United Kingdom Asylum and Immigration Tribunal

MA (Prove Destitution) Jamaica CG [2005] UKIAT 00013 (24 January 2005)

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 16 December 2004

Date Determination notified: 24 January 2005

Before

Mr J Perkins (Vice President)

Mr J H Eames

Between

 

MA	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant : Mr K Kuranche, from the Refugee Legal Centre For the respondent : Mr C Avery, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Jamaica. She was born on 10 April 1941 and so is now sixty-three years old. She appeals the decision of an Adjudicator, Mr L.J.R. Lobo, who in a determination promulgated on 5 February 2004 dismissed her appeal against the decision of the Secretary of State that removing her from the United Kingdom was not contrary to her rights under the European Convention on Human Rights.
2. The appellant entered the United Kingdom as a visitor on 11 July 1991. She had leave to enter for six months. On 3 December 1991 she applied, in time, to extend her stay. That application was refused on 3 March 1992 although she was granted an extension of stay for twenty-eight days. On 11 August 1993, that is some fifteen months after she was refused further permission to say, the appellant applied for asylum. Her asylum application was refused on 17 December 1996 and the appellant served with notice of the decision to make her the subject of a deportation order. The appellant appealed and the appeal was dismissed under 28 August 1998. She was given permissions to appeal to the Tribunal and the appeal to the Tribunal was dismissed don 23 March 2000. On 4 February 2002 she applied for leave to remain in the United Kingdom on the basis that removal would be in breach of her human rights. In a letter dated 31 July 2002 the Secretary of State explained his reasons for refusing the application. It is against that decision that the appellant appealed to the Adjudicator.
3. The appellant was given permission to appeal to the Tribunal because it was arguable that the Adjudicator was wrong to find removal proportionate to the proper purpose of enforcing immigration control.
4. At paragraph 18 of the determination the Adjudicator described the appellant as 'an elderly person who has difficulty in hearing'. The Adjudicator went on to say that the appellant had had some difficulty in understanding questions that were put to her. The Adjudicator accepted that the appellant had lost touch with her remaining brothers and sisters and with her daughter who still lives in the Caribbean. He said 'I accept that she does not know what will happen to her if she is returned to Jamaica and that she will not have a close involvement with her grandchildren'.
5. These findings have to be set in the context of the evidence before the Adjudicator. The appellant lives on her own in the United Kingdom. She sees her daughter most days and frequently acts as a babysitter for her very young grandchildren. It was her case that her main activity is 'being a grandmother'.
6. The Adjudicator found that the appellant enjoyed a private and family life in the United Kingdom. She was an active member of a church and an 'age club' mainly favoured by older people with links to the Caribbean.
7. We make these points because the findings at paragraph 18 of the determination, on their own, could be thought to suggest that the appellant was a person of great frailty, heavily dependent on the support of her family. That is not what the Adjudicator found.
8. We have the benefit of a skeleton argument from Mr Kuranche although we made it plain that this was to introduce us to his oral submissions. We would not regard it as an alternative to them.
9. It was not in doubt before the Adjudicator, or before us, that the appellant had established a protected private and family life by reason of her community and family ties and prolonged stay in the United Kingdom.
10. Much of the skeleton argument was a general outline of the appellant's understanding of the law. It did not help us very much. For practical purposes we find that the proper approach is clearly set out by Lord Bingham at paragraph 20 of his speech in the case of R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27. This paragraph is quite properly drawn to our attention in the skeleton argument. Lord Bingham said: 'Decisions taken pursuant to the lawful operation of immigration control would be proportionate in all save a small minority of exceptional case, identifiable only on a case by case basis.'
11. Mr Kuranche suggested that the appellant would be destitute in the event of her removal to Jamaica. This is a concerning allegation. We recognise, of course, that a person who faces destitution, or something approaching destitution, may well be entitled to say that her removal is disproportionate to the proper purpose of enforcing immigration control. However, if a person wants to make out that claim even though the standard of proof is a low one, it must be made out by clear evidence. The Adjudicator had before him some evidence from the appellant and her daughter supporting the claim that the appellant would be destitute but the claim was not explained or developed in any detail. We do not know from the evidence how the appellant has supported herself in the United Kingdom for all these years or what opportunity she has had, or taken, to build up capital. Mr Kuranche said that she has been maintained by state benefits. That may be right. We are satisfied Mr Kuranche advanced his instructions in good faith but there was no evidence about that and there was no evidence before the Adjudicator. In any event, is far too superficial to be a proper explanation of the appellant's maintenance over a period of many years.
12. We know from the evidence that the appellant has some land in Jamaica. It may not be worth very much but it is hard to think it has no value at all.
13. We are surprised that the appellant was described as 'an elderly woman'. As indicated above, she runs her own home and plays a useful part in the care of her grandchildren in the United Kingdom. It is not apparent to us why she could not be expected to find some light work in Jamaica. Neither do we have any evidence of the willingness and ability of her family in the United Kingdom to maintain her in the event of her return Jamaica.
14. Any suggestion that the Adjudicator should have concluded that the appellant would be destitute in the event of return to Jamaica is wholly unfounded. Appellants seeking to make points of that kind must prove their cases and do it in a way that shows that they have seriously addressed their minds to returning to their country of origin and have made proper enquiries about how they could establish themselves. If they fail to do that it will be most unusual for them to be able to show that they would be destitute in the even to return. Such research has not been done here.
15. We recognise, as did the Adjudicator, that the appellant would experience significant culture shock if she tried to re-establish herself in Jamaica at this stage in her life. It must be recognised that the extent of this culture shock would largely be a consequence of her own deeds. She has lived in the United Kingdom since July 1991. At no time during this long stay has she had any proper basis for thinking that she had any secure status in the United Kingdom and it is not suggested that she did.
16. This case does not have any of the exceptionally compelling compassionate features that would be necessary to show that removal would be disproportionate to the proper purpose of enforcing immigration control.
17. There is no error of law by the Adjudicator. We dismiss this appeal.

Jonathan Perkins

Vice President

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