AA (USA) v Secretary of State for the Home Department [2016] EWCA Civ 281

Case No C1/2015/3481[2016] EWCA Civ 281IN THE COURT OF APPEAL (QUEEN’S BENCH DIVISION)ON APPEAL FROM THE FIRST-TIER TRIBUNALVenue Royal Courts of JusticeStrandLondon, WC2A 2LLDate Tuesday, 23 February 2016
Before
LORD JUSTICE ELIAS
Between
AA (USA)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
DAR Transcript ofWordWave International LimitedTrading as DTI Global8th Floor, 165 Fleet Street, London EC4A 2DYTel No:  020 7404 1400  Fax No: 020 7404 1424Official Shorthand Writers to the Court
MR SIMON HARDING (instructed A Seelhoff Solicitors Ltd) appeared for Appellant for The Respondent did not appear and was not represented

Judgment (Approved)

[1]This is a renewed application for permission to appeal. It is brought on behalf of Amber Rose Arnold. She is a citizen of the United States of America, who was born on 14 April 1993. She made an application for indefinite leave to remain on 18 December 2012 in the basis that she is her mother’s carer.[2]The application was refused by the Secretary of State. The appellant did not meet the requirement in the rules then in force and the decision-maker considered there were no compelling or compassionate circumstances.[3]The basis of her case is that she looks after and cares for her mother, Lady Robben. There is also a stepfather and a brother, and the First-tier Tribunal found that they were capable of providing some care to Lady Robben, although it was plain, as the judge recorded, that the quality of care was better from the daughter than it would be otherwise.[4]The First-tier Tribunal judge recognised that there was family life between mother and daughter, notwithstanding that the daughter was an adult, and had to focus on the issue of proportionality. That is classically, of course, a decision for the judge with which appellate courts would be slow to interfere.[5]The judge concluded that it was proportionate to refuse the appellant leave to remain on this basis. He did not accept that the removal would make it impossible for Lady Robben to be properly looked after, although, as I said, he did recognise the quality of care would be less beneficial to her, nor did he think that it would be massively detrimental, as it was put, to the lives of the other family members if the daughter were refused their appeal.[6]He did, however, make one error, and the error was that in the course of his analysis he said that the appellant had come to the country on 19 July 2012 when in fact she had come a year earlier effectively in 2011. That was the focus really of the appeal to the Upper Tribunal before Deputy Upper Tribunal Judge McWilliam. It was said that it was a fundamental flaw in the analysis of the First-tier Tribunal court and that had the judge properly analysed the question of proportionality then the only sensible conclusion would have been that it was disproportionate to refuse the appellant indefinite leave to remain to look after her mother.[7]The judge considered this submission and he did not accept that the error made by the First-tier Tribunal was material. He noted that the First-tier Tribunal conclusion was adequately reasoned and he did not consider that the error would make a material difference to the outcome of the appeal. He said this:
“It is clear in my view that the Judge’s decision in relation to proportionality did not turn on her having been here since 2012 (as opposed to 2011). The findings in relation to the mother’s care needs are not infected by the error. The Judge took into account the appellant’s private life here outside caring for her mother. Unfairness was not raised in the grounds seeking permission, but for the first time in oral submissions…”
[8]In my judgment, that was a conclusion to which the deputy Upper Tribunal judge was entitled to reach. He had to focus on the care which was being provided in the future for the mother. He obviously understood that there was a close relationship between mother and daughter and that the quality of her life would be improved if the daughter were allowed to stay, but that is not sufficient to make the decision of the Secretary of State disproportionate. That was the finding of the Upper Tribunal judge, and I consider that he was fully justified in reaching that conclusion. It is not for this court to second guess decisions of the tribunals below. The question is whether they have made an error of law and in my judgment they have not.[9]There is the additional problem, which is that this is a second appeal test, and the issue arises whether there is a compelling reason to justify the appeal. I take the point from Mr Harding, and it is a point fairly made, that, whether or not there is a compelling reason, will depend upon the strength of the case. In other words, if there is a fundamental error by the First-tier Tribunal, it would be unjust to say that it is in reality a second appeal if the first appeal had simply had to put right that error. But in this case, for the reasons I have given, I do not think that there was this fundamental error and in those circumstances, though it is really a related point, there is no compelling reason either to independently allow this case to go for a full hearing.

Order

Application refused