This appeal relates to an application lodged by ICS Legal on behalf of the appellant under the Adult Dependant Relative & Article 8 ECHR claim.
This matter was never considered in the merits and personal circumstances which led the application being refused by the Home Office. Full facts of the case and what we did is enclosed. Please note due to data protection, the appellant's name or any relevant details are not enclosed.
Summary case facts
The appellant who was married to her British partner, entered the UK on a visit visa and he had passed away whilst she was in the UK.
Both she and her husband resided outside of the UK prior to her entry as a visitor. Her daughter who was a British citizen had also passed away, leaving behind her 2 children and her partner. It was an unusual position that the appellant had found herself.
It was decided by the appellant and her sponsor, to lodge an immigration application in the UK. The application was made in 2021 but refused late 2022, bringing the appeal in 2023.
At the First Tier Tribunal IAC Taylor House
The appeal went before Mr T J Cary Judge of the FtT, and the Home Office was also represented.
The appellant and her sponsor was represented by Shajjad Miah of ICS Legal. In our preliminary submissions, the Judge agreed that the matter would be considered in line with Article 8 ECHR, and s117B(6) of the Nationality, Immigration & Asylum Act 2002 was particularly relevant.
Mr T J Cary Judge of the FtT heard from both the appellant and her sponsor, both found to be credible in their evidence and was asked a number of questions by the Home Office. Re-cross examination was done by ICS Legal, so we can point out any errors in the defence statements.
In our submission, we set out important aspects of our appeal skeleton argument and raised the appellant's right to family life, drawing the aspects of the ADR rules as being the governing policy in our appeal matter.
Consideration to the appellant's private life, as well as her family life with her grandchildren and wider family was given due consideration by Mr T J Cary Judge of the FtT.
Home Office sat on the argument that she had not lived in the UK long enough and that she was capable of relocating as well as be supported by her sponsor, once she returns home. Further to that, stated there was nothing exceptional on the appeal matter and should be dismissed.
Mr T J Cary Judge of the FtT, on paragraph 24 of his determination made the following statement:
"That discretion must be exercised on the basis of Article 8 considerations, in particular assessing all relevant factors in determining whether a decision is proportionate under Article 8.2. In such cases the basic framework of analysis contemplated by Lord Bingham in Huang (2007) UKHL 11 continues to apply requiring the application of the “step by step” approach suggested in Razgar [2004] UKHL 27. After applying the requirements of the rules, only if there may arguably be good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are “compelling circumstances” not sufficiently recognised under them. The exercise of discretion outside the rules variously described as "exceptional circumstances" or circumstances of "unjustifiable hardship" involves the Respondent applying a proportionality test by reference to Article 8."
ICS Legal made the following submission, reminding the Honourable Immigration Judge of an established matter and he confirmed those findings on paragraph 34 of his judgement:
"It was established in KO (Nigeria) [2018] UKSC 53 that s117B (6) is of particular significance. Where paragraphs (a) and (b) are satisfied, the Respondent cannot point to the public interest as requiring the removal of the person concerned. In determining whether those paragraphs are satisfied – in particular, whether it would “be reasonable to expect the child to leave”- the individual conduct of the person concerned does not play a part. Accordingly any issues with the Appellants immigration history does not prevent her relying on her relationship with the children as a means of avoiding removal. Nor is it relevant whether the children would, in practice, leave the United Kingdom in the event of his removal - see AB (Jamaica) [2019] EWCA Civ 661."
The appeal was allowed and the appellant had been granted leave to remain by the Home Office.
