LL, R (on the application of) v The Secretary of State for the Home Department

The applicant challenges the decision of the respondent, taken on 19 March, 2014, to refuse to grant her leave to remain in the United Kingdom under paragraph 276ADE(vi) of Statement of Changes in Immigration Rules, HC 395 as amended.

The applicant is a citizen of Jamaica, who entered the United Kingdom on 14 August, 2000, in the company of her husband and who was granted six months’ leave to enter as a visitor. The applicant claims to have subsequently suffered domestic abuse, as a result of which she and her husband have separated.

The applicant’s parents reside in the United Kingdom, indeed her father and her stepfather are both British citizens. She has two aunts who are British citizens, a half-brother, a half-sister and a cousin who are British citizens, all of whom live in the United Kingdom together with a brother who lives here. Indeed, she claimed not to have any relatives at all living in Jamaica.

Solicitors acting on behalf of the applicant wrote to the respondent by letter of 30 March, 2013 enclosing an application for leave to remain in the United Kingdom on the basis that the applicant qualified under paragraph 276ADE(vi) as an applicant over the age of 25 years with no family or cultural or social ties in the home country to which she would be required to return, if the application were not granted. At the time of the application the covering letter pointed out:-

The letter gave details of her relatives living in the United Kingdom and pointed out that she meets with her parents and siblings each week when she spends considerable time with them. It gave details of her employment and details of the higher education she had undertaken in the United Kingdom and explained that she had been an active member of her local church and played an active role as a bereavement counsellor at the [LBC]. In addition to a lengthy and detailed letter from her solicitors, the application was accompanied by a birth certificate; a letter from the applicant’s mother with a copy of her passport; copies of her mother’s payslips; a letter from her father and a copy of his passport; a copy letter from her brother [K]; a copy extract from [K’s] passport; a letter from the applicant with a copy council tax bill and passport; a copy letter from her sister and copy passport; a copy letter from her brother with copy passport; a copy of a letter from the applicant’s sister and from a friend, [MB], with a copy of his passport; together with letters in support from [TD] and [GT]. The applicant enclosed a copy of her degree certificate, bank details, HM Revenue and Customs correspondence and photographs.

The applicant’s application for leave to remain was refused on 3 May, 2013.

The notice of decision explained that the matter was considered under Article 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms by applying the relevant provisions of the Immigration Rules in force on 9 July, 2012, namely paragraph EX.1 of Appendix FM for family life and paragraph 276ADE for private life.

The notice of decision noted that the applicant entered the United Kingdom on 14 August, 2000, having been granted six months’ leave to enter as a visitor. It acknowledged that the applicant had lived in the United Kingdom for thirteen years but had not lived continuously in the United Kingdom for twenty years and did not, therefore, meet the requirements of paragraph 276ADE(iii). It continued by acknowledging that the applicant had lived in Jamaica for eighteen years and that it was in Jamaica where she had spent the majority of her life. It was not accepted that the applicant had lost ties to her country and the Secretary of State was not therefore satisfied that she could meet the requirements of paragraph 276ADE(vi). The Notice of Refusal went on to explain that the respondent had given consideration to whether or not there was anything about the applicant or her application which might permit her to allow the applicant’s Article 8 appeal outside the Immigration Rules and concluded that there were not. In doing so she was following the guidance of the Court of Appeal in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192. She also considered whether there were any exceptional circumstances in her case which would make a refusal unjustifiably harsh but could find none. The respondent noted that the applicant claims that her parents and siblings all reside in the United Kingdom and that she also has a number of other close relations in the United Kingdom. She noted that the applicant claimed to have no family ties to Jamaica and that she had lost all social and cultural ties to her home country. She noted that the applicant only spoke English, that she was educated in the United Kingdom to a degree level and had only ever worked in the United Kingdom. Against this she noted that the applicant was 31 years of age and an adult and capable of living an independent life. Although the applicant had lived in the United Kingdom for thirteen years she had still lived the majority of her life in Jamaica where she had completed her primary and secondary education. She had studied to degree level in the United Kingdom but this was without the correct permission. She had only ever been granted leave to enter as a visitor for a six month period but had remained for more than twelve years without permission. The applicant had chosen to put down roots in the United Kingdom in the full knowledge that her stay here was unlawful and therefore precarious. She had worked in the United Kingdom but again without the correct permission to do so. There was no reason why the applicant would not be able to work and support herself on return to Jamaica.

It was pointed out that the English language was the official language of Jamaica and in the circumstances there appeared to the Secretary of State to be no exceptional circumstances which justify the exercise of discretion. It appears that following that decision, the decision was reconsidered by the Secretary of State before being sent to the applicant’s solicitors under cover of a letter from the respondent dated 19 March, 2014. The applicant made an application for judicial review on 7 April 2014 to the Administrative Court. Permission was granted by Mr David Elvin, QC sitting as a Deputy High Court Judge. In granting permission he said this:-

“I am concerned that the consideration of the circumstances is so abbreviated in the decision of that (sic) it cannot fairly be seen that Article 8 has been properly addressed. Sales J in Nagre [2013] EWHC 720 (Admin) expressed reservations about the use of the formulaic ‘exceptional circumstances’ but even that approach has not been taken here and it is very difficult to see how the issue of ties with the UK and the question of the absence of ties with Jamaica and 276ADE(vi) had been properly addressed by the decision given the detail provided by the claimant and the apparent lack of contact with Jamaica for most of the claimant’s adult life.”

The matter was subsequently transferred from the Administrative Court to the Upper Tribunal.

On 25 November, 2014 Upper Tribunal Judge Reeds granted permission and in doing so said this:-

“Notwithstanding the previous grant of permission made on 14 October, 2013 and subsequent decision of 19 October, 2014 it is arguable that it does not properly and lawfully consider the issue of whether she has ties to her country of origin in accordance with the decision of Ogundimu (Article 8 new rules) [2013] UKUT 60 and in the light of the factual matters expressly raised in the application. The Acknowledgment of Service fails to engage with the grounds as pleaded. The appellant is reminded of the obligations to review whether to proceed in this claim upon received (sic) the details grounds of defence.”

The respondent wrote again to the applicant’s solicitors on 16 January, 2015. The letter pointed out that it was intended to be supplemental to, and to be read in conjunction with the original decisions of 3 May, 2013 and 19 March, 2014. The letter pointed out that the applicant’s circumstances had been reconsidered to establish whether, in her particular circumstances, there were exceptional circumstances which would warrant the grant of leave outside the Immigration Rules. It noted again that the applicant had lived in Jamaica for some eighteen years, but it was not accepted that during the time that she had been in the United Kingdom she had lost ties to Jamaica. It was believed, therefore, that she would not place very significant obstacles to her reintegration in Jamaica and that in assessing this the Secretary of State had in particular noted the length of time she claimed to have spent in the United Kingdom and in her home country. The Secretary of State concluded that she could not be satisfied that the applicant had no social, cultural or family ties with her home country or that it would not be reasonable or proportionate to expect her to return.

The letter also pointed out that the family life the applicant claimed to have with her parents and siblings did not constitute family life as set out in Appendix FM of the Immigration Rules. The applicant had not demonstrated that these relationships went beyond the normal emotional ties of parents and siblings. It accepted that it formed part of the applicant’s private life but noted that there was nothing to prevent her maintaining contact with her family and friends in the United Kingdom by alternative methods and that there would be no reason why her family and friends could not visit her in Jamaica.

It went on to note that the applicant had undertaken education in the United Kingdom, but pointed out that her education would be to the applicant’s benefit on return to Jamaica in finding employment. Having entered the United Kingdom with valid entry clearance as a visitor for six months, the applicant would have been well aware that it was expected that she was to return to Jamaica at the end of her entry clearance. The fact that she had overstayed for a significant period of time was not a factor which could weigh in the applicant’s favour. There was a need to discourage people who had come to the United Kingdom temporarily and then remain unlawfully.

Consideration was given to the rights and circumstances of the applicant’s family members in the United Kingdom. It pointed out that because they were British citizens and settled in the United Kingdom did not necessarily make it disproportionate to refuse the application. The Secretary of State noted that the applicant had no criminal convictions and was of good character but for all these reasons concluded that she was not satisfied that the exercise of discretion to allow the applicant’s appeal outside Article 8 was warranted.

At the hearing before me Mr Corban pointed out that the supplemental decision of 16 January, 2015 was made after the application for judicial review and simply did not change anything. He emphasised that it had not addressed the nature of the applicant’s ties. He submitted that paragraph 276ADE issues had not been addressed. The supplemental decision of January 2015, simply sets out the law, he complained, but does not deal with the real issue which is that the applicant has no family or other ties with Jamaica, having been in the United Kingdom for almost fifteen years. Virtually all the applicant’s close family members were in the United Kingdom. She had no relatives at all in Jamaica. He submitted that Article 8 had not been addressed at all in the supplemental letter and that the Secretary of State had failed to have regard to the fact that all the applicant’s relatives lived in the United Kingdom. They were listed at pages 45 and 46 in the applicant’s bundle. The applicant was particularly close to her father whom she saw on a weekly basis. Mr Corban suggested that there had been no consideration of the applicant’s close relationships in the context of Article 8. Put simply, the applicant has no ties to Jamaica and the Secretary of State was therefore wrong not to acknowledge that.

Responding briefly Mr Malik submitted that there was no merit at all in the application.

He pointed out that the supplemental decision of 16 January, 2014 does specifically take into account the length of time the applicant has been in the United Kingdom. It point out that the applicant spent her formative years in Jamaica and that she speaks English which is the main language in her home country. The supplemental letter makes it clear that the respondent has taken into account the claim that the applicant has no social, cultural or family ties in her home country but takes issue with that. It also points out that whilst the applicant has close ties with her parents and siblings that does not constitute family life for the purposes of Appendix FM of the Immigration Rules. He suggested that the decision of the Secretary of State clearly demonstrates that she has engaged with the decision of the Upper Tribunal in Ogundimu (Article 8 – new rules)Nigeria [2013] UKUT 60 (IAC) where the Tribunal concluded:-

“The natural and ordinary meaning of the word ‘ties’ in paragraph 399A of the Immigration Rules imports a concept involving something more than merely remote or abstract links to the country of proposed deportation or removal. It involves there being a connection to life in that country. Consideration of whether a person has ‘no ties’ to a country must involve a rounded assessment of all the relevant circumstances and is not to be limited to ‘social, cultural and family’ circumstances.”

Reliance by the applicant on that case was in any event misconceived because the applicant in that case was 6 years of age when he arrived in the United Kingdom and the appeal was a statutory appeal. This is a judicial review where the applicant needs not to establish that she qualifies but that the decision is irrational.

So far as Article 8 is concerned, permission was only granted in respect of paragraph 276ADE, but the decision was not irrational. The Secretary of State was entitled to reach the conclusion that she did. She considered the matter on an alternative basis in any event (see page 3 of the letter of January 2015).

Finally, Mr Malik referred me to the Tribunal’s decision in R (Khairdim) v Secretary of State for the Home Department (NIA 2002: part 5A) IJR [2014] UKUT 00566 (IAC) which confirmed that section 117 of the Nationality, Immigration and Asylum Act 2002 requires the Upper Tribunal, in judicial review proceedings involving Article 8(2) ECHR, to have regard to the considerations mentioned in section 117B and, where relevant, section 117C when considering the question of whether an interference with a person’s right to respect for private and family life is justified. The nature of the proceedings is such as to require the Tribunal to determine the questions set out in section 117(1)(a) and (b). Finally Mr Malik invited me to dismiss the application as failing to identify any error or mistake in law on the part of the respondent. Mr Corban again submitted that the Secretary of State had simply failed to engage with the issue. I invited him, not once, but twice, to tell me what specific issues the Secretary of State had not engaged with, but he failed to do so. He told me that there was no difference in what the Secretary of State had said in the notice of decision to grant leave to remain and what she had said in her letter of January 2015. He repeated that the case had not been considered differently and that the Secretary of State had not given substantial consideration to the facts. I reserved my decision.

Despite my inviting Mr Corban to identify to me the specific issues which he maintained that the Secretary of State had not engaged with, he was unable to do so. Having carefully reviewed the refusal of the grant of leave to remain in the light of the detailed submissions and evidence submitted with the applicant’s solicitors letter to the respondent of 30 March, 2013, and having carefully listened to submissions made on behalf of the applicant, I have concluded that I must dismiss this application, since it fails to identify any irrationality or illegality on the part of the respondent in her decision of 19 May, 2014. The application amounts to nothing more than a disagreement with the Secretary of State’s decision. ~~~~0~~~~