Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00661/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 16 February 2017
On 21 February 2017
Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

ROSE DOMINIC NAGANDILE
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mrs J Moore, of Drummond Miller, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of Tanzania, born on 25 June 1976. She appeals against a determination by First-tier Tribunal Judge Handley, promulgated on 28 September 2016, dismissing her appeal against refusal of leave to remain in the UK on human rights grounds.
2. The appellant's case was based on her relationship with her husband, Joseph Bwire, a citizen of Burundi whose date of birth is recorded as 1 January 1980. He has indefinite leave to remain in the UK.
3. The judge said at paragraph 29 that the sponsor (the appellant's husband) was not a "prohibited immigrant" under the Tanzanian Immigration Act 1995, and that he might go with the appellant to Tanzania, where he had spent some years earlier in his life. His work experience in the UK would be of value to him. He might go with the appellant to await the outcome of an entry clearance application. The judge concluded that there were "no insurmountable obstacles which would prevent them from returning to Tanzania".
4. The main ground of appeal to the UT is that the judge erred by failing to take account of evidence and submissions that the immigration law of Tanzania would not permit the sponsor to enter or remain in Tanzania.
5. The appellant had produced evidence of Tanzanian law and information from a Tanzanian lawyer. She had relied on Mirza [2015] CSIH 28 for the proposition that it was not to be presumed that another country accorded to its nationals a right which the immigration rules did not accord to British nationals, namely an unqualified right to be joined by a non-national spouse. The appellant had also referred to Home Office guidance on "insurmountable obstacles", which included the example of inability to gain entry to the country in question.
6. The grounds end by saying that the judge "materially erred by focusing incorrectly on article 8 outside the rules, when the submissions and evidence were on the sponsor's inability to live in Tanzania ? an insurmountable obstacle to family life taking place there".
7. Mr Matthews accepted that there had been evidence and submissions on the obstacles to the establishment of family life in Tanzania; that they were not reflected in the decision other than by brief reference at paragraph 29, which was inadequate; and that this was an error of law requiring the decision to be set aside and remade.
8. Parties agreed that remaking should proceed immediately in the UT.
9. The decision of the FtT said nothing about the alternative of family life being carried on in Burundi.
10. Where parties come from different countries, an appellant may succeed only if there are insurmountable obstacles to family life being carried on in each of the countries which might be available to them.
11. Representatives therefore further agreed that the remaking of the decision needed to consider both Tanzania and Burundi.
12. The appellant has conveniently compiled the materials by which she seeks to make her case into one bundle. Items 1 - 3, "general", and 8 - 12, "evidence in respect of visa requirements for Tanzania", were before the FtT. Items 4 - 7, "updated objective evidence in respect of Burundi", were admitted without objection by the respondent. No other materials about Burundi were referred to by the respondent.
13. Item 1 is information from a Home Office Country Policy and Information Team on whether a Burundian husband is permitted to reside in Tanzania with his Tanzania wife, and about Tanzanians' ability to live in Burundi. No definitive information has been found on either question. Burundian citizens require a passport to enter Tanzania "and would likely need a residence permit once living in the country. It is also possible for a foreigner residing in Tanzania to apply for citizenship in due course? The final decision whether a foreign national is allowed to enter Tanzania is made by an immigration officer ?". The website of the Burundian Embassy in London states that Tanzanians do not need a visa to enter, only a passport.
14. Item 2 is Home Office guidance on "insurmountable obstacles", in which the appellant highlights the following re Tanzania:
"A very significant difficulty which would be literally impossible to overcome ? for example, because [the applicant's partner] would not be able to gain entry to the proposed country of return";
and the following re Burundi:
"The security situation in the country of return. In some circumstances there may be particular risks to foreign nationals which extend to the whole of the country of return."
15. Item 9 is advice from a lawyer in Tanzania: "In order to qualify for a resident permit class B [the sponsor] is required to secure employment in Tanzania. Then he can apply for a work permit. If approved, then a residence permit class B. Tanzanian immigration law does not have a category for men who marry Tanzanians that allows them to reside in Tanzania."
16. Item 12 is the Tanzania Immigration Act 1995.
17. Item 9 is information from the Tanzanian Ministry of Home Affairs, Immigration Services Department, regarding the residence permits governed by the Immigration Act and by regulations.
18. It is agreed that the sponsor (as found by the FtT judge) does not appear to be a "prohibited immigrant" under the Act.
19. Residence permit class A is available to persons other than prohibited immigrants who intend to enter or remain and engage in trade, business, profession, agriculture, animal husbandry, prospecting of minerals are manufactured. They are required to produce personal and company information including evidence of the capital and premises of their company or business.
20. Residence permit class B "is issued to a foreigner other than a prohibited immigrant who has obtained specified employment in Tanzania and the Commissioner General of Immigration Services (subject to recommendation by the Director of Employment) is satisfied that he possesses qualifications or skills necessary for that employment and that his employment will be of benefit to Tanzania". The application has to be made from outside the country.
21. Residence permit class C is for foreigners intending to enter and reside in Tanzania for purposes other than those specified for the grant of permits class A or B. These include students, researchers, volunteers, persons attending cases in courts of law, persons who were formerly residents and are about to leave the country, and persons attending medical treatment in hospitals.
22. There is no category of a spouse visa in the immigration law of Tanzania. As Mr Matthews submitted, nothing turns on that; the question is whether on the evidence the sponsor would be able to reside there.
23. It seems likely that the sponsor could enter as a visitor, probably for an initial period of 3 months (page 30 of the bundle).
24. It was agreed that the sponsor was not likely to come into any of the categories within class C.
25. The submission for the Home Office regarding Tanzania was that there was nothing to show that the sponsor might not set himself up so as to succeed within class A, although class B did seem more likely. He has consistently worked in the UK, and appears formerly to have worked in Tanzania. Even if that was unofficial, it was evidence that he could support himself there. There was nothing against the possibility that he might enter as a visitor, obtain a job offer, re-enter and reside within class B.
26. The submission by Mrs Moore regarding Tanzania was that although the sponsor could probably enter as a visitor, he would be unable to reside in the longer term in any category. He has no specialised skills or formal qualifications, and works at the level of an unskilled labourer. He has a consistent employment history in the UK, but working as many hours as he can, he falls just short of the minimum income requirement in the rules. There was no realistic possibility that he might set up a business enterprise of the type envisaged by class A. It was clear that class B was not intended for employment of the hard-working but unskilled. It was more analogous to tier 2 of the UK points based system. It was unrealistic to expect that the sponsor would obtain a job offer at a level likely to satisfy the Commissioner General of Immigration Services and the Director of Employment in Tanzania. He would not be able to reside there lawfully for more than the 3 months available on a visit visa.
27. If the sponsor cannot lawfully gain residence in Tanzania, that amounts to an insurmountable obstacle in terms of the rules.
28. Residence permits in classes A and B are not aimed at the level of the general unskilled worker. Although particular financial limits are not stated in the list of requirements, they are of a nature which shows that the aim is to attract businesses of some financial substance and employees at professional or highly skilled levels. The list at paragraph (x) of class B gives as examples, "Accountants, engineers, architects, surveyors, doctors, teachers, nurses, pilots, employees of security companies, executive personnel in financial institutions?". That is not framed as an exhaustive list, but it is plainly illustrative.
29. On this issue, I therefore prefer the submissions for the appellant.
30. As to Burundi, the position of the respondent was that the appellant is legally able to go there; the sponsor was not granted recognition as a refugee (he appears to have been granted leave under the "legacy programme") so there is no reason of principle why he cannot return; and while the general situation is difficult, it is not so dire as to constitute an insurmountable obstacle.
31. Mrs Moore submitted that while the level of difficulty to be shown was high, the terms of the respondent's guidance were such that it did not have to equate to the requirements for refugee or humanitarian protection. She said that the appellant, being lighter-skinned and an evident foreigner, might be more vulnerable, and that the background evidence showed a recent major breakdown of civil society, lawlessness, and general violence.
32. There appears to be no formal obstacle to the appellant and sponsor establishing their family life in Burundi. The question is whether the general country situation amounts to an insurmountable obstacle.
33. As to whether being lighter-skinned and foreign might make a difference, the violence in Burundi arises from the government taking a ruthless grip on power and crushing all opposition. There was no reference to evidence that being lighter-skinned or being identified as Tanzanian would make life more dangerous.
34. Evidence at item 8, dated 22 November 2016, from Human Rights Watch, describes the government's brutal crushing of any form of dissent over the previous year and a half. There have been numerous killings, disappearances, abductions, torture, rape, and arbitrary arrests. Armed opposition groups are also guilty of atrocious behaviour. The government has reacted with hostility to statements and initiatives by the United Nations, the African Union, the European Union and other governments and international institutions. Major donors have suspended direct budgetary support, although some have maintained humanitarian assistance. The office of the Prosecutor of the International Criminal Court announced the opening of a preliminary examination, following which Burundi withdrew from the ICC. In December 2015 the UN Human Rights Council sought to open an enquiry, following which the Burundian government suspended cooperation with the UNHCR. The African Union authorised deployment of a 5000 strong protection mission, but the Burundian government rejected this, saying it would be considered it an invading and occupying force, and the proposal was not pursued.
35. The appellant and sponsor claim no political alignment or motivation, and to that extent would not be at any greater risk than anyone else in Burundi, but the general violence and breakdown of law and civil society in Burundi is severe. A 2017 report on Burundi, also by Human Rights Watch, says that more than 325,000 Burundians have fled the country since 2015, mostly to Tanzania (page 15 of the bundle). Those who have taken flight cannot all have been voluntary political actors.
36. Paragraph EX.2 of appendix FM of the rules defines insurmountable obstacles as "the 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".
37. It is plain that the appellant and sponsor would face difficulties and hardship in Burundi. These can readily be classified as significant and serious. The intensifier "very" in each case is not superfluous but indicates the high level required. The evidence about Burundi in the last few years, items 4- 8 of the bundle, is unremittingly negative. It shows near total breakdown of ordinary civil society and a level of violence leading to the flight of ordinary citizens in large numbers. I assess that as reaching the level of an insurmountable obstacle, as defined in the rules.
38. The decision of the First-tier Tribunal is set aside, and remade as follows: the appeal, as brought to the FtT, is allowed under the immigration rules.
39. No anonymity direction has been requested or made.

20 February 2017
Upper Tribunal Judge Macleman