Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/02482/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 19 June 2017
On 03 July 2017

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

WAQAR SAGHIR
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the appellant: Mr M. Iqbal, Counsel instructed by Rana & Co. Solicitors
For the respondent: Ms K. Pal, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appealed against the respondent's decision to refuse a human rights claim within the context of an application to vary and extend leave to remain as the spouse of a British citizen.

2. The Secretary of State refused the application because she considered that the appellant did not meet the 'Suitability' criteria contained in Appendix FM of the immigration rules. The respondent alleged that the appellant used a fraudulently obtained English language certificate in a previous application for leave to remain.

3. First-tier Tribunal Judge Hussain ("the judge") dismissed the appeal in a decision promulgated on 21 November 2016. The judge was not satisfied that the evidence produced by the respondent in support of the allegation of fraud was sufficient to discharge the burden of proof [14]. He went on to consider whether the appellant met the requirements of paragraph EX.1 of Appendix FM, but concluded that there would be no 'insurmountable obstacles' to the couple continuing their family life outside the UK [31].

4. The appellant seeks to appeal the decision on the ground that, having found the appellant met the 'Suitability' criteria, the First-tier Tribunal erred in failing to consider whether he met the primary requirements for leave to remain as a spouse contained in Appendix FM. The provisions contained in paragraph EX.1 were only relevant if the appellant did not meet those criteria.

5. The respondent did not cross-appeal the First-tier Tribunal's findings relating to the 'Suitability' criteria and the allegation of fraud.

Decision and reasons

6. After having heard submissions from both parties I was satisfied that the First-tier Tribunal decision involved the making of an error of law.

7. The primary provisions of the immigration rules for leave to remain as a spouse are contained in paragraphs E-LTRP 1-4 of the immigration rules. Those provisions include 'Relationship', 'English language', 'Immigration status' and 'Financial' requirements. Paragraph EX.1 is only engaged if an appellant cannot meet certain aspects of those criteria: see Sabir (Appendix FM - EX.1 not freestanding) [2014] UKUT 63. Having decided in favour of the appellant in relation to the 'Suitability' criteria, the First-tier Tribunal should have considered whether the appellant met the primary provisions of the immigration rules before moving on to consider the alternative provisions contained in paragraph EX.1. The Tribunal's failure to consider material provisions of the immigration rules amounts to an error of law.

8. One reason why the judge may have been led to focus on paragraph EX.1 is because the structure of the decision letter follows that course. No clear findings were made in relation to the primary aspects of paragraphs E-LTRP 1-4 in the decision letter. The decision focussed largely on refusing the application with reference to the 'Suitability' criteria. There is nothing in the judge's decision or the record of proceedings on file to suggest that those provisions were the subject of discussion at the First-tier Tribunal hearing.

9. Having indicated that I was satisfied that the First-tier Tribunal decision involved the making of an error of law, and following a discussion with both parties as to the best way to proceed, I put the case back in order to allow time for Ms Pal to consider what the respondent's position was in relation to the primary aspects of the immigration rules given that the decision letter was silent on those issues. When the hearing resumed Ms Pal said that she had considered the Home Office records. The original caseworker appeared to be satisfied that the appellant met the core requirements for leave to remain as a spouse including the 'Relationship', 'English language' and 'Financial' requirements, but the application was refused under the 'Suitability' criteria. The appellant was successful in appealing that aspect of the decision and the respondent has not cross-appealed the First-tier Tribunal's findings. In light of Ms Pal's concession that the appellant otherwise met the requirements for further leave to remain as a spouse, it follows that the appeal should be allowed.

10. For the reasons given above I conclude that the First-tier Tribunal decision involved the making of an error of law. The decision is set aside. The decision is remade, and in light of the concession made by the respondent, is allowed on human rights grounds because the appellant met the requirements of Appendix FM, which is said to reflect the respondent's position as to where a fair balance should be struck in relation to the right to family life under Article 8.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law

The decision is set aside

The decision is remade and the appeal ALLOWED on human rights grounds

Signed Date 29 June 2017
Upper Tribunal Judge Canavan