England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Senior Immigration Judge McGeachy

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/07/2012

Lord Justice Stanley Burnton :

Introduction

1. This is an appeal by Adelusi Adedoyin against the determination of Senior Immigration Judge McGeachy sitting in the Upper Tribunal (Immigration and Asylum Chamber) allowing the Secretary of State's appeal against the determination of Immigration Judge Blair-Gould sitting in the First Tier Tribunal (Immigration and Asylum Chamber), who had allowed her appeal against the Secretary of State's decision refusing to grant her leave to remain in this country.
2. Permission to appeal was given by the Master of the Rolls on the basis that it was arguable that the Upper Tribunal had erred in finding that the determination of the First Tier Tribunal was marred by a material error of law, and with a view to the Court giving guidance on this question: How critically should this Court consider a determination of the Upper Tribunal allowing an appeal against a determination of the First Tier Tribunal?
3. At the conclusion of the parties' submissions we dismissed the appeal, and said that we should give our reasons in writing. These are my reasons for dismissing the appeal.

The facts

4. The appellant is a Nigerian national born on 7 February 1987 in Nigeria where she grew up and lived to adulthood. In 1991 her mother, Mrs Adelusi, left the appellant in Nigeria (aged 4) and came to the UK. Later, in 1994 Mrs Adelusi brought her son Barnabas (born 24 January 1990) to the UK. The appellant remained in Nigeria. Barnabas has been diagnosed with sickle cell anaemia. The appellant's father died either on 1 August 2003 (according to the appellant's evidence) or in 2000 (according to Mrs Adelusi's evidence). Both the appellant's mother and her brother are now British Citizens. The appellant has a step-sister and a step-brother.
5. In 2005 the appellant sought leave to enter as a student. It was explicit in her application that she intended to return to Nigeria on the completion of her course. In a visa interview on 22 April 2005, the appellant stated that after her father's death she went to boarding school and stayed with a friend of her mother in the holidays. Asked whether she had any family in Nigeria, she said only that she had a stepbrother there.
6. The appellant arrived in the UK on 11 October 2006 as an adult having obtained entry clearance as a student valid until 31 October 2007. She was granted extensions as a student until 31 October 2010.
7. By her solicitors' letter dated 29 October 2010 and its enclosure, the appellant applied for further leave to remain "to continue her studies" and in the alternative asked for discretionary leave to remain on Article 8 ECHR grounds. The bases of her application were mutually inconsistent: leave to remain as a student would be appropriate if she intended to return to Nigeria after completion of her course of study, whereas an Article 8 application would normally imply an intention or need to remain in this country indefinitely. The only facts relied upon in support of her Article 8 claim were in the third paragraph of the letter:

"… our client lost her Aunt on 15 March 2010 (Cecilia Adedeji) after a protracted illness. It was late Ms Cecilia Adedeji who brought our client up as her mother lives in the UK. Our client is psychologically traumatised as a result of the incident. Our client was unable to proceed with her studies during that period as a result of the irreplaceable loss. Our client therefore seeks extension of leave to remain in the UK to continue her studies. Our client depends only on her mother for accommodation and maintenance. Our client has no other family member in Nigeria."

8. The appellant's application was refused by the Secretary of State in a somewhat incoherent decision dated 28 November 2010.

The determination of the First Tier Tribunal

9. The first mention of Barnabas of any relevance to the appellant's Article 8 claim was made in her grounds of appeal from the Secretary of State's decision. Paragraph 9 stated:

"… the appellant enjoys family life with her mother and her 2 sisters who are British citizens and the appellant has no other family member in Nigeria. The mother is in lawful employment as a nurse and the sisters in school, the appellant is also looking after her sickle cell sister and they are therefore no reasonably expected to travel with her. The Secretary of State has failed to consider the effect that the removal will have on other members of the family."

The reference to the sickle cell sister must have been to Barnabas.

10. Both the appellant and her mother gave oral evidence before the First Tier Tribunal. Mrs Adelusi was working as a district nurse. In her witness statement dated 2 February 2011 she said:

"3. The appellant came to the UK in 2006 as a student. I am her sponsor. She is living with me and I am responsible for her maintenance and her upkeep. The appellant has no other source of income.

4. The death of my sister has devastating effect on the appellant to the extent that she became withdrawn and cannot continue with her studies.

5. The appellant has been caring for her brother since she arrived in the UK"

11. Barnabas had made a witness statement, but did not give evidence orally. In his witness statement, he said:

"3. I am suffering from Sickle Cell Anemia and many times I was in crisis of the sickness. My sister (the appellant) has played and is playing significant roles in my life by looking after and caring for me during this crisis.

4. We have developed mutual and emotional ties as a family unit-there is interdependency.

5. My sister has no other family members in Nigeria."

12. In her oral evidence, Mrs Adelusi described Barnabas' parlous condition, which required numerous hospital admissions. At paragraph 30 of his determination, the Immigration Judge said this:

"[Mrs Adelusi] said that when the appellant was going to college she herself would have to wait for the appellant to come back from college when Barnabas became ill before should could go to work. When he was ill he could not move. Heat or cold made him ill if he went out. He could be left alone for a few hours when he was well enough but otherwise it would depend."

13. At paragraph 33 of his determination, the Immigration Judge said that the evidence relating to "the members of the family and Barnabas' sickle cell anaemia is supported by documents and I accept it. However, some of the other evidence I was given was, in my opinion, plainly untrue".
14. The appellant gave as the reason she had not completed her studies that, as stated in her solicitors' letter, when her aunt Mrs Cecilia Adediji died she "was devastated and psychologically traumatised to the extent that I can no longer continue with my studies". The Immigration Judge gave compelling reasons for rejecting this reason for her having given up her studies, and at paragraph found that the only reasonable explanation was that for some time she had been working and not studying in the UK.
15. The only basis for the Immigration Judge's decision in favour of the appellant was his finding as to the part she played in caring for her brother. He said:

"59. On the other hand, her brother is suffering from a serious disability, and I think it reasonable to accept that the appellant must have been important to both him and his mother in looking after him. Her mother is working on a full-time basis and I accept her evidence that when the appellant was studying, if the appellant was not at home she, Mrs Adelusi, had to come home to look after him when he became disabled as a result of his illness.

60. It is clear that the appellant's mother, brother and sister could not be expected to move to Nigeria if the appellant had to return, and that in these circumstances there would be a serious and probably irrevocable breach of their family life together. It could only be maintained by post, telephone, e-mails or occasional visits. Although this was no doubt the result of the appellant's mother not bringing her to the United Kingdom earlier, the fact is that the appellant has been living here for over four years now.

61. It seems to me that the issue of proportionality is finely balanced, and that different judges would come to different conclusions. I have however come to the opinion that, having regard to Barnabas' illness and the great need for the appellant to help look after him at home, the breach of the Article 8 rights of the appellant and her family which would follow from the refusal of her application for further leave to remain, with its consequent obligation on her to leave the United Kingdom and liability for enforced removal, is disproportionate to the requirement of the maintenance of immigration control."

The application for permission to appeal to the Upper Tribunal

16. The Secretary of State applied for permission to appeal on the ground that the Immigration Judge had failed to give adequate or any reasons for his finding that the appellant's Article 8 rights would be breached if she were required to return to Nigeria. The grounds of appeal focused on the inconsistency between the finding that the appellant had not been studying for some time and the Immigration Judge's acceptance that "when the appellant was going to college [Mrs Adelusi] would have to wait for the appellant to come back from college when Barnabas became ill before she could go to work".
17. Permission to appeal was granted by Immigration Judge R C Campbell on 7 March 2011. In his decision, he stated:

"4. The determination contains no clear assessment of the level of care the appellant provides, or how the appellant is able to provide any substantial level of care or support if she has been working and not studying. As the respondent contends in the grounds, this failure is, arguably, highly material in the context of the assessment of the proportionality of the adverse immigration decision."

The Determination of the Upper Tribunal

18. The Senior Immigration Judge reviewed the determination of the Immigration Judge and reminded himself that the question for him was not whether he agreed with the determination of the Immigration Judge but whether the Immigration Judge had reached a decision that was not open to him. He cited paragraph 40 of the judgment of Carnwath LJ (as he then was) in Mukarkar [2006] EWCA Civ 1045, of which it is sufficient to cite that "The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law …" The Senior Immigration Judge continued:

"35. I note moreover that there are successive judgments of the Court of Appeal which assert that it is inappropriate to interfere with conclusions of an Immigration Judge when those conclusions are open to him."

19. The Senior Immigration Judge's conclusion on the Immigration Judge's determination is set out in paragraph 36:

"36. When considering the conclusions of Immigration Judge Blair Gould the grounds of appeal pose a straightforward question – whether or not he has taken cognisance of all the evidence before him, including his own findings and given sufficient reasons for his decision. Giving insufficient reasons for a decision is to make a material error of law when the defect in the reasons create a genuine doubt as to whether a significant issue has been properly addressed. I do not consider that Immigration Judger Blair Gould gave sufficient reasons for his decision given his findings of fact that the appellant was not credible regarding the basic facts of how much work she was undertaking, her studies and her reasons for giving up those studies. Clearly, moreover, he found that the appellant's mother's evidence was not credible – he considered that she was not telling the truth in, for example, the issue of whether or not she had gone to her sister's funeral, and her claim that the appellant had suffered trauma after her aunt's death. Moreover, he simply did not have before him sufficient evidence to reach the conclusion that the appellant's brother required the appellant's care. Medical evidence was non-existent apart from the one hospital report. I can only conclude that the Immigration Judge reached conclusions that were not only not supported by the evidence before him but which were not reconciled with his own conclusions that the appellant and her mother were not reliable witnesses. The conclusions were therefore perverse and therefore there is a material error of law in the determination. "

20. The Senior Immigration Judge's conclusions on the appellant's Article 8 claim were as follows:

"40. There are a large number of factors which should be taken into consideration in considering the proportionality of the removal of the appellant. The first is that she does not qualify under the Immigration Rules as either the dependant of her mother or as a student. These were findings of the Immigration Judge which were clearly open to him. No evidence was put forward to show that the appellant, on return to Nigeria would be living alone in the most exceptional compassionate circumstances and indeed there was very little evidence that she had studied here. What evidence there is is that the appellant came to Britain and did not intend to return. There was no evidence that the appellant had ever considered that her studies would benefit her on return to Nigeria or indeed in any career. I consider that the appellant was dishonest on entry when she claimed that she was coming here for the purpose of studying and indeed I consider that her evidence given to the Immigration Judge, contrasted with that of her mother clearly shows that they were both happy to dissemble when giving evidence.

41. I then come to the issue of the care which the appellant claims that she is able to give to her brother. As I have said, I consider that her evidence and that of her mother is tainted. That issue could have been overcome as indeed Mr Saunders accepted in submissions, had there been a proper medical/social report relating to the appellant's brother's illness. However none had been provided. This is all the more surprising given that Immigration Judge Campbell, when granting permission to appeal specifically indicated that such a report would be of use to the appellant. I therefore cannot accept that the appellant is providing the services to her brother that she claims. While I accept that he suffers from sickle cell anaemia and indeed that he has been to hospital on "ten occasions" in one year there is nothing to indicate that she has to look after him to the extent that she has claimed, several times a week. If that were the case it would be quite easy to have obtained a report from the appellant's brother's doctor. Moreover, the appellant was vague about how much work she undertakes and indeed she and her mother gave conflicting evidence.

42. Whilst I conclude that the appellant and her mother, and no doubt her brother and sister are happy that they all live together here, she is not playing a vital role in the care of her brother. Even if she were undertaking some care for him here there appears to be no reason why that care could not be given by another – it is relevant, I consider that the appellant's brother in not entitled to either a carer's allowance or disability allowance and of course he has worked in the past.

43. I therefore do not consider that the assistance which the appellant can give in the care of her brother is a major factor in the assessment of the proportionality of her removal. I would emphasise that I do take into account the interests of other members of the family. I note the terms of the judgment of the House of Lords in Beoku-Betts [2008] UKHL 39, however the reality is that the family circumstances in that case were totally different from those of this appellant, as indeed were the circumstances of Mr Beoku-Betts himself. He had fled from possible persecution in Sierra Leone and indeed had made a claim for asylum here. His was a family that had to relocate in its entirety because of the civil war. The reality in this case is that appellant's mother came to Britain in 1991 leaving the appellant in Nigeria and did not seek to bring her here as a dependant even after the appellant's father had died. Theirs is simply not the close bond that existed among the members of the Beoku-Betts' family."

The contentions of the parties

21. For the appellant, Mr Banji submitted that the Senior Immigration Judge had been wrong to find that the determination of the Immigration Judge was insufficiently reasoned. The Immigration Judge had been entitled to accept parts of the evidence given by and on behalf of the appellant, while rejecting other parts. The Immigration Judge's conclusions as to Barnabas' need for the appellant's care, albeit made on "the barest evidence" or "marginal evidence", as he put it, was made by an expert tribunal, was sustainable, and should have been respected by the Senior Immigration Judge.
22. For the respondent, Ms Anderson submitted that the Senior Immigration Judge's decision was correct. He had properly directed himself as to the caution to be exercised when considering whether to interfere with a determination of the First Tier Tribunal on the ground of lack of reasons. The determination of the Immigration Judge was unsustainable. There had been no or wholly inadequate evidence to support the finding that Barnabas relied on the appellant, and the Immigration Judge's reasons contained the unexplained contradiction to which the Secretary of State had referred in her grounds of appeal to the Upper Tribunal. Lastly, she submitted that a comparison of this case with cases such as to Bensaid v UK (2001) 33 EHRR 205 (longstanding paranoid schizophrenia and suicide risk), and N v UK (2008) 47 EHRR 39 (AIDS) led to the conclusion that the appellant's Article 8 claim could not succeed.
23. On the general question of principle to which the Master of the Rolls had referred when giving permission to appeal, Ms Anderson submitted that the Court of Appeal should respect the decision of the Upper Tribunal whether or not to interfere with a determination of the First Tier Tribunal, provided the decision of the Upper Tribunal disclosed no error of law on its part.

Discussion

24. In my judgment, the determination of the Immigration Judge was indeed unsustainable. The finding that the appellant would care for her brother when she returned from college was inconsistent with the finding that she had for some time not been studying but working. That inconsistency was not explained. Moreover, there was no evidence to support any finding as to the availability of the appellant to care for her brother, given, as the Immigration Judge found, that she had been working. The Immigration Judge had no evidence as to whether she was working full time, or part time, or at nights or during the day, or what were her hours of work. The lack of that evidence was entirely due to the appellant's lack of candour. The finding in paragraph 61 that there was "the great need for the appellant to look after [her brother] at home" was not supported by the witness statements of Mrs Adelusi or of Barnabas, or by any oral evidence to which the Immigration Judge referred.
25. I entirely accept that it is open to a judge to reject some evidence as deliberately false, but to accept other evidence of the same witness as true. I would however expect a judge in such a case to give some explanation for his acceptance of part of the evidence. In the present case, there was independent evidence of Barnabas' sickle cell anaemia, but it was the question whether the appellant was caring for him, and if so when, and what alternatives were available, that had to be addressed, and they were not. It is at least curious too that Barnabas' need for the appellant was not referred to in the solicitors' letter of 29 October 2010, and was referred to in her grounds of appeal from the Secretary of State's decision only as indicating that Barnabas and his mother could not reasonably be expected to go to Nigeria with the appellant.
26. In these circumstances, the Senior Immigration Judge was right to find that the Immigration Judge had made a material error of law. But more importantly, the Senior Immigration Judge correctly directed himself as to the correct approach of an appellate tribunal to a decision of a lower tribunal, and came to a conclusion that was open to him. He made no material error of law in finding such an error on the part of the Immigration Judge.
27. In my judgment, the Senior Immigration Judge's decision on Article 8, set out in paragraphs 40 and following of his determination, is unassailable. Indeed, I did not understand Mr Bhanji to suggest that, if the Senior Immigration Judge was entitled to interfere with the determination of the Immigration Judge, he was not entitled to decide as he did.
28. It followed that the appeal had to be dismissed. It is therefore unnecessary to consider Ms Anderson's submission that the appellant's Article 8 claim could not have succeeded even if she had been shown to be caring for her brother to a substantial extent.

The question of principle

29. This was not a case in which the determination of the First Tier Tribunal could sensibly have been sustained, and in consequence we did not hear argument on the question of principle raised by the Master of the Rolls. However, I consider that certain propositions can be stated. The appeal to this Court is against the determination of the Upper Tribunal. It is only if that determination contains an error of law that this Court can allow an appeal from it. If the Upper Tribunal has properly directed itself as to its approach to the determination of the First Tier Tribunal, and has arrived at a conclusion that was open to it, the determination of the Upper Tribunal contains no material error of law, even if this Court might have been more (or less) generous in its approach to the determination of the First Tier Tribunal. Secondly, in such a case, it is difficult to see how the second appeal test could be satisfied.

Lord Justice Elias:

30. I agree that the appeal should be dismissed, for the reasons given by Stanley Burnton LJ. This is one of those relatively exceptional cases where the Upper Tribunal was justified in setting aside the decision of the First Tier Tribunal even though the latter had properly directed itself in law. As decisions of this court in cases such as Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045 and MT (Zimbabwe) v Secretary of State for the Home Department [2007] EWCA Civ 455 have emphasised, First Tier Tribunals have a generous ambit of discretion when balancing the various factors which go into an Article 8 determination. But the evidence must be capable of justifying the conclusion. In this case the critical finding was that Barnabas had a "great need" for the appellant to help look after him; but for that fact the Article 8 case was bound to fail, as Mr Bhanji, counsel for the appellant, realistically accepted. In my judgment the findings of fact made by the Immigration Judge fail to sustain that conclusion, for the reasons given by Stanley Burnton LJ. In particular, the finding that the appellant had been working and not studying was inconsistent with the finding that she would look after her brother when she returned from college.
31. Although the appeal was described as a reasons challenge – and this was in part the basis for the Upper Tribunal finding an error of law - that is in my judgment a potentially misleading characterisation of the error in the First Tier Tribunal decision. The appeal was primarily a perversity challenge: the contention was that the judge made the critical finding which was not open to a reasonable judge on the evidence before him. In so far as there could be said to have been a reasons challenge, it was simply that if (as seems highly unlikely) there was other evidence capable of sustaining the immigration judge's conclusion on the critical finding, the Immigration Judge would have had to identify, albeit briefly, what it was. In short, the primary case was that the critical finding was unsustainable on the evidence; the secondary case was that if there was evidence to sustain it, the judge had not condescended to identify what it was. Either way there was an error of law vitiating the decision. Thereafter the Upper Tribunal Judge's conclusion that it was not disproportionate to return the appellant to Nigeria is unassailable.

Lord Justice Maurice Kay:

32. I agree that this appeal should be dismissed for the reasons given by Stanley Burnton LJ. I also agree with the judgment of Elias LJ.