Sardabai Mansukhlal Girdharlal Thakrar v The Secretary of State for the Home Department

The appellant, a citizen of Kenya born in July 1948, appeal ed to the First-tier Tribunal against the decision of the respondent on 23 October 2015 to refuse the appellant’s human rights claim.

The appellant entered the United Kingdom as a visitor from Nairobi on two occasions in 1999 and once in each of 2005 and 2007.

In 2008, the appellant obtained from the British High Commission in Mumbai, India further entry clearance as a visitor. She used this entry clearance to enter the United Kingdom on 13 July 2008, until 9 January 2009.

On 7 January 2009, the appellant submitted an application for indefinite leave to remain as a dependent relative (mother) of a settled person in the United Kingdom. The respondent refused that application and the appellant’s resulting appeal to the Asylum and Immigration Tribunal was dismissed on 18 August 2009.

The appellant appears to have become appeal rights exhausted on 22 March 2010. Since that time, she has lived in the United Kingdom unlawfully.

On 15 October 2015 , the appellant submitted an application for leave to remain on Article 8 grounds. This was refused without a right of appeal on 26 November 2013. She then made an application for settlement, together with a human rights claim which was refused in a letter of decision dated 5 April 2016.

In the letter of decision, the respondent noted the submissions that had been made by the appellant. This included the assertion that she had established strong family connections and family ties in the United Kingdom “notably with your son and his wife resident with you at [address] I n your representations dated 26/10/2015, you also claim to have a daughter residing in the United Kingdom and that you have 18 siblings all resident in this country. You claim to have no family members in Kenya.”

The decision letter continued by noting that the appellant had provided letters from her United Kingdom doctor, written in 2008 and 2013 , stating that she suffered from depression, high blood pressure, high cholesterol, long term insomnia and vitamin D deficiency.

The respondent concluded that the appellant’s application did not fall within the scope of the Immigration Rules. Accordingly, the respondent gave consideration to whether the appellant’s removal from the United Kingdom would breach her Article 8 rights , or those of her family. The clear thrust of the letter was that the respondent did not consider Article 8 could avail the appellant.

In her grounds of appeal to the First-tier Tribunal, the appellant referred to the death of her husband, during a family holiday in India in 2008. She said that she was “brought by her children to the United Kingdom on 7/7/2008 as a family visitor”. The grounds stated that the appellant “then left the UK accompanying her son and made a genuine attempt to r e settle back in Kenya. Unfortunately things were not in her favour and all turn futile as she could not stay longer as she was unable to bear the deceased husband’s absence in Kenya. The appellant therefore with her son returned to the UK in November 2008. ”

The grounds then made reference to the asserted vulnerability of the appellant; her dependency on her son and daughter; the absence of relatives in Kenya and India; a “genuine attempt ” being made “ to re settle back in Kenya ” which “ prove d futile”; and all close/extended family members were in the United Kingdom.

A further explanation of why the appellant could not return to Kenya was given as follows:-

Further reference was then made to the appellant’s asserted need for long term care, to be provided by her son and daughter in the United Kingdom.

The appellant’s appeal was heard by First-tier Tribunal Judge Eldridge, sitting at Hatton Cross in February 2017. In a decision promulgated on 6 March 2017, Judge Eldridge dismissed the appellant’s appeal.

The judge noted that he had before him a bundle, which extended to 190 pages. He also heard oral evidence from the appellant, her son Mr Thakrar, her daughter, Mrs Madhvani, two of the appellant’s sisters and the appellant’s then 16½ year old granddaughter. It is common ground that the judge also heard evidence from the appellant’s grandson , although the judge did not refer to this in the decision . Before me, Mr Dixon rightly did not seek to make anything of this omission. As we shall see, Mr Dixon’s attack o n the judge’s decision was somewhat broader.

At paragraph 12 of his decision, the judge said this:-

At paragraph 13, the judge rejected the contention, contained in the statement of the appellant’s son, that she required long term care to do everyday personal household tasks. The judge said that this “does not accord with the evidence I received in court. I accept that the appellant does struggle to undertake some tasks but she is clearly of great assistance to both her son and her daughter and grandchildren and she is able to care for herself and her personal needs, as she told me in cross-examination. She cooks but finds cleaning the house now to be difficult but she can look after the children.”

At paragraph 14, the judge noted that there was only “very limited documentary evidence concerning her health”. All the judge had was the two doctor’s letters of 2008 and 2 013, written by Dr Kansagra who, the judge noted, “is part of the extended family living in this country”.

Although the judge had found that the appellant’s son exaggerated the appellant’s health issues, he otherwise found him to be a credible witness. The judge accepted that the appellant would be financially supported, if allowed to remain in the United Kingdom.

The judge was in no doubt that the appellant could not satisfy the requirements of the Immigration Rules relating to adult dependent relatives. He did not accept that there was no one in Kenya left whom the appellant knew. She could return to the temple at which she worshipped in Kenya. T he family had the means to support her financially in another country.

Given his findings regarding the exaggeration of the appellant’s health issues, the judge was not satisfied that the appellant needed to be in the United Kingdom in order for those issues to be adequately addressed.

Turning to paragraph 276ADE of the Immigration Rules, the judge examined whether there would be “very significant obstacles” to the appellant’s integration in Kenya. In so doing, the judge had regard to the judgment of the Court of Appeal in SSHD v Kamara [2016] EWCA Civ 813. At paragraph 23, the judge found that the appellant had lived for a very long period in Kenya and had a home in the same place there for at least twenty years. Although she had not been back for over eight years, she had been living within an expatriate family; as a Kenyan national of Indian origins she still spoke the language which “must have served her well over her life with her husband in Kenya”; and she would be able to understand how society in Kenya worked. Although “as a single woman in her late 60s life would not be as easy as when she was married and younger … with the assistance of the financial support and encouragement from the family in the United Kingdom, over time she has an ability to participate once more in life in that country and to re-establish or build up relationships”.

At paragraph 24, the judge noted that the concept o f “very significant obstacles” had been examined by the Upper Tribunal in MK [2015] UKUT 00223. That case had also considered the relevance of the expression “unduly harsh”. The judge concluded at paragraph 24 by saying:-

The judge then turned to Article 8. His f indings were as follows:-

The appellant’s grounds of application for permission to appeal submitted that the First-tier Tribunal Judge had failed to have regard to the best interests of the grandchildren as a “primary consideration”, contrary to ZH (Tanzania) [2011] 2 AC 166. So far as financial independence was concerned, the grounds contended that being financially independent wa s not the sole issue in the circumstances of the present case:-

The third and final ground contended that the judge had made no findings on the issue of whether the appellant “had been the victim of crime in Kenya on two occasions. The FtT judge said that he found the Appellant’s son to be essentially credible and yet made no findings on this issue. The appellant herself confirmed this” .

The grounds submitted that being the victim of crime was plainly a relevant factor to take into account, whether under the Rules or under Article 8.

First-tier Tribunal Judge Mark Davi e s refused permission to appeal, in a decision dated 18 September 201 7 . He considered that the grounds to which I have referred amounted simply to a disagreement with the judge’s findings.

The appellant then applied to the Upper Tribunal for permission to appeal. In a detailed decision dated 22 November 2017, Upper Tribunal Judge Smith refused permission to appeal.

Upper Tribunal Judge Smith was not persuaded that the criticism of the way in which the First-tier Tribunal Judge had dealt with the best interests of the children disclosed an arguable error of law on his part. She observed that the judge’s reference at paragraph 2 7 of his decision to “ safeguarding ” simply repeated the wording of section 55(1)(a) of the Immigration and Asylum Act 1999, concerning the respondent’s obligations in respect of children, in the immigration context. Furthermore, the point at which the judge had undertaken his “best interests” assessment was unarguably correct. He had done so “after considering whether the appellant can meet the Rules and before turning to look at Article 8 outside the Rules”.

Upper Tribunal Judge Smith then considered the significance of the contribution which the appellant’s son makes to the United Kingdom economy:-

Finally, Upper Tribunal Judge Smith pointed out that paragraph 12 of the appellant’s grounds was incorrect, in suggesting that financial independence was at best a neutral factor. Although the Upper Tribunal Judge did not identify the relevant passage in the judgments of the Court of Appeal in R h uppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, where the point is made plain, it is helpful for me to do so:

Upper Tribunal Judge Smith recorded that Judge Eldridge had “unarguably properly considered the issue whether there would be very significant obstacles to the appellant’s integration in Kenya” and that ground 3 was “merely a disagreement with the judge’s conclusion”.

The appellant sought a judicial review of Upper Tribunal Judge Smith’s refusal of permission to appeal. The grounds of application run to 67 paragraphs. The following features of these grounds are of particular note:-

Emphasis w as placed on the appellant hav ing been a victim of crime: “It was primarily as a result of the experience of being a victim of crime which led to a material loss of morale and confidence which then necessitated her being brought back to the UK … “;

The financial contribution made by the appellant’s family to the United Kingdom was said to be a feature that engaged the “second appeals” test (see paragraph 38 below) :

The grounds raised an issue that had not featured in the applications for permission to appeal; namely, whether the First-tier Tribunal Judge should have treated the appellant’s private life as a matter of little weight, given that it had been established in the United Kingdom while she had been here unlawfully. Extensive reference was made to the judgment of Sales LJ in R h uppiah ;

Conversely, the grounds completely ignored Upper Tribunal Judge Smith’s response, based on R h uppiah, to the submission that financial independence could amount to more than a neutral factor, in terms of section 117B(3).

Permission to bring judicial review was granted by a High Court Judge on 16 February 2018. He said it was arguable that the First-tier Tribunal Judge’s :-

The High Court’s characterisation of the appellant’s case as the ne plus ultra of adult dependent relative claims went far beyond the grounds of challenge to the First-tier Tribunal’s decision. Wide-ranging though they were, th ose grounds had not attempted to advance the argument that the First-tier Tribunal Judge had erred in law , in that only one outcome of the appeal was possible; namely, to allow it.

As Walker J held in R (G & H) v Upper Tribunal [2016] EWHC 239 (Admin) and as the Upper Tribunal has more recently pointed out in Shah (“ Cart ” J udicial R eview: N ature and C onsequences ) [2018] UKUT 51 (IAC); [2018] Imm AR 707, a “Cart” judicial review involves determining whether the Upper Tribunal arguably erred in law in rejecting the grounds which accompan ied the application for permission to appeal to it against the First-tier Tribunal’s decision and, if so, whether the second appeal criteria are met.

So far as the second appeal criteria (Footnote: ¹) are concerned, there are two points to observe regarding the High Court’s view that the consequences of removing the appellant w ould be “so momentous … that I can safely say there is a compelling reason for an appeal to be heard”.

First, all appeals to the First-tier Tribunal against the respondent’s refusal of a human rights or a protection claim involve the prospect of removal: see section 82(2)(a) and (b)(i), 84(1) and 113(1) of the Nationality, Immigration and Asylum Act 2002. The prospect of forced removal from the United Kingdom is an inherently serious matter ; but all the more so if, as will almost always be the case, it is being contended that removal would violate the United Kingdom’s obligations under the Refugee Convention or the ECHR.

It therefore cannot be correct that the so-called second limb of the second appeal criteria is always engaged in these circumstances. If it were, then th ose criteria would lose their function, as a restriction on the power to grant permission to appeal in immigration cases .

Secondly, on this issue also, the High Court judge went beyond what the appellant was seeking to argue. The grounds accompanying the judicial review application did not attempt to categorise the consequences of removal as a reason why the second limb of the second appeal criteria w as engaged. Rather, the grounds concentrated on the first limb, which is that the proposed appeal “would raise some important point of principle or practice”.

Insofar as the High Court Judge who granted permission did so on the basis that there were particular features of the appellant’s case that made it engage the second limb , he proceeded from his own view of the in ability of the respondent to resist the Article 8 case of a widow who had for eight years been embedded with her British family, whilst in breach of immigration law.

In the light of the grant of permission to appeal, which followed the grant of judicial review and the quashing of Upper Tribunal Judge Smith’s refusal , I have to decide whether there are errors of law in the decision of the First-tier Tribunal Judge, such that his decision requires to be set aside .

The First-tier Tribunal Judge was criticised for not taking account of the fact that the appellant had twice been the victim of crime, whilst in Kenya during 2008 . I have no hesitation in rejecting this criticism. Indeed, I find it not only spurious but also indicative of a lack of candour on the part of the appellant and her family.

As I have already observed, th is issue does not appear to have featured, at least to any material extent, in the submissions made to the respondent, which resulted in the refusal of the human rights claim that is under appeal. It certainly did not feature in the grounds of appeal against that decision.

At the hearing before me, Mr Dixon said that one of the criminal incidents had been perpetrated by the appellant’s carers. He was, however, unable to point me to anything in the evidence to confirm this. I note that it does not feature in the witness statement of the appellant.

More importantly, the First-tier Tribunal Judge was not told about the previous appeal hearings, involving the appellant. The immigration history set out earlier records that an appeal was heard in August 2009. Following a High Court review, granted to the appellant, the Article 8 aspect of that appeal was reconsidered.

As a result of my asking the parties about these proceedings, Mr Duffy, for the respondent , produced a copy of the decision of Immigration Judge Doran, promulgated on 8 January 2010. T his decision is highly revealing. It sets out paragraphs 4 to 11 of the determination of Immigration Judge Lingard , promulgated in August 2009. Despite the reconsideration of Judge Lingard’s decision , her findings in paragraphs 4 to 11 had “not been disputed”, according to Immigration Judge Doran. He also reproduced Judge Lingard’s findings and conclusions, recorded at paragraphs 31 to 41 , which he said “ have also not been challenged”.

At paragraph 41 of Judge Lingard’s unchallenged findings , we find the following:-

The submissions made by Mr Davison, Counsel for the appellant before Judge Doran, are recorded at paragraphs 43 to 46 of Judge Doran’s determination. There is no reference in those submissions to the burglaries that occurred in 2008. It is plain that they were not being relied upon, on the basis that their significance for the appellant’s Article 8 case had been addressed by Judge Lingard in 2009.

In the se circumstances, I find that the emphasis now sought to be placed on the burglaries , in the various sets of applications that followed the First-tier Tribunal Judge’s decision , is entirely inappropriate.

The First-tier Tribunal Judge is criticised for failing to make a finding about what is said to have been the evidence regarding significant religious and cultural inputs made by the appellant to the lives of her two grandchildren.

G randdaughter R was 16 at the date of the hearing before Judge Eldridge. Her brother, S, was 12. R’s handwritten statement concentrated upon what it would be like for the appellant if the latter were to have to leave the United Kingdom. So far as R herself was concerned, her statement said that the appellant “does so much for me and my family she is always looking after me and my brother, although we may be a handful, she always find s a way to control us and educate us on what family means”.

S’s statement said that the appellant was “the best nani in the world. She cooks the best food, gives the best hugs and kisses, what more could you want”. If she were to leave the United Kingdom , S was concerned over “who else was going to cook the best food and who else would give the best hugs and kisses in the world”. Sometimes, when S’s parents “go to the films, … we have no worries as nani’s always there comforting us and taking care of us”.

Some drawings and photographs were exhibited with the statements of the grandchildren.

In her statement, the appellant said:-

The appellant’s daughter (the mother of R and S ) said:-

The attempt to characterise this evidence as significant, in Article 8 terms, is doomed to failure. At paragraph 28 of his decision, Judge Eldridge was, I find, entirely justified in categorising the relationship between the appellant and her grandchildren in the way he did. The judge noted that the appellant stayed with the mother and the children only in alternate weeks. Nevertheless, he accepted that the grandchildren were very attached to the appellant who plays an important part in their lives and that her removal would be a source of great regret to them.

Many children, of all backgrounds, learn valuable things from their grandparents. As a general matter, the relationship between grandparent and grandchild, beneficial though it may be, is unlikely to carry material weight in terms of Article 8, unless the grandparent has stepped into the shoes of a parent. In the present case, there was no evidence before the First-tier Tribunal Judge to begin to show that the grandchildren would be deprived of access to relevant religious instruction or that they would suffer any material degradation in their sense of cultural identity, were the appellant to return to Kenya.

This brings me to the critique of the First-tier Tribunal Judge’s approach to the best interests of children in section 55 of the 2009 Act. The v arious grounds of challenge contend that the judge was wrong to look at best interests in terms of the welfare of the grandchildren.

The concept of welfare, however, lies at the heart of the obligation. That this is so emerges clearly from the judgment of Lady Hale in ZH (Tanzania) :-

The upbringing of a child; or

The administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.”

the best interests must be the determining factor for specific actions , notably adoption (Article 21) and separation of a child from parents against their will (Article 9);

the best interests must be a primary (but not the sole ) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (Article 3).” (emphasis in original)

The First-tier Tribunal Judge rightly noted that the grandchildren live with their parents. The appellant stays in the house only on alternate weeks. If the appellant were removed to Kenya, the children will continue to live with their parents.

Once the relationship between the appellant and the grandchildren is stripped of the hyperb ole which those acting for the appellant put on it, these findings of the First-tier Tribunal Judge were determinative of the “best interests” issue.

Turning to the position of the appellant herself, Judge Eldridge was entitled to find that there would not be very significant obstacles to the appellant’s integration in Kenya. The judge gave adequate reasons for that finding. He did not overlook any material evidence in this regard. Properly read, paragraph 24 of his decision does not show that he was imposing a test of whether it would be “unduly harsh” for the appellant to return. As I have already noted , his reference to that test arose because he was examining the issue of “very significant obstacles” by reference to the case law of Kamara and MK .

I have already noted that the grounds of application to the High Court for judicial review of the Upper Tribunal ’s refusal of permission to appeal advanced a ground concerning the judgment of the Court of Appeal in Kamara that had not been put to the Upper Tribunal. In Kamara , Sales LJ expressed doubt as to whether a person’s immigration status was necessarily “precarious” in terms of section 117B(5), where that person does not have indefinite leave to remain in the United Kingdom.

T his ground should not have featured in the application for judicial review. Leaving aside the issue of “Robinson” o bvious points (with which we are not concerned), Upper Tribunal Judge Smith c an not be criticised for not dealing with a ground of challenge that was not put to her.

In any event, there are two reasons why this ground is without merit. First, Sales LJ’s doubts were confined to a person who has limited leave to enter or remain . There is nothing in his judgment that suggests he was thinking a person’s immigration status might not be “precarious”, notwithstanding that th e person is in the United Kingdom unlawfully. On the current state of the law, the only situation in which weight could be given to a private life developed by an overstayer or illegal entrant would be in the circumstances described by the House of Lords in EB (Kosovo) [2008] UKHL 41 ; namely, where there has been a delay by the respondent in relevant decision making. No issue of delay is taken in the present case.

Secondly, whatever section 117B(5) might say about the issue is, frankly, irrelevant. Section 117B(4)(a) states in terms that little weight should be given to a private life established by a person at a time when that person is in the United Kingdom unlawfully. It is therefore in my view impossible for the appellant to pray section 117B(5) in aid.

The issue of very significant obstacles to integration in Kenya is closely entwined with th at of the appellant’s physical and mental health. So far as her physical health was concerned, the First-tier Tribunal Judge rejected the claims being made on the appellant’s behalf by her and the other witnesses. So far as I am aware, there is no criticism made of his conclusions on this issue which were, in any event, open to him on the evidence.

The evidence put forward regarding the appellant’s alleged mental health difficulties was entirely historic in nature. As long ago as 4 October 2013, Dr Kans a gra had recorded (bundle, P161) that the appellant was “recovering well from her depression”. That fits with the evidence regarding the appellant’s private health insurance, dated from January 2018, which records her as stating that, in the past five years, she had not had or received treatment for “mental illness, including depression, that has required referral to a specialist”. She also answered “no” to the question whether in that period she had received treatment for a heart condition or a heart problem.

The final area of criticism regarding the First-tier Tribunal Judge’s decision relates to the financial position of the appellant and that of her family. The appellant criticises the judge’s finding, at paragraph 33 of the decision, that “even although I was satisfied that at the moment the appellant’s health needs are met privately, in the reasonably settled order of these things, that may well not be the case in the future”.

The appellant contends that this point was never put to her by the judge and that, in the circumstances, his finding is irrational.

I do not agree. Given the credibility issues that the judge had identified, and in the light of the concerns I have expressed regarding the lack of candour regarding the significance of the burglaries in Kenya, it was not at all speculative for the judge to conclude that, if the appellant were to be granted leave to remain in the United Kingdom on Article 8 grounds and became entitled to receive NHS treatment, she might well decide to do so.

In any event, I do not consider that this criticism of the judge, even if made out, can be said in any way to be material. It is quite evident from his decision that the outcome would have been the same, even on the basis that the appellant would continue to seek private medical attention, should this be necessary.

The second challenge to the First-tier Tribunal’s Judge’s decision regarding the financial means of the appellant and, more particularly, her son is articulated above; most markedly in the grounds that accompanied the application for judicial review.

In summary, the argument is as follows. In striking the proportionality balance under Article 8(2), the First-tier Tribunal Judge should have had regard to the fact that the appellant’s son is running a substantial business, employing 40 people, with a turnover of £950,000 a year, and is, as such , an overwhelming net contributor to the UK economy. As Mr Dixon puts it in his written submissions for the hearing on 2 July:-

On behalf of the appellant, Mr Dixon sought to rely on the judgments of the Court of Appeal in UE (Nigeria) and Others v Secretary of State for the Home Department [2010] EWCA Civ 975. That case, however, makes reference to a number of earlier decisions. Two of these require some analysis, in order to understand the judgments in UE .

In R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] Imm AR 352, the House of Lords considered a challenge to the refusal by the Immigration Appeal Tribunal to grant permission to appeal against the decision of an adjudicator. The adjudicato r had dismissed the appeal of the applicant against the Secretary of State’s decision to deport him as an overstayer , pursuant to section 3(5)(a) of the Immigration Act 1971.

The applicant had been part of an Indian folk music group. The adjudicator held that, in deciding whether to exercise differently the Secretary of State’s discretion under paragraph 154 of the Immigration Rules (as then in force), he could not have regard to the effect of the applicant’s deportation upon the Sikh community, who benefited from his playing “at festivals and the like”, where the applicant was “a major attraction … capable of attracting audiences of several thousands”.

The House of Lords held that, on a proper construction of paragraphs 154, 156 and 158 of the Immigration Rules, such a consideration as just described w as within the range of matters to be considered by the Secretary of State and, by extension, the adjudicator.

The House of Lords rejected the proposition, advanced on behalf of the Secretary of State, that the effect of deportation on third parties was a matter which the Secretary of State alone, rather than the Immigration Appellate Authorities, could consider. This was because of the combined effect of paragraphs 154 and 156 to 158 of the Immigration Rules. In giving the only reasoned opinion, Lord Bridge said this:-

We now move forwa rd by over two decades to 2008 and the case of RU (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 753. This was primarily concerned with the significance or otherwise of the Secretary of State’s delay in making an immigration decision regarding the appellant. During his time in the United Kingdom, the appellant had established a business here.

The lead judgment was given by Scott Baker LJ. For our purposes, the relevant passage is as follows :-

Richards LJ agreed with the judgment of Scott Baker LJ. So too did Pill LJ, who also said this:-

I now turn to UE . This case involved six appellants : a husband and wife and their four children. In determining their Article 8 rights, Immigration Judge Dean “took account of the effect of removal on each of the appellant s in terms of their individual activities: in one case as a writer, a poet and performer; in other cases on their educational progress and their work and cultural activities” (paragraph 6).

Judge Dean was not , however, prepared to put into the balancing exercise mandated by Article 8(2) the value of the appellant’s various activities to the community in the United Kingdom. In reliance upon MA (Afghanistan) v Secretary of State for the Home Department [2006] EWCA Civ 1440, the judge held that those activities were only relevant when considering the impact of removal on the appellants themselves.

At paragraph 8 of his judgment, Sir David Keene put the question to be decided as follows:-

For the appellants, Mr Knafler relied upon the decision of the House of Lords in Bakhtaur Singh “where it was held that in deportation cases the effect on third parties of the deportation, including any loss of value to parts of the community in this country, was a relevant consideration to the exercise of discretion under the Immigration Rules” (paragraph 10).

By contrast, Mr Auburn, for the Secretary of State, submitted that the “rights conferred on individuals under the European Convention … are not a reward for good behaviour or for their contribution to society but are intrinsic” (paragraph 11).

At paragraph 18, Sir David Keene said that, although value to the community c ould only be taken into account, so far as relevant to the exercise of immigration control, the retention in the United Kingdom of someone who is of considerable value to the community could properly be seen as relevant to such control (paragraph 18). It was a matter going “to the weight to be attached to that side of the scales in the proportionality exercise”. Moreover:-

On Bakhtaur Singh , Sir David Keene had this to say:-

Sir David then turned to the issue of whether a finding to that effect was open to the Court of Appeal, in the light of the judgments in RU (Sri Lanka) . In summary, he did not consider that the statement of Scott Baker LJ at paragraph 40 of the latter’s judgment constituted part of the ratio in RU and so it was, accordingly, open to the court “to find that the loss of such public benefit is capable of being a relevant consideration when assessing the public interest side of proportionality under Article 8 and as a matter of principle I do so find” (paragraph 35).

Having done so, Sir David immediately sounded the following note of caution:-

In referring to Lord Bridge’s examples, it seems that Sir David Keene had in mind the following passage from the opinion in Bakhtaur Singh :-

Richards LJ agreed that the appeal in UE should be allowed. H e did not consider that the Court of Appeal was precluded from so finding by the judgments in RU (Sri Lanka) .

However, Richards LJ did not take the same view of the relationship between Bakhtaur Singh and Article 8 as Sir David Keene had done:-

Like Sir David Keene, Richards LJ was doubtful whether, if it had been properly taken into account, the contribution of the appellant to the community would have made any difference to the judge’s ultimate conclusion ; but he could not say that the judge would clearly have reached the same conclusion in any event.

Ward LJ, the third member of the court, was alive to the differen ce in view s of Sir David Keene and Richards LJ regarding Bakhtaur Singh :-

Mr Dixon also relied upon the judgment of HHJ Worster, sitting as a Deputy High Court Judge, in R (Zermani) v Secretary of State for the Home Department [2015] EWHC 1226 (Admin). It seems from the Deputy Judge’s judgment that he was concerned with a decision made pursuant to paragraph 353 of the Immigration Rules, in which the Secretary of State refused to treat submissions that followed the refusal of a human rights claim, as a “fresh claim” giving rise to a right of appeal to the First-tier Tribunal.

The applicant was said to be of value to the local community in Wrexham, in connection with his work for the Wrexham Refugee s and Asylum Seekers Support Group, and other organisations, as well as organising a community football tournament for young people. The applicant helped the Welsh Refugee Council and was said by the chairman of the local mosque to be a highly valued member of “our community”. The local police d iversity o fficer also referred to the applicant’s “assistance and guidance whilst helping the Muslim community”.

The Deputy Judge’s attention was drawn to the passage in Sir David Keene’s judgment in UE , in which he gave his views as to the scope of the analysis required, on the one hand , under the Immigration Rules and, on the other, in connection with the proportionality balancing exercise inherent in Article 8(2) of the ECHR. It does not appear that the Deputy Judge’s attention was drawn to the somewhat different analysis contained in the judgment of Richards LJ.

Having noted a number of Scottish cases, which followed the approach in UE , the Deputy Judge held that, on the facts of the case before him, the Secretary of State had not had proper regard to the letters of support, attesting to the applicant’s value to the community.

According to the Deputy Judge: -

The Deputy Judge’s reference to taking a decision outside the Rules leaves it unclear whether this was , in fact, a fresh claim case. In any event, the Deputy Judge made it plain that his decision to grant judicial review was not to be taken as indicating what the Secretary of State might conclude, following an analysis of the letters of support.

It is now necessary to take stock of the position.

It is, of course, the case that the balancing exercise to be undertaken in Article 8(2) situations is a wide -ranging one. So much is plain not just from UE but, more particularly, from the House of Lords ’ opinions in Razgar v Secretary of State for the Home Department [2007] UKHL 2 7 and Huang v Secretary of State for the Home Department [ 2007 ] UKHL 11 .

That does not, however, mean there is no difference between , on the one hand, the factors which the respondent may consider in deciding how to exercise discretion under the I mmigration R ules or other statement s of immigration policy and, on the other hand, the factors to be decided in determining the weight to be given to the public interest in maintaining immigration control. O n this issue, I respectfully consider that Richards LJ was right to say what he did in paragraphs 39 and 40 of UE .

In 1986, the a ppellate regime was such that an adjudicator, determining a deportation appeal of the kind described in Bakhtaur Singh , was requir ed to decide whether the Secretary of State’s discretion under the Immigration Rules should be exercised differently . In a real sense, therefore, the adjudicator was an extension of the decision-making process and so had to take his or her own view of matters of immigration policy , albeit giving appropriate weight to the view of the Secretary of State .

The present a ppellate regime is radically different. Appeals no longer lie against decisions taken under the Immigration Rules. Leaving aside revocation of protection status and deprivation of citizenship, immigration appeals now lie only against refusals of protection and human rights claims. First-tier Tribunal j udges are no longer empowered by Parliament to decide how a discretionary policy expressed in the Immigration Rules should be exercised in a particular case .

Even before the radical changes effected to the appeal regime by the Immigration Act 2014, there had been, over the years, a marked decline in the instances of discretionary decision-making under the Rules. In particular, the adoption of the “points-based” system removed much of the discretion for which the Rules had previously provided.

The fact that the respondent has to operate his immigration policy compatibly with Article 8 does not mean that each and every decision he makes, pursuant to the I mmigration R ules and his other policies, as to who should and should not be allowed to enter and remain in the United Kingdom , must be based on considerations which are necessarily the same as those relevant to a proportionality balancing exercise under Article 8.

Accordingly, t he warnings contained in the judgment s of Sir David Keene and Richards LJ are important. Before co ming to the conclusion that submissions regarding the positive contribution made to the United Kingdom by an individual fall to be taken into account, as diminishing the importance to be given to immigration controls, a judge must not only be satisfied that the contribution in question directly relates to those controls. He or she must also be s atisfied that the contribution is “very significant” . In practice, this is likely to arise only where the matter is one over which there c an be no real disagreemen t .

I am not sure that the list of examples given by Lord Bridge in Bakhtaur Singh are all of this kind. It must be remembered that those examples were given against the background of the former appellate regime which, as I have said, gave adjudicators a foothold in the policy realm that is not shared by the ir successors.

Without in any way intending to be prescriptive, it is likely that one touch stone for distinguishing between instances that lie, respectively, e xclusively in the policy realm and in the area of Article 8 , is whether the removal of the person concerned will lead to an irreplaceable loss to the community of the United Kingdom or to a significant element of it.

I f judicial restraint is not properly maintained in this area , there is a danger that the public’s perception of human rights law will be adversely affected.

The following example is, perhaps, useful. Let us assume a judge is faced with two human rights appeals in respect of individuals whose situations are entirely the same, save for the fact that one is a bus driver and the other a brain surgeon . The judge might have his or her own view as to which occupation is of more value to the United Kingdom . But t hat view, alone, should not lead the judge to treat them differently under Article 8. Were the judge to do so, he or she would be seriously trespassing upon the respondent’s policy realm.

It must be emphasised that UE is binding authority that, in an appropriate case, the weight to be given to the importance of maintaining immigration control can be diminished by reason of the effect that the removal of the appellant from the United Kingdom would have upon the community. I have tried to identify what are the correct criteria for determining if the case is, in fact, an appropriate one .

In Lama (video recorded evidence – weight – Article 8 ECHR) [2017] UKUT 00016 (IAC), the Upper Tribunal (McCloskey J) extended the principle in UE to a case where the appellant’s removal from the United Kingdom would prevent a third party, who would remain in the United Kingdom, from continuing to make a contribution to United Kingdom society. In Lama , the person in question was “Mr R, who made a significant contribution through his acting to the community in general and to the cohort of disabled people in society” (paragraph 43). Although McCloskey J held that someone else could, in theory, be substituted for the appellant in Mr R’s life , nevertheless “in qualitative and emotional terms, [the appellant] is irreplaceable”.

Given what I have just said, Lama has in my view to be seen as in effect deciding that Mr R’s contribution to the community would be materially impaired if he had to be cared for by anyone other than the appellant. Otherwise, it seems to me th at Lama comes close to saying that immigration controls counted for less, because of Mr R’s status.

How does the appellant’s submission on this issue fit within the case law? The blunt answer is that it does not. There is no prospect of the appellant’s son abandoning his business, and the employees who work in it, if the appellant were to be removed to Kenya. What the Tribunal is being asked to do can be distilled into the proposition that someone whose family makes a substantial contribution to this country’s economy ought thereby to be subject to a less stringent set of immigration controls than a person whose family does not make such a contribution.

Not only is th is , in its own terms, an extremely unattractive proposition. It is one which, if allowed to succeed, would inflict gr ave damage on human rights law. It would introduce an entirely unjustified distinction between the rich, and everyone else. It would also lead to ca lls for other forms of contribution to be so recognised. As can be seen from Lama, that danger is real.

It is, of course, the case that wealth is a factor that can directly impact on a person’s ability to secure leave to enter or remain under the Immigration Rules. Obvious examples are to be found in the rules relating to entrepreneurs, investors and retired persons of independent means.

In MM (Lebanon) and others v Secretary of State for the Home Department [2017] UKSC 10, the Supreme Court rejected a challenge to the lawfulness of the rules that impose a minimum income requirement (MIR) on non-EEA family members seeking entry to join their settled partners in the United Kingdom. A person who cannot meet the MIR can demand to be given entry clearance if he or she has a case of such a nature as, exceptionally, to succeed under Article 8 of the ECHR.

The appellant can find no support for her proposition from the existence of rules of this kind. The fact that the respondent’s immigration policies in some respects favour those who will not be a burden on public funds, if admitted to or allowed to remain in the United Kingdom, or might encourage the wealthy to come to this country, does not mean a person’s wealth thereby becomes a factor which , in the context of Article 8, generally diminishes the importance to be given to be given to the system of rules that the respondent has chosen to frame, pursuant to his functions under the Immigration Acts.

I wish to emphasise that nothing I have just said is intended to be a criticism of the appellant’s son. On the contrary, his energy and success are to be commended. Human rights, however, are not , without more, to be dispensed by reference to such matters.

With all of this in mind, it is relevant to turn to the rules on adult dependent relatives . I n the introduction to the Immigration Directorate Instruction Family Migration: Appendix FM Section 6.0 (August 2017) we find the following:-

a British citizen in the UK;

a person settled in the UK; or

a person in the UK with refugee leave or humanitarian protection;

T he important point is that the respondent’s policy specifically requires everyone, rich and poor alike, to show that the requisite care can only be provided in the U nited Kingdom by a relative here. It is not enough that there will be no recourse to public funds.

In the present case, the First-tier Tribunal Judge’s findings were that the appellant, if returned to Kenya, could be financially supported by her United Kingdom family. It is clear that the family would have the requisite financial means to buy care services for the appellant in Kenya .

It is time to stand back and see where we have reached. None of the criticisms advanced by the appellant of Judge Eldridge’s decision disclose an error of law on his part. The judge was entitled to find that the appellant did not meet the requirements of the Immigration Rules. In terms of paragraph 276ADE, he was entitled to find that there were not “very significant obstacles” to the appellant’s integration into Kenya, where she had l ived much of her life.

So far as Article 8 was concerned, the judge made valid and entirely sustainable findings regarding the position of the appellant’s grandchildren, properly applying section 55 of the 2009 Act.

The judge correctly concluded that little weight could be given to the appellant’s private life, established whilst the appellant had been in the United Kingdom unlawfully. The appellant had abused immigration control s by overstaying the period of entry clearance given to her. After becoming appeal rights exhausted in respect of the Asylum and Immigration Tribunal ’s decision of January 2010, the appellant ought to have embarked. Instead, she and her family ha ve done their best to defy immigration controls.

In all the circumstances, the First-tier Tribunal Judge was entitled to conclude that removal of the appellant from the United Kingdom would not violate the United Kingdom’s responsibilities under Article 8 of the ECHR, whether to the appellant or anybody else .