Disappointingly in this case, the  First Tier Tribunal permitted  itself to be persuaded  by the Home  Office  to grant  permission to appeal in relation to an Immigration  Judge’s decision allowing  the Appellant’s Article 8 appeal.

 

Ironically, the same Home Office Guidance on private life which the Secretary of State  relied  upon and which formed the basis of grant of permission, was utilized  to the Appellant’s benefit in the Upper Tribunal – although neither   the presenting officer nor  myself  at the First Tier Tribunal hearing   referred to  it all.  The Immigration Judge made no reference to  the guidance in her decision when allowing the Appellant’s appeal.

 

Additionally, the fact of the Home Office’s past policy of   non – returns to Zimbabwe  until 2011 was successfully  relied upon in  the Appellant’s favor  even though he never claimed asylum during his period of residence in the UK.

 

The dire political, social and economic situation in Zimbabwe over  the past years and currently,   by reference to background evidence, was thrown into the  mix  for good measure  and that argument  also  found favour with both tiers of the  Tribunal. The Appellant’s current circumstances and also the country situation in Zimbabwe  therefore  contributed substantially to a finding that there were  very significant obstacles to integration in Zimbabwe.

 

The Immigration Judge had allowed the Appellant’s  appeal solely by reference to the  Immigration Rules on the basis  that  if returned to Zimbabwe  he  would face  very significant  obstacles to his reintegration in his home country.

 

The thrust of the Secretary’s State’s permission application was that in considering Paragraph  276ADE(1)(vi) of the Immigration Rules, the Immigration Judge had failed to appreciate  the nature of the test  within that paragraph.  Reference was also  made  to the Home Office guidance  in that respect and it was  asserted that the Judge made her findings on the basis  that the Appellant  had no one to support him in Zimbabwe and no one to send  remittances from the UK.  In effect,  the  permission application asserted that the Immigration Judge  failed to appreciate that, “A very significant obstacle to integration means something which would prevent or seriously inhibit the applicant from integrating into the country of return. The decision maker is looking for more than obstacles. They are looking to see whether there are “very significant” obstacles, which is a high threshold. Very significant obstacles will exist where the applicant demonstrates that they would be unable to establish a private life in the country of return, or where establishing a private life in the country of return would entail very serious hardship for the applicant”.

 

 

Summary background:

 

The Appellant arrived in the UK from Zimbabwe as a visitor in 1999 and remained in the UK with leave up until January  2002 when his student visa application was refused. The next application he sought to  make was  of a very general nature in 2009  relying on Article 8 of the ECHR. This was refused with no right of appeal in 2010.  No enforcement action was taken. A further application followed again along similar lines  in 2015. This was refused a few months later with a right of appeal. Following refusal and after lodging his  own appeal grounds, the Appellant instructed me.  The FFT allowed the appeal in November 2016 however upon application, permission to appeal was  granted to the Secretary of State in April  2017.  The Upper Tribunal  upheld the FTT Judge’s decision in July 2017.

 

As regards family circumstances,   it was noted that the Appellant has an adult son living in  Zimbabwe, unemployed and supported by others. The Appellant also  has two  adult children who are settled in the UK, as well as some grandchildren.

 

The relevant Home Office Guidance relied upon:

 

The Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b  Family Life (as a Partner or Parent) and Private Life: 10-Year Routes, August 2015   relevantly provides:

 

“8.2.3.4. Assessing whether there are “very significant obstacles to integration into” the country of return

Paragraph 276ADE(1)(vi) of the Immigration Rules, allows an applicant who is over the age of 18 and who has lived continuously in the UK for less than 20 years, to meet the requirements of this rule if they can demonstrate 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.

When assessing whether there are “very significant obstacles to integration into the country to which they would have to go if required to leave the UK”, the starting point is to assume that the applicant will be able to integrate into their country of return, unless they can demonstrate why that is not the case. The onus is on the applicant to show that there are very significant obstacles to that integration, not on the decision maker to show that there are not.

The decision maker should expect to see original, independent and verifiable documentary evidence of any claims made in this regard, and must place less weight on assertions which are unsubstantiated. Where it is not reasonable to expect corroborating evidence to be provided, consideration must be given to the credibility of the applicant’s claims.

A very significant obstacle to integration means something which would prevent or seriously inhibit the applicant from integrating into the country of return. The decision maker is looking for more than obstacles. They are looking to see whether there are “very significant” obstacles, which is a high threshold. Very significant obstacles will exist where the applicant demonstrates that they would be unable to establish a private life in the country of return, or where establishing a private life in the country of return would entail very serious hardship for the applicant.

The assessment of whether there are very significant obstacles to integration will generally consider the proposed country of return, unless there is information to suggest that the applicant might have a choice about where they choose to relocate to, such as where they have a right to reside in a country other than the country of return, or where they have more than one nationality. In that case the decision maker can take account of whether there are very significant obstacles to integration continuing in any of the relevant countries.

The decision maker must consider all the reasons put forward by the applicant as to why there would be obstacles to their integration in the country of return. These reasons must be considered individually and cumulatively to assess whether there are very significant obstacles to integration. In considering whether there are very significant obstacles to integration, the decision maker should consider whether the applicant has the ability to form an adequate private life by the standards of the country of return – not by UK standards. The decision maker will need to consider whether the applicant will be able to establish a private life in respect of all its essential elements, even if, for example, their job, or their ability to find work, or their network of friends and relationships may be differently constituted in the country of return.

The fact the applicant may find life difficult or challenging in the country of return does not mean that they have established that there would be very significant obstacles to integration there. The decision maker must consider all relevant factors in the person’s background and the conditions they are likely to face in the country of return in making their decision as to whether there are very significant obstacles to integration”.

 

Arguments in Appellant’s favour before the First Tier Tribunal:

 

In summary, the following arguments were advanced on the Appellant’s behalf:

 

• The Appellant had continuity of residence since 1999 during which time he had only been absent from the UK for two weeks; that absence should not count as breaking continuity  as he left and returned to the UK during the currency of his student visa.

• The Appellant has been in the UK for 17year, a substantial period.

• Also relevant were the changes that occurred in Zimbabwe since 1999. There was also a reference to the Home Office policy of not enforcing returns to Zimbabwe during certain periods because of the turbulent times in the country.

• Currently there was a hunger, shortage of food and high unemployment in Zimbabwe.

• The Appellant did not have the necessary skills; the skills he had acquired in Zimbabwe prior to his arrival in the UK would not be sufficient now. Even graduates in Zimbabwe are without employment.

• The Appellant would be without employment and would be at risk of destitution.

• His adult son in Zimbabwe was reliant on his aunt and it was unreasonable to expect the Appellant to live with her as she was not in employment.

• If returned to Zimbabwe he would encounter harsh conditions, very different from those he left in 1999.

• In the alternative, there were exceptional circumstances which were not caught by the Immigration Rules namely the situation in Zimbabwe and the delay on the part of the Home Office to take enforcement action.

 

The Immigration Judge reasoned and found as follows:

 

• The Judge was satisfied on the evidence that the Appellant had been in the UK since 1999 and that he was here with valid leave until 2002. His two week absence was not sufficient to break his continued residence as he travelled to and returned from Zimbabwe during the currency of his student leave.

• The Judge express stated, “ I have considered whether he can bring himself within paragraph 2716ADE(1)(iv) of the immigration Rules. As the Appellant has not lived continuously in the UK for over twenty years he needs to show that there would be very significant obstacles to his integration into his home country”.

• It was noted that the Secretary of State had recognised at various times during the Appellant’s residence in the UK that it was not safe to return failed asylum seekers forcibly to Zimbabwe. This was because of the serious deterioration in the situation in the country, particularly associated with political issues and human rights abuses. It was noted that the suspension of forced removals was however lifted in 2011. The objective material in the Appellant’s bundle 2014-2016 spoke of high unemployment with jobs being cut, graduate unemployment, shrinking economy and parts of the country suffering the effects of drought.

• There was no evidence that the Appellant’s family members in the UK were able and willing to provide the level of financial support to maintain him in Zimbabwe.

• The Appellant’s son in Zimbabwe was dependant upon his aunt for accommodation and neither was in employment.

• Given the background evidence about the general economic circumstances in Zimbabwe and the level of employment in particular, the Judge considered that a man of the Appellant’s age with no recent employment history would find it difficult to secure employment at such a level that he would be self –supporting.

• The Judge acknowledged that she had taken into account the Appellant’s long residence in the UK, albeit he had been here without leave from 2002, his age, education and employment history, the country situation in Zimbabwe, in particular the worsening economic situation and the likely means of support that would available to him( or the lack of them).

• It was unlikely the Appellant would be able to find work and the Judge was not satisfied  that he could be adequately supported from family in the UK or family in Zimbabwe.

• It was found on the balance of probabilities, that despite living in Zimbabwe for 40years, his current circumstances and the country situation cumulatively meant that he would face very significant obstacles in Zimbabwe.

• The Immigration Judge found the Appellant satisfied Paragraph 2766ADE(1)(iv) of the Immigration Rules.

 

The Response:

 

Having successfully represented the Appellant  at his FTT appeal hearing,   he had no hesitation in instructing me to continue that representation  at  the Upper Tribunal. The written  Response I prepared   set forth  the following,  among other matters:

 

• The Immigration Judge was entitled to reach the conclusions that she did. A combination of factors applicable to the Appellant’s claim as set out in the material before the Immigration Judge and also as set out in her decision, meant that the requirements of the Immigration Rules were met.

• The Secretary of State sought to relitigate matters based on internal Guidance that was never before the Immigration Judge and upon which the Presenting Officer did not place reliance. In any case, having regard to the Judge’s considerations, reasoning and her decision, she appreciated the nature of the relevant test she had to apply even where she did not make express reference to the Guidance. The Appellant was found credible by the  Judge. The Appellant was able to show that there would be applicable very significant obstacles seriously inhibiting him from integrating into the country of return. He was able to demonstrate that seeking to establish a private life in the country of return would entail very serious hardship for him. In respect of all essential elements, the Appellant was able to show that he would not be able to establish a private life by reference to a job, ability to find work, having resided here since 1999 no longer having a network of friends in Zimbabwe and further not being able to rely upon relatives in Zimbabwe for support. In making her decision as to whether there are very significant obstacles to reintegration, the Judge appropriately   took into account the Appellant’s background and the conditions he would be likely to face on return to Zimbabwe.

 

The Upper Tribunal’s decision:

 

In addition to relying upon the written Response I had prepared,  arguments were  also made on  the  Appellant’s behalf that the grounds  for permission sought to  oversimplify matters as the Secretary of State relied  only upon 3 lines of the Judge’s decision. It was  submitted that the  Immigration Judge’s decision contained no  error of law  and  if there was any such error of law, it was not material.

 

The Appellant’s appeal was allowed on the day of the Upper Tribunal hearing itself  in June 2017, following  oral submissions.

 

In her written decision of July 2017, the Upper Tribunal Judge  considered and found as followed:

 

• The Upper Tribunal Judge noted that both parties sought to rely upon the Home Office guidance.

• The Upper Tribunal agreed with me that the Immigration Judge was acutely aware of the test she had to apply.

• It was found that the application for permission to appeal was misconceived and somewhat misleading.

• It was clear from the Judge’s decision that she took into account a number of factors in concluding ultimately that there would be very significant obstacles to the Appellant’s integration in Zimbabwe under paragraph 276ADE(1) (iv).

• It was noted that although this was not pleaded as a material error of law in the Secretary of State grounds of appeal, whether if the Judge had been taken to the Home Office it would have made any material difference to her decision. The Upper Tribunal Judge concluded that it would not and she placed reliance upon paragraph 8.2.3.4 of the Guidance which both parties sought to rely upon.

• The Upper Tribunal found that taken as a whole, the Judge gave consideration to the factors material on the particular facts of the Appellant’s case and the decision was properly in line with the Home Office guidance.

• There was no material error of law in the Immigration Judge’s decision and the Upper Tribunal upheld her decision.