the wrong test when considering whether or not article 8 family life exists between parents and a 22-year-old daughter (who had always lived with her parents). Ms Solanki reminded me that the sponsor was granted refugee status in August 2017. In October 2017 this appellant and her mother apply for entry clearance to be reunited with the appellant’s father (the sponsor). The appellant’s mother’s application was successful. The appellant’s application was refused by the respondent’s decision dated 22 January 2018.


(b) Ms Solanki told me that the only part of paragraph 352D of the rules the appellant cannot meet is 352D(ii), which says


352D. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who currently has refugee status are that the applicant:

(i) is the child of a parent who currently has refugee status granted under the Immigration Rules in the United Kingdom; and

(ii) is under the age of 18; and….

Because the appellant was 21 years old at the date of decision the case can only succeed on article 8 outside the rules.

(c) Ms Solanki took me to [16] the decision. In the first sentence of [16] the Judge searches for

some special degree of dependency

in doing so (counsel for the appellant told me) the Judge applies the wrong test.

(d) Ms Solanki told me that, to reach his decision, the Judge must have ignored the fact that the appellant’s mother entered the UK and then returned to Pakistan to be with the appellant throughout May and June 2018. She told me that the Judge’s finding in the final sentence of 15 ignores evidence of the appellant’s mother’s reluctance to leave the appellant alone in Pakistan. Ms Solanki told me that the Judge did not take account of cultural and traditional standards in Pakistan and did not acknowledge that the appellant is an unmarried young lady who has only ever lived with her parents, and who cannot be regarded as independent in Pakistani society. She told me that the Judge’s findings at [17] to [19] are not sustainable in the light of Mansoor v SSHD [2011] EWHC 832 Admin

(e) Ms Solanki urged me to set the decision aside.

7. For the respondent, Mr Walker told me that the appeal is no longer resisted. He told me that the decision is tainted by material errors of law; that the wrong test had been applied in trying to determine whether or not article 8 family life exists, and that the Judge had made inadequate and inconsistent findings of fact. He said that he would have no objection if I set the decision aside and substitute my own decision.

Analysis

8. At the date of decision the appellant was 21 years old. It is beyond dispute that the sponsor is the appellant’s father and the sponsor was granted refugee status in the UK in August 2017. Before fleeing from Pakistan, the sponsor lived with the appellant and the appellant’s mother in Pakistan. The appellant is unmarried and dependent upon her parents.

9. In Ghising (family life - adults - Gurkha policy) [2012] UKUT 00160 (IAC) the Tribunal said that a review of the jurisprudence discloses that there is no general proposition that Article 8 can never be engaged when the family life it is sought to establish is between adult siblings living together. Rather than applying a blanket rule with regard to adult children, each case should be analysed on its own facts, to decide whether or not family life exists, within the meaning of Article 8(1). Whilst some generalisations are possible, each case is fact-sensitive.

10. In the first sentence of [16] of the decision the Judge misdirected himself in law. The Judge says

family life does not ordinarily extend to the relationship between an adult child and her parents in the absence of some special degree of dependency.

11. That sentence misinterprets the guidance given in Ghising (family life - adults - Gurkha policy) [2012] UKUT 00160 (IAC); PT (Sri Lanka) v Entry Clearance Officer, Chennai [2016] EWCA Civ 612 and Singh [2015] EWCA Civ 630. What the Judge should have looked for was evidence of a degree of dependency extending beyond the normal emotional ties. The Judge should have considered the factual position of a young lady who has only ever lived with her parents and has not established an independent life.

12. The decision is tainted by material error of law. I set it aside. There is sufficient material available to allow me to substitute my own decision.

Findings of fact

13. The appellant is a national of Pakistan born on 9 February 1996. The appellant has two sisters and brother. All of her siblings are married and pursue independent lives with their new families. The appellant is still single. The appellant lived with both of her parents until her father (the sponsor) left Pakistan on 3 March 2015.

14. The appellant’s father left Pakistan for the UK and on 21st of August 2017 was granted refugee status. The appellant remained in Pakistan with her mother, remaining in the same household that she had been brought up in and had always lived in. The appellant has never established her own independent life, and has always been dependent upon her parents.

15. On 23 October 2017 the appellant and her mother applied for entry clearance so that they could be reunited with the sponsor. The appellant’s mother’s application was successful. The respondent refused the appellant’s application on 22 January 2018. It is against that decision that the appellant appeals.

16. On 24 February 2018 the appellant’s mother entered the UK. In February 2018 the sponsor was diagnosed with prostate cancer. In May 2018 the appellant’s mother return to Pakistan to look after the appellant and did not re-enter the UK until June 2018.

17. The appellant’s only brother has now left Pakistan and lives in Nigeria. One of the appellant’s sisters lives with her husband in Germany. The appellant’s remaining sister is married and lives in a separate city in Pakistan.

18. The appellant now lives alone in Pakistan. Her parents sent her money regularly and she is entirely dependent upon their money for her maintenance. The appellant has never pursued an independent life and still relies on her parents.

The Immigration Rules

19. The only reason the appellant cannot meet the requirements of the immigration rules is that she celebrated her 18th birthday three years ago.


Article 8 ECHR


20. In Hesham Ali (Iraq) v SSHD [2016] UKSC 60 it was made clear that (even in a deportation case) the Rules are not a complete code. Lord Reed at paragraphs 47 to 50 endorsed the structured approach to proportionality (to be found in Razgar) and said "what has now become the established method of analysis can therefore continue to be followed…”


21. In Agyarko [2017] UKSC 11, Lord Reed (when explaining how a court or tribunal should consider whether a refusal of leave to remain was compatible with Article 8) made clear that the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT