Herrera v The Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, a 65-year-old national of Country A, arrived in the UK on a visitor visa in November 1999 and later obtained student leave to remain, which expired in September 2002. Since then, the Appellant has remained in the UK without valid immigration status. In April 2013, he applied for leave to remain on private life grounds, but his application was refused by the Secretary of State in May 2014.

The Appellant appealed to the First-tier Tribunal (FTT), where a hearing was held in February 2015 before Judge Hembrough. The Appellant was unrepresented but assisted by a Mackenzie friend. The Respondent was represented by counsel. The FTT allowed the appeal in March 2015, finding the Appellant entitled to leave to remain under paragraph 276ADE(1)(vi) of the Immigration Rules. The Secretary of State sought and was granted permission to appeal to the Upper Tribunal (UT), which allowed the appeal and overturned the FTT's decision in July 2015. The Appellant then appealed against the UT decision to the Court of Appeal.

Legal Issues Presented

1. Whether the Appellant met the criteria under paragraph 276ADE(1)(vi) of the Immigration Rules, specifically whether he had "no ties" including social, cultural, or family ties with the country to which he would be returned.
2. Whether the Upper Tribunal erred in law by misapplying the relevant test and substituting its own assessment for that of the First-tier Tribunal.

Arguments of the Parties

Appellant's Arguments

• The Upper Tribunal incorrectly focused on whether the Appellant would face "very significant obstacles" to reintegration, which was the test under a later version of the rule not applicable to this case.
• The correct and relevant test was whether the Appellant had any remaining ties to his country of origin, and on that question the FTT had found in his favour.
• There was no legal flaw in the FTT's finding that the Appellant had no meaningful ties to his country of origin.

Respondent's Arguments

• The Upper Tribunal correctly identified that the FTT had not adequately considered the high threshold required by paragraph 276ADE(1)(vi).
• The FTT's findings were insufficient to satisfy the test, and the Judge had been unduly swayed by sympathy for the Appellant rather than focusing on the statutory requirements.
• The Upper Tribunal's decision to allow the appeal was justified based on the evidence and legal standards.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the relevant version of paragraph 276ADE(1)(vi), which required that an applicant aged 18 or over, having lived in the UK for less than 20 years, must have no social, cultural, or family ties with the country to which removal would occur. The court noted that the later version of the rule, requiring "very significant obstacles" to integration, was not applicable to this case.

The FTT had accepted the Appellant’s evidence that he had no meaningful ties to his country of origin, which included no property ownership, deceased parents, infrequent contact with siblings who could not support him, and a lack of cultural connection due to long absence. The FTT judge also found the Appellant had integrated well into UK life despite mental health issues.

The Upper Tribunal, by contrast, focused on the "very significant obstacles" test, which was not the relevant legal standard here, and concluded the FTT had not adequately explained its reasoning or appreciated the high threshold. However, the Court of Appeal found this to be a verbal rather than substantive error.

The court emphasized that the assessment under paragraph 276ADE(1)(vi) is a nuanced evaluative judgment, and different judges may reasonably reach different conclusions based on the evidence. The Court of Appeal found no legal error or perversity in the FTT’s decision and held that the First-tier Tribunal’s conclusion was one it was entitled to reach.

Holding and Implications

The Court of Appeal allowed the appeal and restored the decision of the First-tier Tribunal.

The direct effect of this decision is that the Appellant’s leave to remain under paragraph 276ADE(1)(vi) is reinstated. The Court did not set new precedent but reinforced the principle that appellate tribunals must respect the evaluative judgments of first-instance tribunals, particularly when those tribunals have heard oral evidence. The decision underscores the importance of applying the correct version of legal tests and cautions against conflating different statutory criteria.