Secretary of State for the Home Department v Ronak Manyika Dube

1. In a determination dated 29 October 2014, First-tier Tribunal Judge (FtTJ) Juss allowed the appeal of the respondent (hereafter the claimant) against the decision of the appellant (hereafter Secretary of State for the Home Department (SSHD)) refusing her indefinite leave to remain. The claimant is a citizen of Zimbabwe born in May 1948. 2. The claimant last came to the UK as a visitor in October 2002. On 8 May 2003 she applied for leave to remain on human rights grounds. This was refused on 14 April 2004 with no right of appeal. Further representations made on 6 April 2005 were refused on 18 July 2005. Her appeal against that refusal was dismissed by an Immigration Judge in October 2005. 3. The claimant remained in the UK thereafter as an overstayer. In 2010 , 2011 and 2012 she made further unsuccessful applications for leave. After considerable correspondence with the SSHD the application she made on 11 January 2012 was refused in July 2014. In giving reasons for refusing it, t he SSHD took into account, inter alia, evidence she had submitted regarding her ties with three adult daughters (and their children) in the UK upon whom it was said she was financially and emotionally dependent; medical evidence showing that she had been diagnosed as HIV positive in 2003 and also suffered from hyperthyroidism, dizzy spells and memory loss ; evidence that she was an active member of the Seventh Day Adventist Church. The SSHD concluded that it was not accepted that the claimant had formed a family life with her children and grandchildren in the UK or that she could succeed under private life provisions of the Immigration Rules because she had not lived continuously in the UK for twenty years or more and on her own evidence still had family ties in Zimbabwe with two brothers and a 37 year old son. It was noted that she had remained clandestinely in the UK in full knowledge that she did not have permission to do so. The SSHD considered that she could continue being an active member of the Seventh Day Adventist Church back in Zimbabwe and that she could maintain contact with her family members and friends via the means of modern communication after she returned to her home country. As regards her health problems, the SSHD considered that there was available treatment in Zimbabwe and in this regard referred to the Country of Origin Service (COIS) Report for Zimbabwe . 4. The refusal letter went on to address the point raised by representatives on her behalf in September 2013 that the delay in any decision being made had caused the claimant “undue hardship”. The SSHD’s response was to point to the claimant’s breaches of immigration law by failing to leave the UK voluntarily or to regularise her stay until 31 March 2010: the majority of the delay in her case was said to be due to her own action in failing to submit any further application to regularise her stay until approximately four and a half years after her appeal was dismissed and she had become appeal rights exhausted. First-tier Tribunal decision 5. At the hearing the FtTJ did not hear evidence but noted the contents of a statement by Elizabeth Nyoni, the daughter of the claimant. Having heard submissions from the parties, the judge noted that it was accepted by both parties that the claimant could not succeed under the Immigration Rules. 6. The judge then proceeded to set out his reasons for deciding to allow the claimant’s appeal “under freestanding Article 8”: “10. This is a case concerning a 68 year old woman who is a HIV sufferer, and undergoes dizziness, pain, and stress, and is currently under the investigation of a consultant neurologist (see page 19 of the Appellant’s bundle). She is in a vulnerable condition largely because of her health needs. She cannot on the basis of N v the UK assert that she has a right to medical treatment in this country as against what may be available in Zimbabwe, these are facts that must necessarily be taken into account in considering how the balance of considerations fall.

11. In that respect, she has been in the UK since October 2002, having lived here for fourteen years, and in the context of enjoying family life with her children and her grandchildren, to whom she is very close. There was ample opportunity for the Secretary of State to remove her. This could have been done in 2005. It was not. A good nine years went by, during which time the Appellant has formed close family ties with her three children and grandchildren. What the House of Lords said in EB (Kosovo ) in the very clear judgment of Lord Brown, was that delay may have consequences in three particular respects, one of which was that the longer the time goes by when the Appellant is not removed, the greater her chances of casting down roots, and the greater the realisation on her part, that she is not to be removed.

12. I must take these considerations into account when I apply the five step approach in Razgar adopted by Lord Bingham (at paragraph 17). It is clear that the decision interferes with the Appellant’s Article 8 rights. The interference has consequences of such gravity as to engage Article 8. It is in accordance with the law. It may even be necessary in a democratic society for the economic wellbeing of the country. However, it is not proportionate to the legitimate public end that is sought to be achieved. I take into account that it is in the public interest, as is made clear by part 5 of the latest Rules, that immigration control is maintained.

13. However, Lord Brown was clear in EB (Kosovo ) that the very importance of immigration control, as a consideration to be applied, diminishes with the passage of time, in relation to a person who should have been removed but is not removed by the authorities.

14. I am satisfied that if the Appellant were to be removed she would not be able to enjoy her family life in Zimbabwe with her children and grandchildren in this country. The effect of her removal would be the breakdown of her family life. That family life cannot be replicated if she were to be removed to Zimbabwe .

15. On the totality of the evidence before me, I find that the Appellant has discharged the burden f proof and the reasons given by the Respondent do not justify the refusal. Therefore, the Respondent’s decision is not in accordance with the l aw and the applicable Rules.” SSHD’s grounds of appeal 7. The SSHD’s grounds of appeal were f ivefold . It was first submitted that the judge was wrong to treat delay as having “ determinative weight ” because the claimant knew that she stayed on in the UK in breach of her visa and made no efforts to depart voluntarily. Secondly, the point was made that any family or private life the claimant had was developed when she knew she had no legitimate expectation to continue it. In the third place it was argued that the FtTJ had failed to conduct the Article 8 proportionality assessment in accordance with s.117 of the Nationality, Immigration and Asylum Act 2002 and the judge’s incorrect reference to these provisions as part of the ‘Rules’ indicated their misapplication. In what w ere expressed as further limbs to the third ground, but were effectively two additional grounds, the SSHD contended that rather than approach Article 8 open-endedly the judge should have considered the claimant’s inability to succeed under the Immigration Rules as “a weighty proportionality factor in favour of removal’ ; and that the judge’s conclusion that removal to Zimbabwe would mean the “breakdown” of the claimant’s family life was not made out, as her relationship s with family members in the UK could still be maintained via modern communication means and visits. Submissions 8. In submissions Mr Melvin accepted that between 2005-2011 the SSHD had not taken steps to remove the claimant, but, maintained that it was incumbent on her to leave the UK rather than remain unlawfully and any assessment of the delay factor had to take that into account as well as the fact that in her case there had been a delay on her part in making a further application between 25 October 2005 and 31 March 2010. It was clear from the second ground of appeal that the SSHD had considered t he weight to be accorded to her relationships with family and friends in the UK as diminished by the fact that she developed or maintained these at a time when she knew her immigration status was precarious. Mr Melvin submitted that this ground coalesced with the third ground, which maintained that by virtue of the coming into force of s s.117 A- 117 D of the 2002 Act , judges had to show that they had taken enumerated considerations into account. Plainly the judge had not done so in relation to the precariousness provision set out in s.117 B ( 5) .

9. As regards family life, Mr Melvin submitted that not only did the SSHD maintain her position as set out in the refusal letter that the claimant had not established family life ; her grounds also ma de clear that she took issue with the judge’s assessment that the claimant’s departure from the UK would entail “breakdown” of her family life. That was wrong because on the one hand she still had family in Zimbabwe and on the other hand her own relationship with family members here could be maintained by electronic means or by their visiting. Mr Melvin also questioned whether the judge had allowed the appeal on a correct basis, since he referred to the decision being “not in accordance with the law”, when it plainly was . He also referred to it being not “in accordance with the applicable Rules” when he himself had recorded both parties as agree ing before him that the claimant could not win under the Rules. 10 . Picking up on a point made in amplification of the third ground, Mr Mel vin also criticised the judge for considerin g that he was entitled to conduct “a freestanding” Article 8 assessment, when since 9 July 2012 the Immigration Rules embodied Article 8 considerations and set out the SSHD’s view o f the public interest. 11 . Mr Joshi submitted that whatever the judge wrote at [ 15 ] , it was clear from [ 10 ] that he had allowed the appeal under Article 8. In relation to the delay p oint , the judge could not be faulted for following the authority of EB (Kosovo ) v Secretary of State for the Home Department [2008] UKHL 41 . The claimant had continued reporting to i mmigration o ffice r s at Loughborough Reporting Centre throughout the time she was appeal rights exhausted. The Respondent did not take any steps to remove her. Delay could reduce the significance to be given to immigration control when conducting the Article 8 balancing exercise. Lord Brown in EB (Kosovo ) clearly did not consider that claimants were prevented from relying on delay just because they overstayed. Further , the judge who granted permission to appeal had expressly stated that there was “no legal error” in the FtTJ relying as he did on delay. In relation to the SSHD’s second ground, it was clearly the judge’s view that the claimant had done all she could to make her stay less precarious. It was also relevant that during much of the period between 2005-2011 the SSHD had herself accepted that returns to Zimbabwe should not take place because the country was dangerous. 12 . As regards s . 117, this had been raised by the claimant in the skeleton argument produced on her behalf at the hearing before the FtTJ and it could not seriously be suggested that he had failed to take it into account just because he incorrectly referred to its provisions as “Rules”. “Part 5” had no other possible meaning than the new Part 5A of the 2002 Act contained in s s .117A- 117 D . Sect ion s 117 A-117D

13. Section 19 of the 2014 Immigration Act introduced into the Nationality, Immigration and Asylum Act 2002 a new Part 5A containing new sections 117 A- 117 D . As explained by Aikens LJ in YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 at [12] . ‘[t] his new Part is headed "Article 8 o f the ECHR: Public Interest Considerations". The new sections 117 A- 117 D set out statutory guidelines that must be applied when a court or tribunal has to decide whether an immigration decision to remove someone from the UK would be in breach of his Article 8 rights. The new section 117 A is headed "Application of this Part"; the new section 117 B is headed "Article 8 public interest considerations in all cases" and the new 117C is headed "Article 8 additional considerations in cases involving foreign criminals" ’ .

14. In full ss. 117A- 117 D provide: 117A Application of this Part (1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts— (a) breaches a person's right to respect for private and family life under Article 8, and (b) as a result would be unlawful under section 6 of the Human Rights Act 1998 . (2) In considering the public interest question, the court or tribunal must (in particular) have regard— (a) in all cases, to the considerations listed in section 117 B, and (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117 C. (3) In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2). 117B Article 8: public interest considerations applicable in all cases (1)The maintenance of effective immigration controls is in the public interest. (2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English— (a) are less of a burden on taxpayers, and (b) are better able to integrate into society. (3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons— (a) are not a burden on taxpayers, and (b) are better able to integrate into society. (4) Little weight should be given to— (a) a private life, or (b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully. (5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious. (6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where— (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b) it would not be reasonable to expect the child to leave the United Kingdom . 117C Article 8 additional considerations in cases involving foreign criminals. (1) The deportation of foreign criminals is in the public interest. (2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. (3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies. (4) Exception 1 applies where— (a) C has been lawfully resident in the United Kingdom for most of C's life, (b) C is socially and culturally integrated in the United Kingdom , and (c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported. (5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh. (6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. (7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted. 117D Interpretation of this Part (1) In this Part— "Article 8" means Article 8 of the European Convention on Human Rights; "qualifying child" means a person who is under the age of 18 and who— (a) is a British citizen, or (b) has lived in the United Kingdom for a continuous period of seven years or more; "qualifying partner" means a partner who— (a) is a British citizen, or (b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33 (2A) of that Act ). (2) In this Part, "foreign criminal" means a person— (a) who is not a British citizen, (b) who has been convicted in the United Kingdom of an offence, and (c) who – (i) has been sentenced to a period of imprisonment of at least 12 months, (ii) has been convicted of an offence that has caused serious harm, or (iii) is a persistent offender. (3) For the purposes of subsection (2)(b), a person subject to an order under— (a) section 5 of the Criminal Procedure (Insanity) Act 1964 (insanity etc), (b) section 57 of the Criminal Procedure ( Scotland ) Act 1995 (insanity etc), or (c) Article 50A of the Mental Health ( Northern Ireland ) Order 1986 (insanity etc), has not been convicted of an offence. (4) In this Part, references to a person who has been sentenced to a period of imprisonment of a certain length of time— (a) do not include a person who has received a suspended sentence (unless a court subsequently orders that the sentence or any part of it (of whatever length) is to take effect); (b) do not include a person who has been sentenced to a period of imprisonment of that length of time only by virtue of being sentenced to consecutive sentences amounting in aggregate to that length of time; (c) include a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders) for that length of time; and (d) include a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period, provided that it may last for at least that length of time. (5) If any question arises for the purposes of this Part as to whether a person is a British citizen, it is for the person asserting that fact to prove it."