Our Human Rights Argument Wins the Day

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
13 October 2016

This October we had another victory in the First Tier Tribunal. The appellant, a citizen of Sudan, is a Coptic Christian who made an application to remain in the UK under paragraph 276ADE of the Immigration Rules. She did not seek asylum, but argued that to remove her from the UK would breach her rights under Article 8 ECHR because of the relationship between her and her family members, specifically her daughter who was granted refugee status and her grandsons who have autistic spectrum disorder (read more on the human right articles).

There was no Presenting Officer present at the hearing for “operational reasons” and bearing in mind that it was the second time that the Home Office representative did not attend, the Judge considered it in the interests of justice to continue hearing the appeal.

Under paragraph 276ADE a person of the age of the appellant who has lived in the UK for less than 20 years must show that “there would be very significant obstacles to the applicant’s integration into the country to which she would have to go if required to leave the UK”. The burden of proof is on the appellant to demonstrate that the requirements of the Immigration Rules are satisfied and the standard is “the balance of probabilities”. The appellant lived in Sudan all her life before coming to the UK, was married and had two children.

The Immigration Judge accepted that she is a Coptic Christian and accepted that Coptic Christians suffered harassment in Sudan and that the country expert, Mr Verney described the problems adequately. She described incidents in which she suffered when in Sudan and Mr Verney stated that living alone is not a practical option for elderly, single women in Sudan and there are significant risks of harm as well as hardship. The appellant also had health problems, but the appeal was not successful under 276ADE because it was concluded that whilst the appellant will have difficulties as a single woman who is a Coptic Christian, she will be returning to the land in which she has lived the overwhelming majority of her and to which she has family and cultural ties.

It was considered that taking everything together, she will not suffer very significant obstacles to integration back in Sudan. However, with regard to Article 8 ECHR the immigration Judge allowed the appeal because he accepted the evidence that the appellant her children, and her grandchildren formed a family life and that the circumstances are capable of constituting compelling circumstances which are not sufficiently recognised by the Immigration Rules. The best interests of the autistic grandchildren were a primary consideration and it is in their best interests that he appellant remains in the UK with them.

This is due to the bond she has with them and the way she assisted the parents to cope with the very difficult situation they face in having two severely disabled, children who required one to one attention. In considering proportionality and whether the interference with the appellant’s right to respect for family life is justified, he considered the factors set out in section 117B Nationality Immigration and Asylum Act 2002 and confirmed that the strongest feature of the public interest is the public interest and maintenance of effective immigration control, but her family life outweighed the public interest. There is a family life which cannot reasonable be expected to be enjoyed elsewhere and her removal was considered to be prejudicial to the family life enjoyed between her and her daughter and her grandchildren, in a manner sufficiently serious to amount to a breach of Article 8 ECHR. The Immigration Judge found that there are compelling circumstances which require the grant of leave outside the Rules and the appeal was allowed.