Tribunal decisions

The decision

IAC-AH-SAR-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01916/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke-on-Trent
Decision & Reasons Promulgated
On 3rd April 2017
On 6th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

THE Secretary of State FOR THE Home Department
Appellant
and

SUKHVIR SINGH
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr C Bates, Senior Home Office Presenting Officer
For the Respondent: Mr R Rashid of Counsel instructed by Bhogal & Co Solicitors

DECISION AND REASONS
Introduction and Background
1. The Secretary of State appealed against the decision of Judge V A Lowe of the First-tier Tribunal (the FtT) promulgated on 24th November 2015.
2. The Respondent before the Upper Tribunal was the Appellant before the FtT and I will refer to him as the Claimant.
3. The Claimant applied for leave to remain on the basis of his family and private life with his spouse Vallvinder Lal, who is a British citizen and to whom I shall refer as the Sponsor. The couple married on 11th March 2014. The Claimant had been in the UK illegally since July 2008.
4. The application for leave to remain was made on 28th April 2015 and refused on 25th June 2015.
5. The Secretary of State accepted that the couple had a genuine and subsisting relationship, but did not accept that there were insurmountable obstacles to family life continuing in India and therefore the requirements of EX.1(b) of Appendix FM of the Immigration Rules were not satisfied.
6. The Secretary of State considered the Claimant’s private life with reference to paragraph 276ADE(1) of the Immigration Rules, noting that at the date of application he had lived in the UK for six years. It was not accepted that there would be very significant obstacles to his integration into India, the country of which he is a citizen.
7. The Secretary of State did not accept that there were any exceptional circumstances which would justify a grant of leave to remain pursuant to Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention) outside the Immigration Rules.
8. The Claimant’s appeal was heard by the FtT on 29th October 2015. The FtT after hearing evidence from the Claimant and Sponsor, and accepting that the couple were to undergo IVF treatment, found that this amounted to insurmountable obstacles to family life continuing in India, and allowed the appeal with reference to EX.1(b).
9. The FtT also found that the appeal should be allowed with reference to Article 8 of the 1950 Convention, outside the Immigration Rules, again placing very significant reliance upon IVF treatment.
10. The Secretary of State applied for permission to appeal to the Upper Tribunal contending that the FtT had committed a material misdirection in law when considering EX.1. The FtT had failed to give reasons as to why, not being able to continue with IVF in the United Kingdom, meant that there were insurmountable obstacles to family life continuing in India. It was contended that the FtT had not considered whether such treatment was available in India and it was submitted that the FtT had applied the incorrect test when considering EX.1(b).
11. It was also contended that the FtT had erred by assessing Article 8 on a “freestanding” basis. In the alternative if it was accepted that Article 8 should have been considered, the FtT should have first considered why the Claimant could not make a fresh application from India as the Sponsor’s partner. It was submitted that the FtT had erred when conducting a balancing exercise by failing to appreciate that the IVF treatment was one of choice and not of necessity. It was noted that the FtT had not allowed the appeal based upon private life, and therefore had not explained how it would be a breach of family life if the couple returned to India together. Permission to appeal was granted.
Error of Law
12. At a hearing before me on 6th October 2016 I heard submissions from both parties regarding error of law. The Secretary of State relied upon the grounds contained within the application. On behalf of the Claimant it was contended that the FtT had not erred in law, had considered all relevant factors including the relevant case law, and taken into account section 117B of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act).
13. It was submitted that the FtT had been entitled to find that because the couple were undergoing IVF treatment, this amounted to very significant obstacles which could not be overcome, or which would entail very serious hardship, and therefore the FtT did not err in law in allowing the appeal.
14. I found that the FtT had materially erred in law for the following reasons. The FtT had quite properly referred to Agyarko [2016] EWCA Civ 440. In that case the Court of Appeal had found that the mere fact that the Appellant’s husband was a British citizen, had lived all his life in the UK, had employment in the UK, and hence might find it difficult and might be reluctant to relocate outside the UK, could not constitute insurmountable obstacles to his doing so. The FtT correctly found, that there appeared to be nothing exceptional about the circumstances of the Claimant and the Sponsor, and the Sponsor had been fully aware of the Claimant’s lack of immigration status.
15. The facts of this appeal are not dissimilar to Agyarko, in that the Sponsor is British born, has lived all her life in the UK, and has employment here. The reason that the FtT gave for allowing the appeal related to the IVF treatment.
16. I found that the FtT had given inadequate reasoning as to why the fact that the couple had been granted funding for a six month cycle of IVF treatment meant that there were insurmountable obstacles to them continuing their family life in India. The FtT did not adequately explain why the possibility of undergoing IVF treatment amounted to insurmountable obstacles to family life continuing in India. There was no adequate consideration as to whether similar treatment would be available in India. If IVF was a relevant consideration, the burden would be on the Claimant to show that it was not available in India. The FtT had found that it was not known whether such treatment was readily available, apparently not taking into account where the burden of proof lay. I found the failure to give adequate reasons, in relation to insurmountable obstacles, amounted to a material error of law.
17. I also found that the FtT had erred when considering Article 8 outside the Immigration Rules. The Court of Appeal in SS (Congo) [2015] EWCA Civ 387 at paragraph 33 indicated that compelling circumstances would need to be identified to support a claim for a grant of leave to remain outside Appendix FM. At paragraph 29 of Agyarko it is stated that in cases involving applications for leave to remain outside the Immigration Rules on the basis of family life where no children were involved, and the family life was established in the UK at a time when the presence of one or other of the partners was known to be precarious, the test should be one of exceptionality. The FtT failed to properly apply section 117B(4) of the 2002 Act which states that little weight should be given to a private life, or a relationship formed with a qualifying partner, established by a person when that person is in the UK unlawfully. The FtT failed to explain why it was appropriate to allow the appeal pursuant to Article 8 based on family life, when section 117B(4) states little weight must be attached to the relationship.
18. Having set aside the decision of the FtT, I decided that the decision should be re-made by the Upper Tribunal and that it was appropriate to give the Claimant and Sponsor the opportunity to provide further evidence. I preserved the finding made by the FtT that the couple have a genuine and subsisting marriage.
Re-making the Decision – Upper Tribunal Hearing 3rd April 2017
Preliminary Issues
19. The Appellant attended the hearing. I ascertained there was no difficulty in communication between the Appellant and interpreter in Punjabi.
20. Mr Rashid advised that the Claimant and Sponsor would be giving oral evidence.
21. I ascertained that the Tribunal had received all documentation upon which the parties intended to rely, and that each party had served the other with any documentation upon which reliance was to be placed. The Tribunal had received the following documentation;
Respondent’s bundle with Annexes A–H and reasons for refusal letter dated 25th June 2015.
Appellant’s bundle comprising 151 pages.
Appellant’s supplementary bundle comprising 78 pages.
Background evidence supplied by Mr Bates relating to fertility treatment in India together with the case law, Treebhawon [2017] UKUT 00013 (IAC).
22. Mr Rashid submitted pregnancy notes relating to the Sponsor. He explained that he had only just received these notes which is why they were not contained in the bundle of documents. The nature of the application made by the Claimant was therefore somewhat different, in that the issue of IVF was no longer relevant, but the Sponsor was now pregnant. The pregnancy notes were inspected by the Tribunal and Mr Bates, and returned to Mr Rashid.
23. There was no skeleton argument. Mr Rashid confirmed that the issues to be decided by the Tribunal, related to whether or not insurmountable obstacles existed which would prevent the couple enjoying family life in India, and if that was not the case, reliance was placed upon Article 8 outside the Immigration Rules.
24. Mr Bates stated that it was accepted that the Sponsor is pregnant.
25. Both representatives indicated that they were ready to proceed and there was no application for an adjournment.
Oral Evidence
26. The Claimant gave oral evidence with the assistance of the interpreter, adopting his witness statements dated 21st October 2015 and 17th February 2017.
27. The Claimant was cross-examined. I have recorded all questions and answers in my Record of Proceedings and it is not necessary to reiterate them in full. The Claimant’s evidence is summarised below.
28. The Claimant had lived in the Punjab in India. He worked as a farmer on the family farm. He had friends in his village who became involved with drugs and violence and his father decided that he should leave India. He left in April 2008, an agent having been paid to facilitate his journey to the UK.
29. He arrived in the UK in July 2008 and found casual work. He entered the UK illegally and remained without leave. In April 2012 he met the Sponsor. They started a relationship and started living together in June 2013.
30. The Claimant told his family in India about this and they did not accept the relationship, as he is a Sikh, and the Sponsor Hindu.
31. The Claimant discovered that he had some cousins and relatives in the UK who he would see at weekends.
32. The Claimant and Sponsor married on 11th March 2014. It was a civil wedding service attended by family, relatives and friends. This was followed by a religious ceremony on 15th November 2014 at a Sikh temple.
33. The Claimant’s family disowned him because of his marriage.
34. The Claimant explained that the Sponsor is British born, and her mother, three brothers and two sisters all live in the UK. It would cause the Sponsor great hardship if he was forced to return to India.
35. In his second witness statement, the Claimant explained that the Sponsor set up her own business in January 2016 which is doing very well. He helps on a voluntary basis.
36. The Claimant has not spoken to his family since 2013.
37. In June 2016 it was discovered that the Sponsor was pregnant but very sadly she suffered a miscarriage. The Claimant confirmed that he and the Sponsor had undergone fertility treatment, with the result that the Sponsor is once again pregnant. This was discovered at the end of February 2017.
38. The Sponsor gave her oral evidence in English. She adopted her witness statements of 21st October 2015 and 17th February 2017. She was cross-examined. As with the Claimant, I have recorded all questions and answers in my Record of Proceedings and it is not necessary to repeat them here.
39. The Sponsor confirmed the evidence given by the Claimant in relation to their relationship. She stated that her family do not approve of the marriage and she is not allowed into the family home. She only has contact with her mother by telephone.
The Secretary of State’s Submissions
40. Mr Bates relied upon the refusal decision dated 25th June 2015. It was submitted that the evidence given by the Claimant and Sponsor did not show insurmountable obstacles to family life continuing in India. With reference to the Sponsor’s pregnancy, there was no medical evidence to show that she is unfit to travel. There are medical facilities in India.
41. I was asked to take into account the Claimant’s immigration history, that being his illegal entry into the UK and subsequent behaviour in remaining without leave. The couple had married knowing that the Claimant had no leave to remain in the UK.
42. Neither the Claimant nor the Sponsor had given accurate information as to their financial position. Mr Bates submitted that the Sponsor could travel to India with the Claimant, or alternatively, remain in the UK and support an entry clearance application from abroad.
The Claimant’s Submissions
43. Mr Rashid relied upon the documentary and oral evidence. I was asked to find both witnesses as credible. Mr Rashid relied upon a letter dated 6th February 2017 from Mr Samra, a consultant gynaecologist, who confirmed that the Sponsor was currently undergoing extensive fertility treatment and recommended that she did not travel outside the UK until the fertility treatment was concluded. If a pregnancy was achieved, the Sponsor would require further treatment and monitoring in the early phases of pregnancy. Mr Rashid submitted that the Sponsor was not fit to travel and this amounted to insurmountable obstacles.
44. I was referred to pages 34–39 of the supplementary bundle in relation to evidence of gang and drugs culture in India, and pages 50–78 in relation to difficulties of mixed faith marriages.
45. Mr Rashid drew my attention to the oral evidence of the Sponsor who said that she only received £750 per month from her business, and submitted that if the Claimant left the UK to make an entry clearance application, he would not satisfy the financial requirements of the Immigration Rules in order to be granted entry clearance.
46. Mr Rashid submitted that if it was found that insurmountable obstacles did not exist to family life continuing in India, then the appeal should still be allowed with reference to Article 8, Mr Rashid taking the view that the appropriate test was not one of compelling circumstances, but a test of proportionality.
47. At the conclusion of oral submissions I reserved my decision.
My Findings and Conclusions
48. The application made by the Claimant for leave to remain, is a human rights claim, and the Respondent’s refusal is therefore a refusal of a human rights claim which attracts an appeal to the Tribunal.
49. Only one ground of appeal is available, which is that the decision is contrary to section 6 of the Human Rights Act 1998. The Claimant argues that the decision fails to respect his private and family life rights which are protected under Article 8 of the 1950 Convention.
50. In deciding this appeal I adopt the balance sheet approach recommended by Lord Thomas at paragraph 83 of Hesham Ali v SSHD [2016] UKSC 60, and I have regard to the guidance as to the functions of the Tribunal given by Lord Reed at paragraphs 39 to 53.
51. The burden of proof lies on the Claimant to establish his personal circumstances in the UK, and why the decision would interfere disproportionately in his private and family life rights in this country. It is for the Respondent to establish the public interest factors weighing against the Claimant. The standard of proof is a balance of probabilities throughout.
52. I find as a fact that the Sponsor is a British citizen and that she was born in this country. I find as a fact that the Claimant is an Indian citizen who entered the UK illegally in July 2008. He has never had leave to remain. He waited until April 2015 before making any application for leave to remain.
53. I accept that the Sponsor and Claimant married in March 2014. At that time they were both aware that the Claimant was in the UK illegally. I accept that they have a genuine and subsisting relationship. I set out below EX.1(b) and EX.2;
EX.1(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.
EX.2 For the purposes of paragraph EX.1(b) “insurmountable obstacles” means 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.
54. When the FtT decision was made, one of the relevant authorities was the Court of Appeal decision of Agyarko, this has now been considered by the Supreme Court, the citation being [2017] UKSC 11. The Supreme Court agreed with the Court of Appeal, that the requirement of insurmountable obstacles is a stringent test. The Supreme Court found that on the circumstances of Agyarko, the fact that there was a British partner, who had always lived in the UK, and had employment in the UK, and might find it difficult and reluctant to relocate outside the UK, could not constitute insurmountable obstacles to his doing so.
55. In this case, I have taken into account that the Sponsor is British born, has always lived in this country, and in January 2016 set up her own business. I accept that she has very little contact with her family in this country.
56. The main reason put forward to show insurmountable obstacles was previously the issue of fertility treatment. That is no longer the case.
57. It is now said that the Sponsor’s pregnancy amounts to insurmountable obstacles. I do not find that the evidence submitted supports this claim.
58. There is no medical evidence to support the claim that the Sponsor cannot travel. Her oral evidence was that her baby is due at the end of October 2017. The medical evidence relied upon by Mr Rashid, related to fertility treatment. I accept that the pregnancy notes indicate that the Sponsor has previously miscarried twice. However, in order to conclude that the Sponsor is unable to travel, it is necessary to have medical evidence confirming this. That evidence is absent.
59. There has been mention of gang culture and drugs. I do not find the couple would be at any risk if returned to India. The Claimant was asked in cross-examination who he feared if returned to India, and he said his own family. He was re-examined on this point and asked if he feared anybody else and he said no.
60. Background evidence does not show that the couple would not be able to live together, because the Sponsor is Hindu and the Claimant Sikh.
61. The Claimant found employment before leaving India, in agriculture, and the couple could relocate to an area of India away from the Punjab where the Claimant’s family live.
62. There are adequate medical facilities in India. Although I accept that the couple may have difficulties in adapting to life in India, I do not find that the evidence indicates that there are insurmountable obstacles.
63. Although paragraph 276ADE(1)(vi) was not relied upon, I will consider this. To succeed on the basis of private life the Claimant would have to show that there are very significant obstacles to his integration into India. He has failed to discharge the burden of proof. Although he has been away from India since 2008, he is a citizen of that country, and there would be no language or medical difficulties so far as he is concerned. The Upper Tribunal decided in Treebhawon and Others, that mere hardship, mere difficulty, mere hurdles, mere upheaval and mere inconvenience, even when multiplied, are unlikely to satisfy the test of very significant obstacles in paragraph 276ADE(1)(vi).
64. I do not find that the Claimant’s appeal must be dismissed simply because he has not proved there are insurmountable obstacles to family life continuing in India. I go on to consider Article 8. I set out below in part paragraph 60 of Agyarko [2017] UKSC 11;
60. It remains the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test.
65. I also set out an extract from paragraph 57;
57. 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.
66. This is a precarious family life case because the couple married in the knowledge that the Sponsor was in the UK unlawfully. Therefore he must show compelling circumstances in order to succeed in this appeal.
67. I have regard to section 117B of the 2002 Act. That confirms that the maintenance of immigration control is in the public interest. I find there is significant weight in the public interest in maintaining effective immigration controls.
68. It is in the public interest that a person seeking leave to remain can speak English and is financially independent. The Claimant did not speak English at the Tribunal hearing, but I accept that he can speak English. That is a neutral factor in the balancing exercise.
69. I do not find that the Claimant is financially independent. I accept that he does not have recourse to public funds, but he is financially dependent upon the Sponsor.
70. Subsection (4) of section 117B states that little weight should be given to a private life, or a relationship formed with a qualifying partner, established by a person at a time when the person is in the UK unlawfully.
71. The Sponsor is a qualifying partner because she is a British citizen. I must attach little weight to the private life established by the Claimant because he has been in the UK unlawfully since July 2008. I also attach little weight to his relationship with the Sponsor, because it was formed when his immigration status was precarious in that it was unlawful.
72. I do not find that the Claimant has demonstrated any compelling circumstances that would justify granting leave to remain outside the Immigration Rules. The couple clearly want to live in the UK and I have taken that into account. However, as already stated, I must also take into account the public interest in maintaining effective immigration control.
73. This is not a case such as Chikwamba [2008] UKHL 40, where it could be said that there would be no point in the Claimant returning to India to make an entry clearance application because he was bound to succeed. Mr Rashid in fact advanced an argument that he would not succeed. The financial position is not clear, by way of example, the Claimant in his oral evidence stated that the Sponsor had an income of approximately £2,000 per month, whereas she indicated £750. In any event, it is not appropriate to speculate as to whether or not entry clearance would be granted. The relevant point is, that an application for entry clearance would not be guaranteed to succeed.
74. In the absence of insurmountable obstacles, and any compelling circumstances, I find that it would be proportionate for the couple to continue their family life in India. Alternatively, the Claimant could return to India, and make an application for entry clearance through the appropriate channels, and the Sponsor could remain in the UK and support that application. I therefore conclude that the Secretary of State’s decision is proportionate and is not unlawful under section 6 of the Human Rights Act 1998.

Notice of Decision
The decision of the FtT contained a material error of law and was set aside.
I substitute a fresh decision. The Claimant’s appeal is dismissed.

Anonymity
No anonymity direction was made by the FtT. There has been no request for anonymity made to the Upper Tribunal and I see no need to make an anonymity order.

Signed Date 4th April 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD
The appeal is dismissed. There is no fee award.

Signed Date 4th April 2017

Deputy Upper Tribunal Judge M A Hall