United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/19766/2019

 

 

THE IMMIGRATION ACTS

 

 

Heard at Bradford (via Microsoft Teams)	Decision & Reasons Promulgated
On 5 November 2021	On 23 November 2021

 

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

 

 

Between

 

BRIAN MICHAEL KEETH

( Anonymity direction not made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Ms J Rothwell instructed by UK Migration Lawyers Ltd

For the Respondent: Mr Kotas, a Senior Home Office Presenting Officer.

 

 

ERROR OF LAW FINDING AND REASONS

 

1.                 The appellant appeals with permission a decision of First-tier Tribunal Judge Mensah ('the Judge') promulgated on 20 January 2021 in which the Judge dismissed the appellant's appeal.

 

 

Preliminary point

 

2.                   What is not in dispute between the parties is an error made by the Judge at [1] of the decision under challenge where it is written, "he entered the United Kingdom on 28 October 2017 as a visitor, who by virtue of his visa had agreed to return to America (USA) before the expiry of six months, and instead he did not return and overstayed. He therefore remained illegally in the United Kingdom."

3.                   The appellant's grounds of appeal refer to a similar error having been made by the Secretary of State when setting out the appellant's immigration history in the refusal notice. Why such statement is said to be wrong is because the pages of the appellant's passport, missed out from the copy provided by the respondent, show the appellant entered the United Kingdom (UK) as a visitor on 28 October 2018. The application for leave, the refusal of which led to the decision under challenge, clearly shows he re-entered the UK on this date, having returned to the USA on 26 March 2018, when his mother fell ill, a fact referred to by the Judge at [15].

4.                   As Mr Kotas reconfirmed the Secretary of State's acceptance of this error, I stated I would record it as a preliminary point in this decision, irrespective of the final outcome of the appeal to avoid any misunderstanding arising; as it potentially might do at a later point if the appellant was required to apply for permission to re-enter the United Kingdom when an act of overstaying could be held against him. He has not overstayed and is not an overstay.

5.                   The appellant's contention concerning this mistake and its impact upon the Judge's findings is discussed further below.

 

Background

 

6.                   The appellant is a citizen of the USA, born on the 20 January 1978. His mother (Mrs Hopkins) and stepfather (Dr Stevens) live together in the United Kingdom. His application for leave to remain outside the Immigration Rules was made on the basis of his private and family life with his mother and stepfather. The Judge sets out a summary of the appellant's case between [3 - 5].

7.                   At [6] Judge notes the Secretary of State does not accept that the appellant has formed a family life as an adult man aged 42 years, who lived for many years independently from his mother and has worked in multiple jobs in the USA, and that their relationship was no more than of the normal family ties that exist between an adult and their parents. The Judge records it was argued the appellant's mental health would not prevent him from returning to the USA where he could access similar or sufficient medical treatment for his mental health needs and where he can live and work and that there were no significant obstacles, and certainly no very significant obstacles, to his return.

8.                   The background against which the Judge assessed the answer to the Razgar questions, properly identified as being applicable by the Judge in the decision, is set out at [11 - 13] in the following terms:

 

 

11. The date of hearing is the important date for the purposes of my decision because this is a human rights appeal. The first Razgar question is to decide if the Appellant has established a family life with his mother and stepfather in the United Kingdom. The history of the cases given to me at the hearing and recorded in my Record of Proceedings, is that the Appellant was living independently from his mother when he studied for his degree at the Art Institute in Philadelphia. He graduated in 2006 and so he was seemingly living away from home for the duration of his studies (2003 to 2006). He told me he lived as a resident at the Art Institute for some time and then moved out of Philadelphia city to share a residence with a friend. He would then commute to his studies in the city. He lived away from home for about 3 - 4 years thereafter and in 2010 his mother and stepfather purchased a property that needed renovation and so he moved into the property in West Chester in Pennsylvania. He told me his mother had first gone to live in the United Kingdom in 2004, but was still living in the residence in West Chester. The family had planned to settle in West Chester but Dr Steven told me he made enquiries regarding his ability to work as a Doctor in America and soon discovered he would not only have to take various exams but he would have to work as a junior doctor for a number of years and this was not practical. Dr Stevens returned to the United Kingdom as they realised that they would have to live in the United Kingdom.

12. It was decided the Appellant could benefit from a new course of study as he had undertaken various jobs but none of them in an area his family felt reflected his ability. His stepfather agreed to pay the £20,000 a year costs associated with a Computer degree of three years duration in the United Kingdom at Aston University. Mrs Hopkins remained in America to complete the property sale and the Appellant travelled to the United Kingdom and commenced his studies at Aston University. Dr Stevens told me he had not only paid for the studies and accommodation that had also assisted with household items like bedding. He noticed the Appellant was not looking after himself and it was soon agreed the Appellant could not cope with the studies and so after 4 months he left the course and went back to America.

13. The property in West Chester was sold in 2017 and Mrs Hopkins returned to the United Kingdom to live with her husband. The Appellant remained in America and found work driving heavy machinery and demolition of residential and commercial property. He found a friend who was willing to give him a room and he moved in with his friend and his friend's girlfriend. On all their evidence there was no plan for the Appellant to leave America. He told me in 2018 his mother felt unwell. He told me at the hearing he understood his mother to be seriously ill and so he decided to arrange to travel to the United Kingdom for a visit. He says he saw how unwell his mother was and decided to stay to help her. Whilst in the United Kingdom his mother and stepfather decided to investigate his mental health as they had concerns about him and he was found to be suffering a moderate depressive episode. The Appellant and Dr Stephen told me they would like the Appellants to remain in the United Kingdom to support his mother, have their emotional support, undertake CBT and Dr Stevens said he was happy to pay privately for any medical treatment and for the Appellants to undertake a new course of study as a nurse in the United Kingdom.

 

9.                   Having considered the documentary and oral evidence the Judge sets out her findings from [14] of the decision under appeal which can be summarised in the following terms:

 

a)   That the appellant was living independently from his mother and stepfather on and off for a number of years [14].

b)   That the appellant was able to work and support himself in many and varied jobs and was also helping his family renovate the property and living independently [14].

c)    Thus, the reason for the appellants last entry to the United Kingdom was said to be out of concern for his mother, not as a result of his inability to live and work independently from his family [14].

d) The evidence about the reasons for the appellant coming to the United Kingdom was "rather difficult to follow" [14].

e)   The medical evidence showing his mother had been admitted to hospital on 25 January 2019 could not have triggered the appellant's visit as he had entered three months previously making his claim that this was the reason inconsistent [15].

f)    Medical investigations had shown a good outcome for Mrs Hopkins. The Judge accepts the family are concerned with regard to Mrs Hopkins weight which the Judge accepts could impact on mobility but did not find that of itself was evidence of functional limitation requiring assistance from another person and does not explain the decisions the family made [16].

g)   The appellant's explanation of what he did for his mother did not establish a relationship of dependency beyond normal ties [17].

h) Practical aspects of the support given to his mother is no more than normal aspects one would expect to find in a relationship between an adult and his parent. The appellant and Mrs Hopkins were unrealistic and apparently ignorant of the medical evidence they were seeking to rely upon in relation to Mrs Hopkins health. The reasons for the appellant's visit to the United Kingdom was confused and inconsistent. The Judge did not find the evidence demonstrated that Mrs Hopkins required her son for practical daily living or mobility support [18].

i)     The family overstated the need for the appellant to assist his mother to bolster their claim; the motivations for which appeared to the Judge to have been a desire on the part of Mrs Hopkins have her son in the United Kingdom [19].

j)     It is accepted, Mrs Hopkins loves her son and wishes for him to live in the United Kingdom but there was no evidence she suffers from any mental health condition which impairs upon her function that explains the level of emotional dependency beyond normal emotional ties [20].

k)   The Judge did not accept the claimed significant difficulties noted in the report of Dr Sen [21].

l)     The Judge read the report from Dr Natalie Cross, notes no medical records from the USA are available, but also notes the appellant's account that he never had treatment for mental health needs in America. The Judge found Dr Cross' reference to the appellant and his mother becoming dependent on each other for emotional survival a reference of limited value as there was no examination of the developments or changes following the appellant becoming a grown man and living independently. The Judge notes Dr Cross admitted to having no knowledge of the availability of medical treatment in the USA [25].

m)    The Judge notes an addendum report from Dr Sen dated 1 December 2020. It was noted there was no account by the appellant that he was taking antidepressant medication at all, which the Judge found is consistent with the appellant earlier stating he did not want to take antidepressant medication and wanted therapy, which Judge claims to be inconsistent with his oral evidence [26].

n) The Judge finds Dr Sen does not address the inconsistencies in the evidence between himself and Dr Cross regarding the appellant's stated connections to America, and nor does he address the positive impact the therapy apparently had on the appellant and why an earlier recommendation for 3 to 6 months of therapy was not addressed by Dr Cross spending 10 months of therapy with the appellant [28].

o)   Medical experts have had to rely heavily on what they have been told by the appellant, his mother and stepfather [29].

p) The accounts given by the medical experts would warrant the following conclusions: that the appellant has a long-standing depression triggered by or connected with his father leaving when he was a child, which has been exasperated by the various failed attempts to progress his career aspirations or those of his family. It is accepted the appellant has been suffering "one-off" with moderate depression yet despite this the appellant has been able to live independently from his family and found work and arranged accommodation in the USA. Neither expert addresses in any proper way why the appellant cannot work and live independently as he had done so before [29].

q)   The evidence of the family with regard to the claim the appellant will be homeless or destitute if returned to America was found to lack credibility. It is not found credible the family would abandon the appellant if he has to return to the USA. The Judge finds that financial support will be given. The Judge does not find on the evidence the appellant would not be able to find suitable accommodation in the USA with the level of support available from his family. The family have not filed evidence to support their claim they could not afford to support the appellant. The Judge did not accept the appellant will be homeless or in significant financial difficulty in the USA. His history shows the appellant having long-standing difficulties at various stages of his life, yet he has managed to find work throughout even if the jobs were not of the type his mother and stepfather would wish for him [30].

r)    The Judge finds the claims the appellant could not access therapy in the USA due to a lack of medical insurance lacking credibility. There was no evidence of the cost of therapy sessions or antidepressant medication in the USA and no expert evidence dealing with the availability of mental health support there, with or without medical insurance [31].

s)    Dr Sen's recent opinion that the appellant's condition had deteriorated did not take account of the impact of the Covid lockdown [32].

t)    The Judge finds the medical reports "woefully limited" in the way they deal with the emotional support connection between the appellant and his mother, with little evidence being placed before the Judge detailing the form of the emotional support and what the actual consequences would be if withdrawn [33].

u) The Judge was not satisfied that the relationship between the appellant and his mother went beyond normal emotional ties [33].

v)   The Judge accepts the appellant may face obstacles to returning to the USA, as he will have to find accommodation, seek further treatment for his depression, and look for work, but did not accept he would have to do that without assistance as he will have the support of his family to undertake that transition [34].

w)    The Judge accepts the appellant will face obstacles but did not find they were very significant obstacles [34].

x)   The Judge rejects Mrs Hopkins claim that the appellant might be suicidal, as there was no credible expert or other evidence to support such a claim. [34].

y)   The Judge did not accept the appellant had established the type of family life required to meet the legal test under Razgar and finds the relationship between the appellant and his mother is one of the normal emotional ties one might expect between an adult and his mother and stepfather. The Judge did not accept there is a level of dependency that would meet the test of family life in an adult child and parent relationship [35]. The Judge does not find Article 8(1) engaged on this basis.

z)   The Judge finds in the alternative that if it was found family life did exist it was necessary to consider the issue of proportionality. The Judge rejects the claim the appellant could meet the requirements of paragraph 276ADE of the Immigration Rules, and when balancing the competing interests concludes any interference in a protected right is proportionate. [36- 37].

 

10.               The appellant sought permission to appeal which was granted by Upper Tribunal Judge Martin, sitting as a judge of the First-tier Tribunal, on the basis it was said to be arguable that if the Judge was mistaken about the appellant being an overstay this would have affected the way she considered Article 8, and in particular s.117 of the Immigration Asylum Act 2002.

11.               The grounds on which permission to appeal was sought was much wider than the grant refers; asserting a mistake of fact relating to the status of the appellant, an application of the wrong test for the assessment of family life and making errors relating to the medical evidence.

 

Error of law

 

12.               The Judge's finding the appellant was unable to satisfy the Immigration Rules is a finding within the range of those reasonably open to the Judge on the evidence. The Rules are, however, not a complete code as to how Article 8 is to be applied and the Judge was required to consider article 8 outside the Rules as she did in a properly structured manner.

13.               The Judge refers to Razgar [2004] UKHL 27 in which at [17] it was found:

17.     In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be:

(1)   Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

(2)   If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(3)   If so, is such interference in accordance with the law?

(4)   If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5)   If so, is such interference proportionate to the legitimate public end sought to be achieved?

14.               No procedural irregularity arises in the structure of the determination adopted by the Judge.

15.               Article 8 ECHR reads:

 

Article 8 of the Convention- Right to respect for private and family life:

 

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

 

16.               The appellant argues that in concluding family life recognised by Article 8 does not exist between his mother and stepfather an incorrect test has been applied by the Judge. Reference is made in the grounds to the decision of the Court of Appeal in Rai v Entry Clearance Officer [2017] EWCA Civ 320, and it argued the correct test is whether there is "real" or "committed" or "effective" support and that the previous test set out in Kugathas v Secretary of State the Home Department [2003] EWCA Civ 31 had been interpreted too restrictively. It is argued the Judge erred in law in looking for something beyond normal emotional ties rather than assessing the evidence before her that the appellant suffers from moderate depression, has been supported by his mother and stepfather for periods of his life, and has been supported by them since he came to the United Kingdom in October 2018.

17.               The case of Rai was one in a line of cases involving children of former serving members of the Gurkha Regiment within the British Army. Various issues were considered within that line of authorities, including consideration of the historic injustice which is not relevant on the facts of this or the majority of Article 8 appeals.

18.               The Court in Rai , found that 'The real issue under Article 8(1) is whether, as a matter of fact, an adult family member has demonstrated that he has a family life with his parents which existed at the time of their departure and has endured beyond it, notwithstanding their having left Nepal when they did. There is no test of 'exceptionality''.

19.               In this appeal the Judge considered the evidence with the required degree of anxious scrutiny when assessing whether the appellant had shown that family life recognized by Article 8 existed.

20.               Reference was made in her submissions by Ms. Rothwell to the strength of the subjective ties between the appellant and his mother, including by reference to correspondence copies of which appear in the appellant's bundle, but as found in Ribeli v. Entry Clearance Officer, Pretoria [2018] EWCA Civ 611 'the test under Article 8 is an objective one, whatever the subjective feelings of the person may be'. That is the basis on which the Judge clearly considered the evidence.

21.               Whether family life recognized by Article 8 exists is question of fact. T here is a distinction to be drawn between family life in the colloquial sense and family life within the meaning of Article 8(1).

22.               In Kugathas [2003] EWCA Civ 31 the Court of Appeal said that in order to establish family life it is necessary to show that there is a real committed or effective support or relationship between the family members and the normal emotional ties between a mother and an adult son would not, without more, be enough. This is likely explanation for the use of the phraseology by the Judge of the evidence only supporting a relationship of the type one would expect to see between parents and an adult son.

23.               In PT (Sri Lanka) v Entry Clearance Officer, Chennai [2016] EWCA Civ 612 it was held that some tribunals appeared to have read Kugathas [2003] EWCA Civ 31 as establishing a rebuttable presumption against any relationship between an adult child and his parents or siblings being sufficient to engage Article 8. That was not correct. Kugathas required a fact-sensitive approach and should be understood in the light of the subsequent case law summarised in Ghising (family life -adults -Gurkha policy) [2012] UKUT 160 (IAC) and Singh [2015] EWCA Civ 630. It was found in PT that there was no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8 nor was there any requirement of exceptionality. It all depended on the facts. The love and affection between an adult and his parents or siblings would not of itself justify a finding of a family life. There had to be something more. A young adult living with his parents or siblings would normally have a family life to be respected under Article 8. A child enjoying a family life with his parents did not suddenly cease to have a family life at midnight as he turned 18 years of age. On the other hand, a young adult living independently of his parents might well not have a family life for the purposes of Article 8 (paras 23 -26).

24.               In this appeal the Judge makes a clear finding that the appellant, whilst initially dependent upon his family during his childhood (and probably during the period he attended the Arts College when he would not have founded an independent life of his own) had transitioned to independent living when he obtained employment, his own accommodation, and lived a life which on the facts appears to have been his own independent life free of parental control within the USA. No legal error material to that finding or its impact on the decision has been made out.

25.               The submission made that the Judge's error in finding the appellant was an overstay has infected the overall assessment of the weight to be given to the evidence, such that the findings made were thereafter unsafe, has no arguable merit. Whilst it is accepted the Judge refers to a belief the appellant was in overstay on more than one occasion, whether the appellant was in overstay or in the United Kingdom lawfully has not been shown to impact upon the factual findings made by the Judge in relation to the nature of the relationship between the appellant's mother and stepfather.

26.               The grounds also assert the Judge made errors in relation to the medical evidence. The Judge clearly took such evidence into account as is clear from a reading of the determination. The assertion the Judge made her own medical interpretation of the appellant's medical needs and his mother's health, such that she stepped outside her judicial role and placed herself in the role of the doctor is noted, and some of the findings, such as the fact the appellant's mother shortness of breath was said to be unusual for hypertension, are ones that are factually incorrect but have not been shown to undermine the Judge's overall assessment of the evidence.

27.               It was not pleaded that the medical situation of the appellant was sufficient to cross the threshold identified in AM (Zimbabwe) [2020] UKSC 17. The Judge noted the appellant's stance in terms of not taking medication, his request for therapy, and his engagement with such therapy in the UK. The Judge's findings that it had not been shown that any support the appellant required was not available in the USA is a finding within the range of those available to the Judge on the evidence. Whilst there has been much in the news regarding the health care system in the USA, especially when there was much discussion about "Obama Care" and the need for private medical insurance for the majority to access the treatment that they require, the Tribunal has judicial knowledge of the availability of student health centre or Federally qualified health centres providing free or low-cost mental health services in the USA, together with the existence of a free helpline run by the National Alliance on Mental Illness who provide 24-hour telephone assistance. It was not made out that any prescription drugs the appellant may require would not be available, especially in light of the unchallenged finding by the Judge that the appellant would not be abandoned by his family if he had to return to the USA who would provide him with financial and other means of support within the means available to them.

28.               The Judge noted the medical evidence concerning the appellant's mother, but the core finding that it had not been established on the evidence from all sources that the appellant's mother requires the appellant to remain in the United Kingdom to provide her with essential care has not been shown to be a finding outside the range of those available to the Judge on the evidence. Not only had the evidence not shown the existence of illness or symptoms which required such a degree of input, it is also the case that the appellant's stepfather Dr Stevens is clearly a very knowledgeable person in terms of medical needs as well as a huge support to both the appellant and his wife - the appellant's mother.

29.               In terms of the comment by Dr Stevens that he was willing to continue to support the appellant in the United Kingdom, including the costs of his studies to acquire a nursing qualification, it was not made out that the appellant would not be able to apply for entry clearance from the USA if he was able to obtain a place of study in the United Kingdom, supported by Dr Stevens. Qualified nurses are on the list of shortage of occupations and if the appellant were able to qualify he may be able to seek further leave to remain on this basis. That is, however, speculation as it will depend upon the situation that prevails at the time any such application is made. It is settled law, however, that Article 8 does not give a person the right to study in the United Kingdom.

30.               The Judge's analysis of the reasons the appellant remained in the UK beyond his leave as a visitor have not been shown to be outside the range of findings reasonably open to the Judge on the evidence. If the basis was the desire for the appellant and his mother to be able to stay together in the family unit in the United Kingdom, during which each can mutually support the other, that is understandable, but it does not show the Judge's conclusions are wrong; especially as Article 8 does not give a person the right to choose where they wish to live. The purpose of Article 8 is to prevent an unwarranted interference in an existing protected right.

31.               Both parties referred the Upper Tribunal to [19] of the decision challenge where the Judge wrote:

 

19. I take the view of the family as a whole have sought to overstate this need to try and bolster the reason for the Appellant visit to the United Kingdom and his overstay. When one removes the claimed explanation and considers when the Appellant entered the United Kingdom and the fact the family had refocused their decision to live in the United Kingdom. It seems to me the motivation may have in fact been a desire on the part of Mrs Hopkins to have her son in the United Kingdom because she was living here and he is her only child. Whilst this is perfectly natural personal choice is not a relevant consideration.

 

32.               I agree with Mr Kotas that this finding does not automatically mean the appellant succeeds in this challenge. The Judge's examination of the medical evidence in the preceding paragraphs has not been shown to be infected by arguably legal error. The Judge had the benefit of seeing and hearing oral evidence being given and while some of the terminology adopted by the judge in the decision (such as 'preposterous') may not be the type of normal judicial language, that does not of itself warrant interfering with the decision.

33.               The Tribunal have been cautioned when considering whether a First-tier judge erred in law by not making its own evaluative judgment as to whether the requisite threshold was met - see McCombe LJ at [28] to [33] of Lowe v The Secretary of State for the Home Department [2021] EWCA Civ 62. It matters not whether another judge would have come to the same decision. The question is whether the decision reached is one reasonably open to this Judge on the basis of the evidence.

34.               In relation to the question of whether the Judge erred in assessing whether family life recognised by Article 8(1) exists is infected by material error I find the appellant has failed to establish that it is to a sufficient degree to warrant the Upper Tribunal interfering any further in relation to that aspect of the appeal.

35.               The nature of the ties between the appellant and his mother, and Dr Stevens will, however, form part of the appellant's private life, which is also a protected right recognised by Article 8(1). The strength of that private life is recognised in the evidence that was relied upon by the appellant in support of the claim of the existence of family life.

36.               Had the Judge said that family life recognised by Article 8 did not exist and left the decision at that, there would have been clear legal error. What the Judge does however, from [36], is find as follows:

 

36. If I had found that family life did exist I also would have gone on to refuse the appeal based upon the issue of proportionality. The Appellant is an adult male whose mental health, in my view, does not prevent him from living separately from his mother and stepfather, or finding work as he has done before. He has overstayed in the United Kingdom and cannot meet the Immigration Rules. On the facts as I have found that there are, no exceptional circumstances which would tip the public interest in his removal in his favour. There is a clear public interest in the Appellant being removed and that is the maintenance of effective immigration control.

 

37. I also reject the claim the Appellant satisfied 276ADE for the reasons already given. It is clear under 117B of the Immigration Act 2014 little weight can be given to a private life developed when the Appellant's status is precarious. Absent any exceptional circumstances, the Appellant's appeal on the grounds that private life also fails.

 

37.               An important point to note in relation to the weight to be given to a private life is that whilst not an overstayed the appellants status has always been precarious.

38.               In the alternative; in TZ (Pakistan) it was found that little weight will be attached to family life developed at a time the appellant's immigration status was precarious. Therefore, even if it could be argued that since the appellant had returned to the UK the fact he lived in his mother's home, was supported by his mother and stepfather, which would have been a matter of necessity, demonstrated family life recognised by Article 8 existed, this would not assist the appellant as the weight to be given to such family life and the recognition of the fact the appellant's status was precarious and that there was no reason he could not continue his life in the USA as he had done before, would not be enough to outweigh the public interest relied upon by the Secretary of State.

39.               The appellant has never had settled status in the United Kingdom which his why his status is precarious. The Judge's assessment this is so is unarguable.

40.               The Judge undertook the necessary balancing exercise, and the conclusion having done so that there was insufficient on the scales in relation to points in favour of the appellant to outweigh the points taken by the Secretary of State has not been shown to be a finding outside the range of those reasonably open to the Judge.

41.               Whilst the appellant disagrees with the assessment and wishes to remain in the United Kingdom, as do the other family members, that is not the issue in this appeal. I find the appellant has failed to establish legal error material to the decision to dismiss the appeal sufficient to warrant the Upper Tribunal interfering any further in this matter. Any identified error made is not material to the decision to dismiss the appeal.

 

Decision

 

42.               There is no material error of law in the Immigration Judge's decision. The determination shall stand.

 

Anonymity.

 

43.               The First-tier Tribunal made no order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

 

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

Signed.......................................................

Upper Tribunal Judge Hanson

Dated 15 November 2021