UI2023005412 -[2024] UKAITUR UI2023005412- (18 March 2024)

Key Facts

Issues

• The tribunal remade the appeal under Article 8 ECHR, balancing the public interest in immigration control against the disproportionate impact of removing the appellant. Key factors included TLK's metastatic prostate cancer, language barriers, and the impossibility of relocating their family life to China.
• The Upper Tribunal concluded the First-tier Tribunal did not adequately address the public interest in maintaining immigration control under s.117B(1). This failure, combined with the s.117B(4) error, led to the decision being set aside and remade.
• The First-tier Tribunal was found to have erred in law by not applying s.117B(4) of the Nationality, Immigration and Asylum Act 2002, which requires little weight to be given to family life ties formed during unlawful presence. The Upper Tribunal concluded this omission was material and necessitated remaking the decision.
• The Secretary of State argued the First-tier Tribunal misapplied the Chikwamba principle (as clarified in Alam v SSHD [2023] EWCA Civ 30) by allowing the appeal on human rights grounds without sufficient consideration of the appellant's limited English and financial dependence. The Upper Tribunal found this argument unconvincing.

Holdings

• The Upper Tribunal remade the appeal and allowed it on Article 8 ECHR grounds, concluding there are insurmountable obstacles to family life in China due to TLK's metastatic prostate cancer requiring specialized treatment in the UK, language barriers preventing access to healthcare and legal work, and the psychological trauma of returning to China where the appellant suffered forced abortions.
• The Upper Tribunal found that the First-tier Tribunal erred in law by failing to apply s.117B(4) of the Nationality, Immigration and Asylum Act 2002, which requires little weight to be given to family life ties established during unlawful presence in the UK. The error was material as the First-tier Tribunal did not balance the public interest in immigration control or properly reason its decision under the statute.

Remedies

• The appeal was remade and allowed on Article 8 ECHR human rights grounds, finding that removal would be a disproportionate interference with family life due to insurmountable obstacles in relocating to China.
• The decision of the First-tier Tribunal was set aside due to an error of law in the application of s.117B(4) of the Nationality, Immigration and Asylum Act 2002.

Legal Principles

• The Upper Tribunal determined that the First-tier Tribunal erred in law by failing to conduct a proper proportionality assessment under Article 8 ECHR, particularly in balancing public interest factors related to immigration control as mandated by s.117B(4) of the Nationality, Immigration and Asylum Act 2002. The case highlights the requirement to weigh family life ties established during unlawful presence in the UK with limited significance, while also considering the Chikwamba principle regarding procedural refusals.
• The tribunal addressed whether the First-tier Tribunal's decision to prioritize factual circumstances over strict statutory form (s.117B(4)) constituted a material error. The Upper Tribunal concluded that the failure to apply the statutory requirement to give little weight to family life ties formed during unlawful presence was a material legal error, despite the factual merits of the case.

Precedent Name

• Rhuuppiah v SSHD
• Alam v SSHD
• Dube v SSHD
• GM (Sri Lanka) v SSHD

Cited Statute

Judge Name

Passage Text

• I find that it can properly be said that there would be insurmountable obstacles to family life taking place in China...
• I remake the appeal by allowing it on Article 8 ECHR human rights grounds.
• I have considered the evidence of the appellant and TLK and find that their evidence is credible...