Tribunal decisions

The decision

IAC-PE-SW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/02931/2015

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 7th October 2016
On 16th November 2016

Before

DEPUTY upper tribunal JUDGE RENTON

Between

AMIR [R]
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Karwik, Counsel instructed by Cambridge Solicitors LLP
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The Appellant is a male citizen of Pakistan born on 13th April 1965. The Appellant last entered the UK on 9th January 2015 when he was given leave to enter as a visitor until 8th July 2015. On 12th May 2015 the Appellant applied for leave to remain as the wife of the Sponsor [KA] whom he had married on 15th April 2015. That application was refused for the reasons given in the Respondent's letter of 10th July 2015. The Appellant appealed, and his appeal was heard by First-tier Tribunal Judge Garbett (the Judge) sitting at Stoke-on-Trent on 11th January 2015. He decided to dismiss the appeal under the Immigration Rules and on human rights grounds for the reason given in his Decision dated 18th January 2016. The Appellant sought leave to appeal that decision, and on 29th July 2016 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The Judge found the Appellant and the Sponsor both of whom gave evidence to him to be credible witnesses. He was satisfied that they had a genuine and subsisting relationship and had lived together as a married couple. He also found that the Sponsor suffered from a cancerous tumour in her foot which rendered her virtually unable to walk and that she was in receipt of chemotherapy. He further found that the Sponsor's daughter whom the Appellant had regarded as his own had died in July 2015.
4. The Judge decided that the Appellant could not qualify for leave to remain under Appendix FM of HC 395 as the Appellant had entered the UK as a visitor. The Judge also decided that the Appellant could not benefit from the provisions of paragraph 276ADE of HC 395 because there were no very significant obstacles to the Appellant's integration on return to Pakistan for the reasons set out in paragraph 25 of the Decision. Further, the Judge found that there were no compelling circumstances which allowed him to consider the Appellant's rights under Article 8 ECHR following the decision in SSHD v SS (Congo) [2015] EWCA Civ 387. The circumstances considered by the Judge in this respect are those set out at paragraph 27 of the Decision. In the alternative, the Judge decided that although the Respondent's decision amounted to a breach of the Appellant's right to a family life of such gravity as to activate his Article 8 ECHR rights, such a breach was not disproportionate.
5. At the hearing, Mr Karwik argued that the Judge had erred in law in coming to these conclusions. It was now accepted that the Judge had erred at paragraph 30 of the Decision in taking into account the proposition that the Appellant had remained in the UK after the expiration of his visit visa. This was not the case. This amounted to a material error because the immigration status of the Appellant was relevant to the proportionality exercise. Further, the Judge had erred by failing to consider the provisions of paragraph EX.1 of Appendix FM of HC 395, and had referred to the factors given in Section 117B of the Nationality, Immigration and Asylum Act 2002 whereas the Appellant's case was based upon his private life. The Judge was confused as to the correct legal framework to apply, and had failed to carry out the balancing exercise as required by the decision in SSHD v SS (Congo) [2015] EWCA Civ 387. The Judge had used a test of exceptionality and not compelling circumstances which was less of a hurdle to surmount. In any event, considering the facts of the case, the Judge's decision that there were no compelling circumstances was perverse.
6. In response, Mr Mills referred to the Rule 24 response. Apart from the Judge's error as to the Appellant being an overstayer, the Judge had considered all the relevant facts at paragraphs 27 and 28 of the Decision and had applied them to the appropriate test. It could not be said that the Judge's decision was perverse. Something considerably more than a disagreement with the Judge's decision was required to show perversity. There was no error of law.
7. I find no error of law in the decision of the Judge which therefore I do not set aside. The issue in the appeal was whether the decision of the Respondent amounted to a breach of the Appellant's rights protected by Article 8 ECHR. The Judge correctly began his deliberation by considering Appendix FM of HC 395 and his decision that the Appellant could not meet the eligibility requirements set out in E-LTRP.2.1 is correct in law. The Appellant entered the UK as a visitor, and therefore the Judge's decision that he was not allowed to consider paragraph EX.1 of Appendix FM is also correct. The Judge then found that the provisions of paragraph 276ADE of HC 395 did not apply. That decision has not been challenged in this appeal. Finally the Judge decided that he could not consider the Appellant's Article 8 ECHR rights outside the Immigration Rules because there were no compelling circumstances allowing him to do so. This is a correct interpretation of the decision in SS (Congo). To reach that conclusion, the Judge considered all the relevant circumstances which he listed at paragraphs 27 and 28 of the Decision. His finding that there were no compelling circumstances was one open to him on those facts and whereas it may be a decision that not many would agree with, it cannot be said to satisfy the very high threshold to amount to perversity. The Judge did make an error of fact as to whether the Appellant was an overstayer, but this does not amount to a material error of law because it was not a matter taken into account by the Judge when considering compelling circumstances. The Judge did refer to the factors set out in Section 117B of the 2002 Act, but only in the context of an alternative decision that any breach of the Appellant's Article 8 ECHR rights was proportionate and therefore in mentioning those factors there was no material error of law in respect of the Judge's compelling circumstances decision.
8. I find no error of law in the decision of the Judge.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside that decision.
The appeal to the Upper Tribunal is dismissed.
Anonymity
The First-tier Tribunal did not make an order for anonymity. I was not asked to do so and indeed find no reason to do so.

Signed Date

Deputy Upper Tribunal Judge Renton