Herrera v The Secretary of State for the Home Department

The Appellant is a national of Argentina aged 65. He came to the UK on 20 November 1999 on a visitor visa and was subsequently granted leave to remain as a student. That visa expired on 30 September 2002, but since then he has remained as an overstayer. On 4 April 2013 he applied for leave to remain on private life grounds. On 12 May 2014 the Secretary of State refused his application.

The Appellant appealed to the First-tier Tribunal against that decision. There was a hearing before FTTJ Hembrough on 2 February 2015. The Appellant was unrepresented, though he had the assistance of a Mackenzie friend, Ms Reid. The Respondent, rather unusually for an FTT hearing, was represented by counsel. Both the Appellant and Ms Reid gave evidence.

The Judge’s decision was promulgated on 3 March 2015. He allowed the appeal. His reasons recount the evidence which he had heard from the Appellant and Ms Reid, which he accepted in full. For present purposes I can summarise most of it very briefly. The Appellant is an educated man, who had run a small business in Argentina which had failed. He had left, intending to move eventually to the United States but had, as I have said, come first to the UK, where he stayed as a student and then overstayed. He suffers a degree of mental illness in the form of depression and obsessive compulsive disorder, and he had a short period of in-patient treatment in 2010; but his condition is now controlled by medication. Despite those problems he has been able to support himself by working in various capacities, mainly as a self-employed sound engineer and doing decorating work. He has paid income tax, national insurance contributions and council tax, though his lack of immigration status has meant that recently getting work has become more problematic. In addition he has involved himself extensively in voluntary work. There were glowing testimonials from a number of charities for which he had done work. He is not married and has no family here. It is clear that the Judge formed a very favourable impression of him. I will come back to his evidence about the extent to which he retained any links to Argentina.

The primary basis on which Judge Hembrough allowed the appeal was that the Appellant was entitled to leave to remain under paragraph 276ADE (1) (vi) of the Immigration Rules. He also found by way of alternative that he was entitled to such leave “outside the Rules” by reference to article 8 of the European Convention of Human Rights, but we are not concerned with that aspect of his reasoning on this appeal.

I should start by setting out the terms of the rule. At the time of the Secretary of State’s decision, sub-sub-paragraph (vi) defined the relevant requirement for leave to remain as being that the applicant:

The effect of the old version of paragraph 276ADE (1) (vi) was expounded by the Upper Tribunal in Ogundimu v Secretary of State for the Home Department [2013] UKUT 00060 (IAC), and that exposition was approved by this court in Akpan v Secretary of State for the Home Department [2015] EWCA Civ 1266. At paragraph 24 of his judgment in Akpan, Sales LJ said:

In the FTT the Appellant gave relatively detailed evidence going to the question whether he had any ties with Argentina. He said that he had no property there. His parents were dead. He had two sisters to whom he spoke on the telephone very infrequently and who were in straitened circumstances and would not be able to support him if he returned. He was unlikely to be able to obtain employment and had no entitlement to a pension. He felt no cultural connection to the country, having been absent for so many years.

The Judge dealt with the application of paragraph 276ADE at paragraphs 35 to 39 of his decision, which read as follows:

There was some debate before us as to the structure of that reasoning. Mr Ronan Toal, who appeared for the appellant leading Mr Greg O’Ceallaigh, said that the key paragraphs were 35-37, since they addressed the only relevant question under the Rules, namely whether the Appellant had any ties to Argentina. Paragraph 38 is concerned with a different question, namely whether he would face very significant obstacles to his integration on return. That question became relevant only under the new version of the rule, which was not applicable in the present case. Mr Toal could offer no explanation of why the Judge nevertheless addressed it. He speculated that, since the new rule had by then been in force for some time and was familiar, the Judge thought it would be appropriate to refer to it. But he said that, whatever the reason, the fact that that test was addressed in paragraph 38 did not undermine the clear conclusion in the previous paragraphs. Mr Andrew Byass, for the Secretary of State, said that paragraph 38 formed an integral part of the Judge’s reasoning, and that his findings about obstacles to reintegration were clearly intended to support his finding about “no ties”. That was particularly true of the finding that if returned he might “end up isolated and homeless”.

I do not believe it is necessary for us to decide who is right about this, but in my view Mr Toal’s is the more natural reading. Paragraph 38 is not worded as feeding into the “no ties” question: on the contrary the Judge had expressed his conclusion on that question in paragraph 37 and says at the beginning of paragraph 38 that he “also” finds very significant obstacles to integration. (I should add, by way of a digression, that it might have been easier to understand why the Judge included paragraph 38 if we knew how counsel for the Secretary of State had put her submissions, but unfortunately he does not attempt to summarise them, saying that that was unnecessary since a note appeared in the “record of proceedings” – that is to say, his own manuscript note which remains on the file of the tribunal. I appreciate that that record can be obtained by the parties if they show good reason for requesting it, and that it is in any event available to the Upper Tribunal on appeal; but it is not routinely available in this court. It is always useful, and I would suggest a helpful discipline, for judges to provide as part of their reasons at least a short summary of any submissions of law received from the representatives and any authorities referred to.)

The Secretary of State sought permission to appeal from the decision of the FTT. The grounds of appeal were not drafted by counsel who had represented her, or indeed by counsel at all. They begin as follows:

Permission to appeal was granted by an FTT judge who also in his or her reasons referred to the new wording of paragraph 276ADE (1) (vi) and not to the relevant version, but that is perhaps more venial since he or she naturally proceeded on the basis of what was pleaded in the grounds.

The appeal was heard by Deputy Upper Tribunal Judge Farrelly on 10 June 2015. The Appellant was again unrepresented. The Secretary of State was represented by a presenting officer.

By a decision promulgated on 21 July 2015, the Secretary of State’s appeal was allowed. The Judge’s reasoning can be summarised as follows. At paragraph 16 he began his consideration by saying:

This is an appeal against that decision. Permission was initially given on three grounds, but the Appellant subsequently sought to replace those grounds with a single ground. It is unnecessary to analyse the differences between the original grounds and the new ground, because in the end Mr Toal proceeded without objection from Mr Byass on the basis of two points:

that what the UT had at paragraph 25 of the decision overturned the FTT’s finding that there were very significant obstacles to the Appellant’s reintegration in Argentina if returned, which was not the relevant question under the rule, and had found no fault with the its decision on the only relevant question, namely whether he had remaining ties to Argentina; and

that, even if the UT’s decision could be interpreted as being directed, also or instead, to the “no ties” finding, no legal flaw in that finding had been demonstrated.

The position about the first of those grounds is not straightforward. The UT’s decision does indeed refer in the decision paragraph – that is, paragraph 25 – only to the issue of very significant obstacles to reintegration, and that language is also used in one or two of the preceding paragraphs. It seems clear that the terms of the argument had been infected by the misdirected grounds of appeal, which in turn was contributed to by the problematic paragraph 38 in the FTT decision. On the other hand, the Judge did, as Mr Byass emphasised, ask himself the right question at the beginning of the discussion and directed himself by reference to the correct authority; and there is a considerable overlap between the matters which are relevant on either test. I can see the force of the argument that although the Judge slipped into the wrong language the error was verbal rather than substantial.

I accordingly prefer to focus on the second ground. The errors of law explicitly identified by the UT are (a) that Judge Hembrough had not adequately explained his conclusion; and (b) that he did not appreciate the high threshold required by sub-sub-paragraph (vi). I cannot accept point (a). The Judge’s reasons for his conclusion were perfectly clear. He accepted the Appellant’s evidence in full about the very limited nature of his remaining ties with Argentina, and considered that that evidence satisfied the applicable test. The UT’s real point is that the evidence did not justify the conclusion reached. Although that could perhaps be expressed in terms of point (b) – that is, that the Judge failed to appreciate the high threshold applicable – this is not a case of any explicit self-misdirection. In truth what is happening is that Judge Farrelly infers that there was such a misdirection simply from the fact that he does not believe that Judge Hembrough’s conclusion was justified by his findings of the fact: that is, on analysis, a finding of perversity, as Mr Byass acknowledged.

I do not believe that the decision of the FTT was perverse. As is made clear in Ogundimu and Akpan, the exercise required by paragraph 276ADE (1) (vi) involves a rounded evaluation taking into account all the relevant circumstances. It is trite law that in performing an assessment of that kind different judges may reasonably reach different conclusions. Appellate tribunals must always guard against the temptation to characterise as errors of law what are in truth no more than disagreements about the weight to be given to different factors, particularly if first tribunal had the advantage of hearing oral evidence. In my view that is what has happened here. The review carried out at paragraphs 20 to 24 of the UT’s judgment reads more like a fresh assessment than a review of the reasoning of the FTT. Where Judge Farrelly differs, explicitly or implicitly, from the findings of Judge Hembrough it is essentially about matters of assessment: for example, at paragraph 21 he says of the Appellant’s evidence, which the Judge Hembrough had accepted, that he would not be able to obtain work in Argentina that “the possibility of his obtaining some employment in his home country cannot be ruled out”. I can understand that the FTT’s assessment may have been at the more generous end of the spectrum, and that another judge might have found that the Appellant’s evidence was insufficient to satisfy the test under the Rules. But in my view the conclusion reached by Judge Hembrough was one to which he was entitled to come.

I would accordingly allow the appeal and restore the decision of the FTT.

I would like to say that the oral submissions of both counsel were conspicuously succinct and well-focused.

I agree.

I also agree.