IA179892014

Furthermore, Ms Harris submitted that the Secretary of State's submissions were a mere disagreement rather than highlighting an approach outside the remit of what the judge was entitled to do or find. All of the information given in the witness statements before the judge was accepted and the Presenting Officer had accepted that the question of adoption was not in issue and it seemed to be accepted that the Claimant's parents and siblings were who they claimed to be. Regardless of financial dependency, there is emotional dependency anyhow which remains ongoing. Concerning section 117B, Ms Harris contended that paragraph 50 demonstrates that the judge has regard to the considerations she is required to and nothing therein shows the judge is deriving a right for the Claimant to remain solely on the basis of section 117B considerations. Finally, concerning private life, the judge found arguably good grounds for granting outside the Rules and the fact of little consideration of private life does not undermine the position concerning family life which still resulted in success. In short, Ms Harris submitted that the appeal amounted to a disagreement with the factual analysis falling well below the standard set at [90(2)] in the judgment of Lord Justice Brooke in R (Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982 and did not amount to an error of law. In response to my query concerning the living arrangements, Ms Harris confirmed that the Claimant was living with her family as confirmed in oral evidence before the First-tier Tribunal.

I enquired of both parties whether they wished to address me on the relevance if any of the most recent reported decision of the Upper Tribunal concerning family life, namely that of Ghising (family life - adults - Gurkha policy) Nepal [2012] UKUT 160 (IAC) , wherein the Upper Tribunal discussed the leading authorities on family life at [48-62], including the judgment of the Court of Appeal in Kugathas .

In relation to that authority, Ms Harris asked me to note [48] onwards and [54] in particular, regarding Kugathas at [17] where Lord Justice Sedley confirmed that dependency is not limited to 'economic' dependency. She also asked me to note [56] concerning the weight to be given to Kugathas but submitted that in any event the Claimant met Kugathas according to the judge's decision. Finally, she asked me to note that [62] of Ghising confirms that the family life assessment is fact-sensitive and that there are exceptional facts here.

Ms Isherwood submitted that the Rule 24 reply does not address the grounds and Kugathas requires a case by case assessment, and there are a number of authorities addressing Article 8 where the immigration rules are not met and as stated in SS (Congo) at [33 and 55] there have to be compelling reasons why a person should be granted leave outside the rules, which the decision does not take into account. Finally, Ms Isherwood submitted that emotional ties could be defeated in a proportionality assessment when looking at the Appellant's position against that of the Claimant .

I asked both parties at the close of submissions whether they had anything further to add and both confirmed that they did not.

At the close of submissions, I indicated that I would reserve my decision, which I shall now give. I do not find that there was an error of law in the decision such that it should be set aside. My reasons for so finding are as follows.

In relation to the first ground (repeated at paragraph 4(i) above), family life does not surreptitiously or suddenly expire when a child turns 18 years of age, as noted by Sir Stanley Burnton in the recent decision of Singh & Anor v The Secretary of State for the Home Department [2015] EWCA Civ 630 at [24]. Here, at paragraphs 45-48, the judge made findings in light of well-trod authority and concluded that the Appellant has " much more than the normal, emotional ties". I find that the judge approached the fact-sensitive question of family life in an entirely appropriate and lawful manner, giving due consideration to all the relevant facts and in particular giving consideration to those facts stated to be more important than others by higher court authority before finding, with evidenced reasons, that family life was engaged. The assessment of the facts engaging family life are a matter for the fact-finding Tribunal having heard the evidence and considered all of the documentation before it on that issue.

In relation to the submission that the weight of not meeting the Immigration Rules gives weight to the Secretary of State's position (pursuant to [48] of Secretary of State for the Home Department v SS (Congo) [2015] EWCA Civ 387 ), this skews the interpretation of this passage in SS (Congo) somewhat. In the instant appeal, the Rules were not live in the appeal (as the Rules do not cater for family life save as set out in paragraphs 276ADE and Appendix FM). Therefore, the reliance upon SS (Congo) is misplaced in the present context. Notwithstanding that, the weight to be given to the public interest is given statutory voice in the form of section 117B(1) for all Article 8 matters arising before the Tribunals. The judge rightly assessed the relevant factors before her and her decision is compliant with the observation in Dube (ss.117A-117D) [2015] UKUT 90 (IAC) that not every subsection of section 117B need be examined explicitly in turn as what matters is substance not form. The judge independently assessed the evidence of family ties and all relevant factors going for and against the refusal decision but ultimately decided the issue in the Appellant's favour as she was unarguably entitled to do.

Finally, in relation to the private life issue, whilst the decision in this regard is robust, I find that the judge gave consideration to that life in the context of family life findings already made as to the quality of her private life overall, and the statutory presumptions at Part 5A of the 2002 Act. Having considered the nature and quality of the Appellant's life in the UK, nothing more was required of the judge. The decision is not devoid of reasoning. The reasons are proper, intelligible and adequate to sustain the conclusions drawn.

The grounds do not reveal an error of law such that the decision should be set aside.

The appeal to the Upper Tribunal is dismissed and the decision of the First-tier Tribunal is affirmed.

The appeal to the Upper Tribunal is dismissed.