ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
The Royal Courts of Justice
B e f o r e :
(Vice-President of the Court of Appeal)
LORD JUSTICE UNDERHILL
LADY JUSTICE ASPLIN
| Jose Herrera
|- and -
The Secretary of State for the Home Department
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(Official Shorthand Writers to the Court)
Mr Andrew Byass (instructed by Government Legal Department) appeared on behalf of the Respondent
Crown Copyright ©
LORD JUSTICE UNDERHILL:
"… is aged 18 years or above, has lived continuously in the UK for less than 20 years discounting any period of imprisonment, but has no ties including social, cultural or family, with the country to which he would have to go if required to leave the UK".
It is common ground that that version is the material one for our purposes. However, it is relevant to the issues before us that with effect from a date only three weeks later –specifically, from 6 June 2014 – the wording was changed so as to read:
"… is aged 18 years or above, has lived continuously in the UK for less than 20 years discounting any period of imprisonment, but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK".
The requirement of "very significant obstacles to the applicant's integration" on return is not identical in effect to the previous requirement of "no ties", and will in some circumstances present a higher hurdle to applicants.
"… In my view the Upper Tribunal in Ogundimu correctly construed the relevant phrase regarding 'ties' in paragraphs 276 ADE (vi) and 399A, as importing a general evaluative judgment ('a rounded assessment of all the relevant circumstances') as part of an 'exacting test' to focus on the question of whether there is 'a continued connection to life' in the country in question amounting to ties 'that could result in support to the appellant in the event of his return there', so that the consequences for an applicant in trying to re-establish themselves in their country of origin would not be 'unjustifiably harsh'."
"35. I am satisfied that since he last entered the UK in 1989 the Appellant has achieved a very high level of integration into life here and the letters from the voluntary organisations with whom he has interacted all attest to his personal qualities, describing him as a much respected and admired member of his local community.
36. He has been out of Argentina for about 16 years. He never married and his parents are deceased. He owns no property there and the reality I find is that he no longer has any significant connection to that country. Whilst he has 2 sisters there, he has not seen them since he left Argentina. I accept his evidence of infrequent contact and that he would not be able to turn to his sisters for support if returned.
37. I find that he no longer has any meaningful ties whether social, cultural or familial to his country of origin.
38. Given the length of time he has been out of Argentina, his age and his mental health problems I also find that there would be very significant obstacles to his integration into life there. Specifically, I find that he would have very significant difficulty in accessing the medical and other support services he needs to manage his condition without third-party support and that he would also be significantly disadvantaged in the workplace. I consider that his removal is likely to be detrimental to his mental health and that there is a real risk that he will end up isolated and homeless."
"It is respectfully submitted that the tribunal has failed to provide adequate reasons why the appellant would face very significant obstacles to his integration into Argentina under paragraph 276 ADE (vi), and why circumstances would lead to an unjustifiably harsh outcome for him if removed to Argentina. It is submitted that the tribunal's findings are wholly inadequate."
The rest of the grounds, which are very discursive, are to essentially the same effect, referring more than once to "very significant obstacles" to integration and to paragraph 38. There is no reference to the "no ties" test or to any specific part of paragraphs 36 to 37. That is, of course, focusing on the wrong question. What seems likely is that the caseworker drafting the grounds was thinking only in terms of the new version of the rule and had overlooked the fact that this case was governed by its predecessor: that is, alas, an all too frequent phenomenon in this area of the law.
"The crucial issue is whether, having lived this lesser period [i.e. less than the requisite 20 years] he can demonstrate he has no ties, including social, cultural or family with Argentina which would mean he could not return."
That is clearly a reference to the correct, older, version of the rule. He then, also at paragraph 17, summarises the effect of Ogundimu. At paragraph 18 he summarises the factors relied on by Judge Hembrough at paragraph 36. He notes at paragraph 19 the sympathy that the Judge evidently felt with the Appellant, but he went on to say that he had "not adequately considered the high threshold imposed by paragraph 276ADE (1)." In the following paragraphs – that is to say, paragraphs 20 to 24 – he reviews the evidence and the FTT's findings on the Appellant's continuing contacts in Argentina and the possibilities of obtaining employment if returned and about his mental health. He concludes at paragraph 25:
"My conclusion is that the judge has not adequately explained how the appellant has demonstrated very significant obstacles to his reintegration in Argentina. It would appear the judge was unduly swayed by sympathy for the appellant's plight, his integration into the United Kingdom and his charitable work, rather than focusing upon the high threshold established in the legislation."
(1) that what the UT had at paragraph 25 of the decision overturned the FTT's finding that there were very significant obstacles to the Appellant's reintegration in Argentina if returned, which was not the relevant question under the rule, and had found no fault with the its decision on the only relevant question, namely whether he had remaining ties to Argentina; and
(2) that, even if the UT's decision could be interpreted as being directed, also or instead, to the "no ties" finding, no legal flaw in that finding had been demonstrated.
Lady Justice Asplin:
Lady Justice Gloster:
Order: Appeal allowed.