Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00056/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 3 April 2017
On 6 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

kelly [V]
(NO ANONYMITY ORDER MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Mupara of Counsel
For the Respondent: Mr Diwyncz a Home Office Presenting Officer

DECISION AND REASONS
Background
1. The Respondent refused the Appellant’s application for leave to remain on 16 December 2015. Her appeal against this was dismissed by First-tier Tribunal Judge Lloyd-Smith (“the Judge”) following a hearing on 19 September 2016.
2. The key issues in the case were;
(1) whether there is any public interest in requiring the Appellant to leave the United Kingdom to apply for entry clearance from abroad given the likelihood that such an application will be successful, and if so
(2) whether there were insurmountable obstacles to the family life of the Appellant and her husband (Darren [S]) continuing outside the United Kingdom which could not be overcome or would entail very serious hardship for either of them (Appendix FM- EX 1(b) of the Statements of Changes in Immigration Rules HC395).
3. In summary the Appellant claimed that she should be allowed to stay as;
(1) they fulfilled the immigration rules but for her status,
(2) Mr [S] was undergoing fertility treatment which she and no one else could administer due to its sensitivity and his own health issues,
(3) he would become irreversibly ill if it stopped,
(4) he could not join her in the USA even for a short period as he cared for his ill parents which no one else could provide even in the short term, and
(5) the Respondent had caused delay which may be repeated.
The grant of permission
4. Upper Tribunal Judge Perkins granted permission to appeal (5 January 2017) saying;
“the grounds clearly identify arguable errors of fact. It is less clear that they are material but a balancing exercise carried out with the wrong weights could be unsound.
My biggest concern is the proper consideration of the rule in Chikwamba. It might be that the decision is of little assistance because of the statutory requirements of s117A, B and C of the Nationality, Immigration and Asylum Act 2002 but it is arguable that the Judge’s consideration of the case should have been explained in more detail than has been the case.”
Appellant’s position
5. It was summarised in the skeleton argument (3 April 2017) as follows;
(1) given the findings made and Respondent’s concessions, the application is certain to succeed from abroad. There is no public interest in requiring that (Chikwamba v SSHD [2008] UKHL 40, Hayat (nature of Chikwamba principle) v SSHD [2011] UKUT 00444), and SSHD v Hayat and Treebhowan [2012] EWCA Civ 1054),
(2) there has been protracted delay by the Respondent due to the poor quality of the assessments which led to Judicial Review proceedings and a finding that the Respondent had ignored evidence and simply re-dated an unlawful decision. The 3 year delay has diminished the public interest. The Appellant is a citizen of the USA and native English speaker. She is well integrated here and not a burden on the taxpayer,
(3) temporary separation is disproportionate even for a few weeks as it would interfere with the fertility treatment Mr [S] is having as she administers it into his buttocks. Given the Respondent’s lack of due care and diligence so far in this application there is a real risk it will again be mishandled leading to a lengthy separation,
(4) there are exceptional circumstances in that Mr [S] is his mother’s carer and cannot be expected to travel to the USA, and no one can be expected to administer his injections.
6. It was additionally asserted in the application to the First-tier Tribunal (1 October 2016) that;
(1) the Judge wrongly concluded that Mr [S] parents transferred their property to him, appointed him as their power of attorney, and designated him as his mother’s carer to make them look more reliant on him thereby making his presence here imperative. This was factually inaccurate as the property transfer took place in December 2010 which was 2 years before the couple met, the power of attorney was given in September 2013 which was 2 years before the refusal letter was written, and he became his mother’s carer in April 2015 which was 7 months before the refusal letter was written,
(2) the Judge wrongly concluded that Mr [S] had not established he was his mother’s carer as National Insurance records and evidence from the GP clearly identified this,
(3) the Judge wrongly concluded that the relationship started and developed whilst her immigration status was precarious. However, it began online in July 2012 while she was in the USA and he was here. They became engaged while she was here on a Visit Visa and she then returned to the USA. They married when she was not in breach of immigration rules,
(4) the Judge has not explained why the Appellant’s success in Judicial Review proceedings to end her detention and stop her removal meant she had no legitimate expectation of the application succeeding,
(5) the Judge wrongly relied on LM (article 8 - married appellant -proportionality) Jamaica [2010] UKUT 379 (IAC) given the different factual matrix, and did not give the opportunity of commenting on it,
(6) the Judge failed to consider the impact of temporary or permanent separation on Mr [S] father’s mental health, and
(7) the Judge failed to give cogent reasons why Mr [S] may not be best placed to care for his parents given the medical evidence that 24 hours a day care is not practicable for an outside caring agency and his parents are far better supported and cared for from within the family.
7. It was additionally asserted in the application to the Upper Tribunal (21 November 2016) that,
(1) the temporary suspension of Mr [S]’ fertility treatment will irreparably damage his health given the medical evidence there will be deteriorating depression, muscular weakness, osteoporosis, weight gain and lethargy, and
(2) the family life Mr [S] has with his parents has further elements of dependence which go beyond normal emotional ties (Kugathas v SSHD [2003] EWCA Civ 31.
8. It was additionally submitted orally that,
(1) there may be no public interest in removing an applicant who would be granted leave to enter even though they had resided here unlawfully (Agyarko v SSHD [2017] UKSC 11 at [51]),
(2) a few weeks separation is disproportionate,
(3) whilst medical support can be provided professionally for the injections by the Appellant, Mr [S] would have to go to hospital every day but he fears crowds, and
(4) there was no evidence that Mr [S] mother could not be provided for professionally but the medical evidence indicated that it was not practicable 24 hours a day.
Respondent’s position
9. Mr Diwyncz relied on the Rule 24 notice (7 February 2017) which asserted that the Judge made findings open to her on the evidence that there were no significant obstacles to family life continuing outside the United Kingdom. The Judge applied a belt and braces approach even though there were no compelling circumstances to require her to consider article 8 and consequently did so. Chen v SSHD (appendix FM- Chikwamba - temporary separation – proportionality) IJR [2015] UKUT 00189 (IAC) noted that Chikwamba involved children and the Respondent is not obliged to consider whether an application would be successful.
Discussion
10. Many of the grounds in the various documents and submissions are interlinked and can be grouped together for ease of reference.
Ground 1 (Chikwamba)
11. Whilst this is really the key point as identified by Judge Perkins, to an extent it is informed by the Judge’s consideration of the other grounds. I will therefore return to this.
Ground 2 (Delay)
12. The Judge noted the immigration history at [2] of her decision the relevant parts of which are that;
(1) the couple met on line in May 2012,
(2) they met in person in the USA in November 2012,
(3) she came here for 10 days in April 2013,
(4) she returned on 2 July 2013 on a 6 month visit visa (and has remained since then),
(5) she applied for asylum and leave to remain under the immigration rules and on article 8 grounds on 18 December 2013,
(6) she was detained and had her application refused on 11 April 2014,
(7) she issued Judicial Review proceedings on 2 May 2014 that led to a stay on removal on 8 May 2014,
(8) the original decision was withdrawn on 3 September 2015,
(9) it was refused again on 16 December 2015.
13. The Judge referred to the Judicial Review proceedings [7], noted Mr [S]’ father’s evidence that “…the Home Office had “robbed” him of the last 3 ½ years of his life because he has been unable to go on holiday to Spain…” [10], and noted the re-consideration of the claim by the Respondent by simply re-dating a refusal letter [12]. The Judge found that [16 (a)] “…the asylum application was an attempt to make an application whilst in this country and to gain leave in circumstances that were clearly unfounded.”
14. The suggestion that the delay had affected Mr [S]’ father’s wish to go on holiday to Spain [10] is plainly of such inconsequence that the Judge was entitled to ignore it as being frivolous.
15. There is nothing to suggest that the delay (such as it was) was the result of a dysfunctional system that yielded unpredictable, inconsistent and unfair outcomes (EB (Kosovo) v SSHD [2008] UKHL 41). It is asserted that the delay is 3 years. That is not correct as it incorporates the entire appeal period as well and is not the fault of the Respondent, or indeed the Tribunal. The initial period of 3 months until March 2014 was caused by a plainly bogus asylum claim. It was a minimal period of time in any event. The only possible concern can relate to the period April 2014 to December 2015. That is not a significant period and certainly not extreme. The only consequence of the delay is that the couple have started IVF treatment and developed their relationship. These are not disadvantageous consequences (eg R (app Hailemariam) v SSHD [2009] EWHC 468 (Admin)).
16. I am satisfied that the failure by the Judge to consider the delay in relation to public interest other than in a peremptory fashion was not a material error of law given how weak the argument was. The fact that the Appellant speaks English and is not an economic burden on the state is not relevant to the issue of delay itself.
Ground 3 (Fertility treatment)
17. The Judge noted the evidence that the Appellant was required to be here for the fertility treatment to work [9] and noted the medical evidence that fertility treatment is available in the USA [15 (b)]. I reject the submission to me that her presence is necessary for the intrusive and intimate injections as there was no evidence it would not be available or that if he had anxiety regarding travel that appropriate support could not be given either by a district nurse visiting to give it or by him having support in travelling to the hospital. I note he attended the hearings before the Judge and me. Travel is therefore possible.
18. I note that the medical evidence from Dr Merza (5 August 2016) as requested by Mr Mupara. He/she was asked “What is the long term impact on Mrs V’s chances of conceiving naturally if the couple were to be separated for a period of 6 to 12 months.” The reply was that “Obviously for them to achieve pregnancy regular intercourse would be important and if they were to go for any fertility treatment such as IVF then they would need regular visits to the fertility clinic and review by the Specialists there. Hence any separation even for less than 6 months would limit their chances.”
19. The vagueness of the reply speaks volumes which is not the Doctors fault as he/she (correctly) only answered the question asked. It is blindingly obvious that regular intercourse increases the chance of pregnancy but equally true that every natural pregnancy is due to a single act. There would plainly be no problem with a few hours separation and there was no evidence to suggest how much the chance of falling pregnant would reduce if the separation was a few days or weeks and how that may be ameliorated. The evidential lacuna created by the Appellant in the time frame requested meant that the Judge was entitled to make the findings she did. In addition, this is not medical treatment to treat an ailment as in for example GS (India) v SSHD [2015] EWCA Civ 40 but elective treatment to have a family.
20. There is no evidence whatsoever that the Entry Clearance Office in the USA would mishandle an application. The submission in that regard was entirely without foundation.
21. I am satisfied that the failure by the Judge to consider this in any more detail than she did was not a material error of law given how weak the argument was.
Ground 4 (Parental care)
22. The Judge considered the care Mr [S] gave to his mother [8, 9, and 10]. Whilst it is correct that the Judge cast doubt on who was the carer, she noted the care given. I am not satisfied that the Judge materially erred in relation to who was the carer as she was entitled to conclude that whether he was or was not the carer, “there was nothing in the evidence that suggested that the care offered by the sponsor was unique or could not be undertaken by someone else” [15 (d)]. I am satisfied that this was a finding open to the Judge on the evidence and the application is nothing more than a disagreement with this. There was no material error of law.
23. I am satisfied that Judge was entitled to note that Mr [S] may not be best placed to care for his parents [15 (d)] given the medical evidence of his own difficulties [15 (a)]. The fact that 24 hours a day care was not practicable for an outside caring agency and his parents are far better supported and cared for from within the family, does not mean that 24 hours a day care was necessary or that if it was it could not be provided in a care home. The fact that they may be better cared for by family does not mean that appropriate care could not be provided by someone else [16 (f)]. The evidential lacuna created by the Appellant regarding the care provision meant that the Judge gave adequate reasons for her conclusions and did not have to give reasons for reasons or spell out obvious points. There was no material error of law.
24. Contrary to that which was asserted, the Judge did note Mr [S]’ father’s health [15 (d)]. She noted the evidence from the father that “if their son did leave they would get “help in””. She noted his depression. There was no material error of law.
Ground 5 (Parental dependency)
25. The Judge was plainly wrong regarding the interrelationship between the transfer of property and power to Mr [S] and the development of the relationship between him and the Appellant [16 (f)]. This was not however a material error of law as the reality is that, as she was entitled to find, his presence here was not necessary for them in any event.
26. The Judge noted the family life they had and the mutual support they provided [8, 9, 10, 15 (d), 16 (d)]. The Judge accepted that there was family life and did not within that delineate the Appellant out from his parents [20, 21, 22]. Indeed, she specifically refers to “all the family members” [22]. She plainly accepted that there were elements of dependency that went beyond normal emotional ties (Kugathas) as otherwise she would have excluded them.
27. There was no material error of law.
Ground 6 (Relationship developing while status was precarious)
28. The Judge considered the development of the relationship [16 (e)]. It is clear that the couple initially met on line while the Appellant was in the USA and progressed during mutual visits. The development from 2 July 2013 was while her leave was precarious as she was initially only on a visit visa, and then on s3C Immigration Act 1971 leave. The development of the relationship was what the Judge was considering, not its commencement. She was correct to conclude as she did. There was no material error of law.
Ground 7 (Legitimate expectation she could start a family here [16(e)])
29. This ground is nonsense. The fact that there was success in Judicial Review proceedings does not mean that an application will be successful, merely that it will be re-considered. There was no material error of law.
Ground 8 (LM)
30. The Judge considered LM [15 (c)] only in the context that “the benefit receipts of the sponsor do not tip the balance in his favour”. It was a factually correct assertion and one open to the Judge. There was no material error of law.
Ground 1 again (Chikwamba)
31. The Judge did not have the benefit of the clarity provided within the Supreme Court’s decision in Agyarko. This considers numerous authorities. I will not repeat it here but will extract some illuminating guidance.
“42. In Jeunesse, the Grand Chamber identified, consistently with earlier judgments of the court, a number of factors to be taken into account in assessing the proportionality under article 8 of the removal of non-settled migrants from a contracting state in which they have family members. Relevant factors were said to include the extent to which family life would effectively be ruptured, the extent of the ties in the contracting state, whether there were "insurmountable obstacles" in the way of the family living in the country of origin of the non-national concerned, and whether there were factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (para 107).
43. It appears that the European court intends the words "insurmountable obstacles" to be understood in a practical and realistic sense, rather than as referring solely to obstacles which make it literally impossible for the family to live together in the country of origin of the non-national concerned… "Insurmountable obstacles" is, however, the expression employed by the Grand Chamber; and the court's application of it indicates that it is a stringent test.
44. … The expression "insurmountable obstacles" is now defined by paragraph EX.2 as meaning "very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner…
45. … leave to remain would not normally be granted in cases where an applicant for leave to remain under the partner route was in the UK in breach of immigration laws, unless the applicant or their partner would face very serious difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship. Even in a case where such difficulties do not exist, however, leave to remain can nevertheless be granted outside the Rules in "exceptional circumstances", in accordance with the Instructions: that is to say, in "circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate".
48. … If the applicant or his or her partner would face very significant difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship, then the "insurmountable obstacles" test will be met, and leave will be granted under the Rules. If that test is not met, but the refusal of the application would result in unjustifiably harsh consequences, such that refusal would not be proportionate, then leave will be granted outside the Rules on the basis that there are "exceptional circumstances"…
50. … the fact that family life has been established by an applicant in the full knowledge that his stay in the UK was unlawful or precarious affects the weight to be attached to it in the balancing exercise.
51. … If… an applicant - even if residing in the UK unlawfully - was otherwise certain to be granted leave to enter, at least if an application were made from outside the UK, then there might be no public interest in his or her removal. The point is illustrated by the decision in Chikwamba…
52. It is also necessary to bear in mind that the cogency of the public interest in the removal of a person living in the UK unlawfully is liable to diminish - or, looking at the matter from the opposite perspective, the weight to be given to precarious family life is liable to increase - if there is a protracted delay in the enforcement of immigration control…EB (Kosovo).
53. … the reference in the instruction to "full knowledge that their stay here is unlawful or precarious" is also consistent with the case law of the European court, which refers to the persons concerned being aware that the persistence of family life in the host state would be precarious from the outset (as in Jeunesse, para 108). One can, for example, envisage circumstances in which people might be under a reasonable misapprehension as to their ability to maintain a family life in the UK, and in which a less stringent approach might therefore be appropriate.
54. … in cases concerned with precarious family life, it is "likely" only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8.
56. … Cases are not … to be approached by searching for a unique or unusual feature, and in its absence rejecting the application without further examination. Rather, as the Master of the Rolls made clear, the test is one of proportionality. The reference to exceptional circumstances in the European case law means that, in cases involving precarious family life, "something very compelling ... is required to outweigh the public interest", applying a proportionality test.
57. That approach is also appropriate when a court or tribunal is considering whether a refusal of leave to remain is compatible with article 8 in the context of precarious family life. Ultimately, it has to decide whether the refusal is proportionate in the particular case before it, balancing the strength of the public interest in the removal of the person in question against the impact on private and family life. In doing so, it should give appropriate weight to the Secretary of State's policy, expressed in the Rules and the Instructions, that the public interest in immigration control can be outweighed, when considering an application for leave to remain brought by a person in the UK in breach of immigration laws, only where there are "insurmountable obstacles" or "exceptional circumstances" as defined. It must also consider all factors relevant to the specific case in question, including, where relevant, the matters discussed in paras 51-52 above. The critical issue will generally be whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.
60. … the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test. "
32. This is not a case where the only matter on the Respondent’s side of the equation regarding public policy was requiring the Appellant to apply from abroad. It may well be that the financial and relationship requirements of the rules are met. However, the Appellant made a bogus asylum claim. There is a public interest in reducing the burden on the Respondent and consequently the public purse in them having to consider such claims. This is not therefore just a Chikwamba case, but one where the clarification in Hayat is important.
33. I am satisfied that the Judge was entitled to find on the facts that there were no insurmountable obstacles to the family life of the Appellant and Mr [S] continuing outside the United Kingdom which could not be overcome or would entail very serious hardship for either of them for all the reasons she gave. Mr [S] could have elective medical treatment in the USA or here. Mr [S]’ parents could receive such care as they required from professionals. The separation if he chose not to go with her may be temporary. There is nothing to suggest that the ECO in the USA would act in a capricious or slow manner. Family life had developed in the full knowledge of the precarious nature of the leave. The delay in the decision has not been lengthy particularly given the brevity of the relationship as at the date of the initial application and decision and was certainly not such as to diminish the public interest in removing people who waste public time and money with bogus claims. The criticisms of the Judge’s decision amount to nothing more than a disagreement with her and relied in part on irrelevant factors or a misunderstanding of what she had said.
34. The Judge was also entitled to find that there was nothing exceptional about this case, and there were no compelling circumstances such as to mean that there would be a violation of article 8. The Judge was entitled to find that it was proportionate to require the Appellant to leave the United Kingdom and apply from abroad for entry clearance even though, subject to any public policy considerations, her application was likely to succeed, and that there is nothing very strong or compelling about this case.
35. The fact that a different Judge may have made a different decision is irrelevant.

Decision:
The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.
I do not set aside the decision.

Signed:
Deputy Upper Tribunal Judge Saffer
5 April 2017