Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Mr T Hodson, of counsel, instructed by Elder Rahimi Solicitors For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer (i)
Video recorded evidence from witnesses is admissible in the Upper Tribunal. Its weight will vary according to the context.
(ii)
Alertness among practitioners and parties to the Upper Tribunal’s standard pre-hearing Directions and compliance therewith are crucial.
(iii) There are no hard and fast rules as to what constitutes family life within the compass of Article 8 ECHR.
(iv)
A person’s value to the community is a factor which may legitimately be considered in the Article 8 proportionality balancing exercise.
DECISION
Introduction
1. By this decision is remade the decision of the First-tier Tribunal (the “FtT”) which, by earlier decision of this Tribunal promulgated on 18 October 2016, was set aside on account of error of law.
Framework of this appeal
2. The Appellant is a national of Nepal, born on 19 December 1989 and now aged 26 years. The origins of this appeal are traceable to an application made by the Appellant to the Respondent, the Secretary of State for the Home Department (the “Secretary of State”), dated 04 February 2015. In the decision which ensued, this is described as an application “ for leave to remain in the United Kingdom on the basis of private life in the UK ”. 3. The Secretary of State’s decision is in two parts. In the first part, consideration was given to whether the Appellant’s application satisfied any of the material requirements of the discrete Article 8 regime contained in the Immigration Rules (the “Rules”), specifically paragraph 276 ADE. The decision maker concluded that the application did not satisfy the requirements of the Rules. The second part of the Secretary of State’s decision is rehearsed under the rubric “Decision on Exceptional Circumstances”. It states: “ It has also been considered whether the particular circumstances set out in your application constitute exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 ……, might warrant a grant of leave to remain in the UK outside the requirements of the Immigration Rules. In support of your claim, you state you receive money from relatives or friends [sic] who give you money when needed. This arrangement could continue, the money could be transferred to you overseas and would provide financial support to you. Furthermore you have stated that you have established a wide network of friends in the UK however [sic] these friendships in the UK can continue from overseas via modern methods of communication. Furthermore, the option is open to your friends to visit you in Nepal. It has therefore been decided that there are no exceptional circumstances in your case. Consequently your application does not fall for a grant of leave outside the rules .”
FtT Decision
4. The grounds of appeal to the First-tier Tribunal (“FtT”) are also in two parts. The first is couched in diffuse, general and unparticularised terms. The second, entitled “Statement of Additional Grounds”, repeats the defects in the first and additionally, includes a series of bare assertions. 5. The FtT made three principal conclusions. First, the Appellant’s case could not succeed under the Rules (paragraph 276 ADE) as he was considered to have continuing ties to Nepal and had failed to demonstrate very significant obstacles to his reintegration in that country. Second, the Tribunal concluded that the Appellant had failed to demonstrate any family life. Third, the Tribunal concluded that it would “ … pay no regard to the private life the Appellant has established in the United Kingdom, with Mr ‘R’ or with the community ”. Mr R is the person upon whom the Appellant’s case has at all times centred: see infra . The appeal was dismissed accordingly.
Error of law decision
6. Next, by its decision dated 18 October 2016, this Tribunal decided that the decision of the FtT must be set aside by reason of error of law, reasoning thus: “ It is not clear why the Judge found that she would pay no regard to the private life the Appellant had established. The private life of the Appellant ought to have been weighed in the balance when conducting a proportionality exercise. The Judge clearly had found that the Appellant had established a private life. Whilst the fact that alternative care would be available [to Mr R] is a relevant factor (and therefore consideration of this issue by the Judge was not an error of law), it does not lead inexorably to a finding that the Appellant’s right to respect for his private life would be outweighed by other factors such as effective immigration control. ” In summary, the decision of the FtT was infected by material error of law as it “ … did not undertake an adequate proportionality balancing exercise ”.
New Evidence
7. One evidential tranche of the Appellant’s case is composed of a series of statements of assorted friends and supporters (nine in total) and a petition type document. This evidence is illuminated by the following extract from a letter from the Appellant’s solicitors provided three working days in advance of the hearing: “ … The names of the persons who have provided a video statement in this appeal are …. [ nine persons are named ] ….. Mr ‘PS’ will be attending the hearing to give evidence ….
The statements made are all broadly along the same lines as the petition attached to Mr ‘PS’s’ statement, namely each person sets out who they are, how they know the Appellant and ‘Mr R’, how important the Appellant is to Mr R and to his ability to continue with his acting career in particular and the likely impact on both if his appeal is dismissed. ” 8. The Upper Tribunal’s directions to the parties, dated 25 August 2016, included the standard paragraphs drawing attention to the powers and procedures of the Upper Tribunal relating to the reception of fresh evidence (see the Appendix to this judgment). These include the following cautionary statement: “ A failure to comply with Rule 15(2A) will be regarded as a serious matter and may result in fresh or further evidence not being considered by the Tribunal. ” This is followed by a series of ancillary paragraphs giving detailed directions relating to fresh evidence applications. These standard Directions, substituting a predecessor, were introduced by the Upper Tribunal in February 2016. They are appended hereto for the attention of parties and practitioners generally. 9. Following the Upper Tribunal’s supplementary directions dated 07 December 2016, the information and intentions intimated in the aforementioned solicitor’s letter emerged. It is timely to draw attention to rule 5(1) and (2)(g) and rule 6, together with the definition of “hearing” in rule 1(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008 and, of course, the overriding objective.: 10. Practitioners are also reminded of Upper Tribunal Immigration and Asylum Chamber Guidance Note No 2 of 2013 relating to the reception of evidence by video link and, in particular, [4] thereof. Finally, adherence to standard Direction number 6(vi) must become a priority for every practitioner. It is in these terms “ Both parties shall, at l