Sandrajorthy Rajendran v The Secretary of State for the Home Department

1. This case raises a particular issue about the scope and ambit of the “little weight” considerations to be found in s117 B(4(a)) and (5) of the Nationality, Immigration and Asylum Act 2002 , the full text of which is set out in the Appendix. 2. The appellant is a 62 year old citizen of Canada who is a widow and is blind. She had come to the UK as a visitor from 4 August 2013 to 30 January 2014. On 31 January 2014 she returned to Canada . On 19 February 2014 s he returned to the UK . She was questioned by immigration officers and admitted for 3 months only . On 15 May 2014 her solicitors applied on her behalf for leave to remain in the UK on the basis of her private life . In the UK she has a younger daughter, and a son-in-law, the latter being a British citizen who had lived in the UK since September 2005 having qualified as a software engineer. Her younger daughter , like the appellant, is a Canadian citizen. Her younger daughter has leave to remain in the UK until 4 March

2016. The couple now have a son born in August 2013.

3. The appellant had migrated from Sri Lanka to British Columbia in Canada with her younger daughter in October 2007. In Canada the appellant has another older daughter , who has a son born in December 2007 who has be e n diagnosed in 2009 with autism spectrum disorder. The appellant and her younger daughter originally lived with her older daughter and her husband in Vancouver , British Columbia . In November 2009 they moved out and rented a room in a house in the same area . After her younger daughter married a man who lived in the UK , she left in August 2012 to join him there. T he appellant then lived on her own . Because of her disability the family arranged for a carer to come and attend to her some of the time. It was said that language problems meant it was not possible for that care to be effective . She was said to have had difficulties looking after her day to day affairs, requiring long-term personal care as a result of her disability . Since the departure of her younger daughter from Canada , she was said to have suffered depression and loneliness leading to deterioration in her medical condition.

4. In refusing the appellant’s application on 14 July 2014 the respondent stated that the appellant did not qualify under paragraph 276ADE(1) of the Immigration Rules, noting, inter alia , that since she had family members in Canada it could not be said she had lost all ties with that country.

5. The respondent also considered whether there were any exceptional circumstances warranting a grant of leave on Article 8 grounds outside the Rules. The respondent noted that t he appellant claimed to be a dependent on her family members in the UK . The respondent also noted that she was said to be suffering from various medical conditions, but considered that treatment for these would be available for her in her home country and that, if she was seeking to come as a dependent , she could return to her home country and apply from there for entry clearance. The appellant appealed , maintaining that she had no close relation s in Canada to provide the required level of support and care for her whereas by contrast she had a strong family life ties with her younger daughter and her family in the UK .

6. The appellant appealed. Following a hearing which took place on 17 July 2015, First tier Tribunal (FtT) Judge Seelhoff dismiss ed the appeal . I n a decision sent on 27 July 2015 t he judge noted that the respondent had chosen not to be represented and that it was just to proceed with the case in the respondent’s absence. He noted that counsel for the appellant, Mr Richardson, “sensibly accepted that there is adequate health and social services care in Canada …and that the case is solely based on Article 8 family life rights”.

7. The appellant gave evidence during which she said that when in Canada her older daughter who was settled in that country did come to see her to take her to the doctor but did not see her every week as she (the daughter) was suffering from depression and had problems caring for h er autistic son. The appellant said that the decision that she should stay in the UK had only been taken after she had returned to the UK on 19 February 2014. Her younger daughter also gave evidence in the course of which she said that she had contacted social services in Canada for help with her mother and had been told they could not help as she had been sponsored by her older sister. The family had looked into residential care homes in Canada but had not fo u nd anything suitable because of the language and cultural problems . She said that h e r older sister lived some 20 minutes walking distance from the appellant and had met the appellant at the airport last time and also driven her to the airport on the occasion of her last departure from Canada to the UK . The judge also had before him documentary evidence which included a number of doctor’s letters including a GP letter dated 6 February 2015 confirming that the appellant was blind and suffering from anxiety with depression, hypertension and type II diabetes and was completely dependent on her younger daughter’s assistance for her day-to-day activities and that her diabetes is poorly controlled. 8 . The judge noted that he had only been asked to consider the claim based on Article 8 outside the Rules but that reviewing the requirements under the rules relating to adult dependent relatives contained in Appendix FM , the fact that it had been conceded that care was available in Canada meant that the application had to f a il and not only be cause the appellant had been ad mitted as a visitor and was not eligible to switch categories.

9. As regards Article 8 outside the Rules, the judge cited case law governing how to approach Article 8 claims outside the Rules, including R (Nagre) v SSHD [2013] EWHC 720 (Admin) and added that it was “also necessary to have regard to a number of mandatory factors contained in s.117 B of the Nationality, Immigration and Asylum Act 2002 as amended ” .

10. Th e judge said he accepted the appellant has a family life in the UK with her younger daughter, son -in-law and grandson and that the decision refusing leave to remain amounted to an interference with that right . In this regard he noted that her younger daughter and son-in-law appeared to have taken responsibility for the appellant’s care, at least in the context of h e r most recent period of stay in the UK : see [34] and [36]. At [34] the judge said that: “I accept that family life between children and adult dependents relatives can engage Article 8 in special circumstances and in a case like this where there has clearly been a caring and dependent relationship…. ”

11. However, when assessing the proportionality of the decision under challenge, the judge considered there were several ( interrelated) factors that made the refusal of leave proportionate. First, the appellant did not meet the requirements of the Immigration Rules and there was a public interest in persons in the appellant’s posit i on not being eligible for leave to remain in the UK where there was adequate care available in their country of nationality ([39]). Second, the family had not been entirely forthcoming about the history of the appellant in Canada and the circumstances of her coming to the UK on a second occasion. At [35] the judge said that : “I consider it significant that the family thought the Appellant entitled to return to the UK for a further six months within two weeks of leaving the UK after a six month visa. The family clearly considered it acceptable for visit visas to be used as a way of the Appellant effectively living in the UK and it was only when this was challenged by an entry clearance office on admitting the Appellant for three months that the Appellant sought a longer period of leave.”

12. The lack of candour regarding the appellant’s visit also meant there was a further public interest consideration : “I also consider that there is public interest in preserving the integrity of the immigration system and I do believe that there has been a degree of knowing abuse in this application which is evident from the timing of the decisions, the apparent belief that it was acceptable for the Appellant to spend nearly a year in the UK as a visitor in a 12 month period providing she had left in the middle, and from the inaccurate information that apparently found its way to the Appellant’s Doctor’s letter” ([39] .

13. Third, linked to this, the judge was not satisfied that the daughter in Canada took as little responsibility for her mother as was claimed. In this regard the judge noted that the daughter in Canada was responsible for taking the appellant to and from the airport twice in two weeks in 2014 and was involved in the decision for the appellant to return to the UK . As a result the judge considered that the real situation would be that : “ … in Canada the Appellant will have a comparable level of family life with the daughter, grandson and son-in-law living there which mirrors the family life in the UK almost exactly . Further, without evidence to specifically show that the Appellant is not entitled to health care or social support I find that many of her care needs could be addressed in Canada which would make the experience of leaving the UK less traumatic. ”

14. A fourth factor noted by the judge concerned “the level of family life and dependency that has been established in the UK ”. This, the judge said at [38] , “has to be considered in the context of section 117 B of the 2002 Act : “Whilst I have accepted factually a level of dependency has arisen I note that this has arisen at a time when the Appellant’s leave is properly regarded as precarious as she was here as a visitor and also because I believe that the intention was for the Appellant to effectively live here albeit only with status as a visitor. Accordingly I am required to attach less weight to the family life in the UK .”

15. F ifth, the judge considered at [40] that although the appellant’s family in the UK have significant means with her son-in-law earning £45,000 a year (which was “to the family’s credit” ) : “I am not satisfied that they have shown that they have the means necessary to cover all medical costs for the remainder of her life. I consider that there is a significant chance that she will need to have recourse to public funds in the future and there is a potential risk to the public purse. “ The appellant’s grounds of appeal 16 . The grounds of appeal mount two principal challenges to the judge’s decision.

17. The first challenge focuses on the judge’s assessment of the content of the appellant’s family life ties in Canada and the UK respectively. It was argued that in finding that in Canada the appellant would enjoy “a comparable level of family life”, the judge ignored the evidence of the daughter in Canada ’s inability to care for her mother due to having a severely autistic son. It was argued that the fact that the daughter in Canada was able to drive her mother to and from the airport was not a sound basis for concluding that she would be able to provide the required level of care on a long term basis. In developing this point , Mr Davidson argued that since in Canada the appellant was living on her own the judge was not comparing like with like. The appellant’s family life in the UK had far greater content and substance. Further, it was the appellant’s evidence and that of her witnesses that her family had not been able to access social service care in Canada , so although there may be a health and care system there , she could not access it. The above finding was also said to ignore the impact that the appellant’s proposed removal would have on the human rights of her family in the UK “and in particular the fact that they would not have a comparable level of family life with the appellant if she were removed from the country ( Beoku-Betts [2008] UKHL 39 ) ” . The judge was also said to have e rred in not recognising that any relocation of the appellant’s family in the UK to Canada would be unreasonable because the appellant’s grandson was a British citizen. The failure to conduct such an assessment was “ consequently a highly material error of law”.

18. The second main ground takes issue with the judge’s approach to s.117 B of the 2002 Act . It is submitted that the judg e erred in stating at [38] that he was obliged under s.117 B of the 2002 to attach less weight to the appellant’s family life with her UK-based family because it was established at a time when her immigration status was precarious. That was said to be erroneous because s.117 B(4) and (5) only required “little weight” to be given in two contexts only: where there was a private life ( s.117 B(4)(a), s117 B(5)); and where there was a relationship with a qualifying partner ( s.117 B(4)(b)). The precariousness criteria applied only to private life cases and not to family life cases and hence “the judge was wrong to use it to undermine the value of a family life that was developed during lawful residence in the UK ”. Mr Davidson sought to elaborate this ground by pointing out that since the private life provisions of the Immigration Rules accepted that a person who had lived in the UK for 20 years could qualify on the basis of length of residence , the “little weight” provisions found in s.117 B could not be an absolute rule. 19 . In response to the se grounds , Mr Bramble maintained that the judge was entitled to arrive at the findings of fact which underlay his assessment of the appellant’s likely circumstances on return to Canada and t he judge clearly did not accept that her daughter there played the very minimal role portrayed. The judge did not ignore the appellant’s circumstances ; it was just that he assessed them to be different from what had been claimed; the challenge to this part of the judge’s findings was really no more than a disagreement with the facts as found. As regards the judge’s reliance on s.117 B considerations , even if he was wrong to rely on the s e, because they did not cover family life, the considerations set out in that section were not exhaustive and it was an undoubted fact that the appellant’s immigration status in the UK was precarious . Relevant case law 20 . In Kaur (visit appeals; Article 8 ) [2015] UKUT 487 (IAC) ) the Upper Tribunal stated that: “ In visit appeals the Article 8 decision on an appeal cannot be made in a vacuum. Whilst judges only have jurisdiction to decide whether the decision is unlawful under s.6 of the Human Rights Act 1998 (or shows unlawful discrimination) (see Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC ) and Adjei (visit visas – Article 8) [2015] UKUT 261 (IAC) ), the starting-point for deciding that must be the state of the evidence about the appellant’s ability to meet the requirements of paragraph 41 of the immigration rules. Unless an appellant can show that there are individual interests at stake covered by Article 8 “of a particularly pressing nature” so as to give rise to a “strong claim that compelling circumstances may exist to justify the grant of LTE [Leave to Enter] outside the rules”: (see SS (Congo) [2015] EWCA Civ 387 at [40] and [56]) he or she is exceedingly unlikely to succeed. That proposition must also hold good in visitor appeals. ” 21 . As regards s.117 A-D, there is now a considerable body of case law bearing on several key matters arising in this appeal. As noted at the outset, t he full text of ss.117 A-D is set out in an Appendix. 22 . As regards the meaning and effect of the “little weight ” provisions of s.117 B(4)-(5), the Upper Tribunal stated in Deelah and others ( section 117 B - ambit ) (Rev 1) [2015] UKUT 515 (IAC) that: “ Section 117 B(4) and (5) of the 2002 Act , which instruct Judges to attribute "little weight" to the considerations specified therein, do not give rise to a constitutionally impermissible encroachment on the independent adjudicative function of the judiciary ”. 23 . In Treebhawon and others ( section 117 B(6) ) [2015] UKUT 674 (IAC) ) the Upper Tribunal said that: “The two " little weight " provisions of section 117 B do not readily satisfy the appellation of Parliamentary statements of the public interest, in view of the terms in which they are phrased and compared with the formulation of the public interest statements in subsections (2), (3) and (6). Furthermore, the two " little weight " provisions relate to matters which, in practice, are invoked by the person concerned, rather than the Secretary of State, namely a private life and/or a relationship formed with a qualifying partner during such person's sojourn in the United Kingdom . As noted in Deelah , at [21], the focus of these discrete statutory provisions is choices and decisions which have been made by the person or persons concerned in their lives and lifestyles. We consider that section 117 B(4) and (5) contain a recognition that the factors therein sound on the question of proportionality, where they arise , but are, by unambiguous Parliamentary direction, to be accorded little weight. We further consider that, properly construed, section 117 B(4) and (5) are not Parliamentary statements of the public interest. They are, rather, Parliamentary instructions to courts and tribunals, to be applied in the balancing exercise, that little weight should be given to the matters specified where relevant . Thus analysed, the function of the court or tribunal concerned is not simply to have regard to these factors, in cases where they arise. Rather, they must be considered and given little weight. This is in contrast with the classic public law case whereby the decision maker, having discharged the primary duty of identifying all relevant facts and considerations, is free to accord to these such weight as he rationally considers appropriate.” 24 . As regards the meaning of “ precarious in s.117 B(5) (“ Little weight is to be given to a private life established by a person at a time when the person’s immigration status is precarious ” ) , the Upper Tribunal said in AM ( S.117 B ) [2015] UKUT 260 (IAC) that: “ Parliament has now drawn a sharp distinction between any period of time during which a person has been in the UK “unlawfully”, and any period of time during which that person’s immigration status in the UK was merely “precarious”( AM ( S.117 B) [2015] UKUT 260 (IAC) ) . Those who at any given date held a precarious immigration status must have held at that date an otherwise lawful grant of leave to enter or to remain. A person’s immigration status is “precarious” if their continued presence in the UK will be dependent upon their obtaining a further grant of leave. In some circumstances it may also be that even a person with indefinite leave to remain, or a person who has obtained citizenship, enjoys a status that is “precarious” either because that status is revocable by the Secretary of State as a result of their deception, or because of their criminal conduct. In such circumstances the person will be well aware that he has imperilled his status and cannot viably claim thereafter that his status is other than precarious .” 25 . In Deelah the Upper Tribunal said that: “ The adjective "precarious" in section 117 B(5) of the 2002 Act does not contemplate only, and is not restricted to, temporary admission to the United Kingdom or a grant of leave to remain in a category which permits no expectation of a further grant .”

27. As regards the concept of “ private life”, the same Tribunal added that: “ A private life "established", in the wording and in the context of section 117 B(4) and (5) of the 2002 Act , is not to be construed as confined to the initiation, or creation, of the private life in question but extends to its continuation or development .”