Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03499/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 29 March 2017
On 12 April 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE ENTRY CLEARANCE OFFICER
Appellant
and

MARCIA CURRIE
Respondent

Representation:
For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: No representative

DECISION AND REASONS
Introduction
1. The respondent to this appeal is a citizen of the United States of America who was born on 10 October 1961. For convenience, I will hereafter refer to her as the “claimant”.
2. On 1 May 2015, the claimant applied for entry clearance as the spouse of Katharine Hiscox, a citizen of the United Kingdom whom she had married in Canada on 6 May 2010.
3. On 7 August 2015, the Entry Clearance Officer refused the claimant’s application for entry clearance. The ECO did not doubt the genuineness of the relationship. However, he refused the application on the basis that the claimant could not establish that she met the financial requirements in Appendix FM on the basis of specified evidence falling within Appendix FM-SE. The ECO also concluded that the refusal of entry clearance did not breach Art 8. On 18 November 2015, the Entry Clearance Manager upheld the ECO’s decision.
4. The claimant appealed to the First-tier Tribunal. The appeal was determined on the papers by Judge Coffey as no oral hearing was requested. The judge allowed the claimant’s appeal. Although she accepted that the claimant could not succeed in establishing that the spouse’s income reached the £18,600 threshold on the basis of documents submitted with the application, the judge was nevertheless satisfied on the evidence before her that the threshold was met.
5. The ECO appealed to the Upper Tribunal with leave granted by the First-tier Tribunal (Judge M Robertson) on 3 October 2016.
6. The appeal was initially listed before me on 4 January 2017. The sponsor did not attend the hearing. In a decision dated 23 January 2017, I concluded that the judge’s decision to allow the appeal could not stand and I set it aside. First, it was not clear whether the judge had allowed the appeal under the Immigration Rules when only an appeal on the ground that Art 8 was breached was available to the claimant. Secondly, in any event, the judge could not be satisfied that the requirements of Appendix FM were met as the documents submitted with the application and for the appeal (required by Appendix FM-SE) did not establish that the sponsor earned the required £18,600 gross per annum. Thirdly, to the extent that the judge had purported to allow the appeal under Art 8 (and she had not expressly said that was the basis of her decision) the judge had failed to consider the elements of Art 8, in particular whether the decision to refuse entry clearance was proportionate.
7. Having set aside the decision, I adjourned the appeal for it to be relisted for a resumed hearing in order to remake the decision in respect of Art 8.
The Resumed Hearing
8. At the resumed hearing, the ECO was represented by Mr Mills. The claimant was unrepresented and the sponsor did not attend. There was no explanation for her absence and, as I have already noted, the hearing before the First-tier Tribunal was determined on the papers and the sponsor did not attend the initial hearing before me in the Upper Tribunal. The notice of hearing had been sent to both the claimant’s contact address in the USA and to the sponsor’s address in the UK. In those circumstances, I considered it to be in the interests of justice to deal with the appeal in the absence of the claimant and sponsor under rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).

Discussion
9. The claimant’s only ground of appeal is under Art 8 of the ECHR.
10. Mr Mills submitted that the claimant could not succeed under the partner rule in Appendix FM because the evidence did not fall within the “specified evidence” required under Appendix FM-SE. In those circumstances, he submitted that the claimant had to establish “compelling circumstances” in order to show that any interference with her relationship with the sponsor was not proportionate. Mr Mills submitted that the judge’s finding that the evidence (albeit not complying with Appendix FM-SE) showed an income of £18,600 did not amount to “compelling circumstances” otherwise the requirements of Appendix FM-SE would have no effect because a judge could simply say that the evidence (including non-complying evidence) showed enough money and properly go on to allow the appeal outside the Rules. In this case, Mr Mills submitted that there was no compelling reason why the claimant should not be required to make another application for entry clearance. Mr Mills highlighted the claimant’s application which at question 35 set out a number of visits by the claimant between September 2007 and June 2013 where she had met the sponsor in Canada (where the sponsor then lived) and, as regards the last entry, on 21 June 2013 stated that she had visited Mexico and the purpose of the trip was to “move to Mexico with my wife”. Further, Mr Mills submitted that he was not aware of any evidence in the case put forward by the claimant as to the impact upon her relationship if refused entry clearance.
11. Article 8 of the ECHR provides as follows:
“Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
12. The present case concerns the refusal to allow entry to the claimant rather than her removal. As a consequence, the claimant’s case raises the issue of whether there is a breach of the “positive obligation” to afford respect to private and family life rather than the negative obligation not to interfere with her private and family life. Nevertheless, the approach is largely similar and the 5-stage approach in R(Razgar) v SSHD [2004] UKHL 27 remains a use guiding tool. In particular, the issue of proportionality is very closely analogous. In the recent Supreme Court case of R (MM Lebanon) and others v SSHD [2017] UKSC 10, the court recognised this at [40] in the joint judgment of Lady Hale and Lord Carnwath (with whom the other Justices agreed):
“Refusing to admit, or removing, migrants with no settled rights of residence involves the potential breach of a positive obligation to afford respect to private or family life by allowing a person to enter or remain in the host country. Technically, therefore, the question is whether the host country has such an obligation rather than whether it can justify interference. Hence, as the Grand Chamber said in the recent case of Jeunesse v The Netherlands (2015) 60 EHRR 789, “the criteria developed in the court’s case law for assessing whether a withdrawal of a residence permit of a settled migrant is compatible with article 8 cannot be transposed automatically to the situation” of an alien seeking admission, even where, as in that case, the applicant had in fact lived for many years in the host country (para 105). Nevertheless, the court went on to repeat, as had been said in many previous cases dating back at least as far as Gul v Switzerland (1996) 22 EHRR 93, that the principles applicable to the state’s negative and positive obligations under article 8 were similar: “In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation” (para 106; note that the margin has consistently been said to be “certain” rather than “wide”).”
(See also R (Agyarko) and another v SSHD [2017] UKSC 11 at [41] per Lord Reed.)
13. At [41], the joint judgment considers the position of a married couple and a claim to reside in the UK:
“There is no general obligation to respect a married couple’s choice of country in which to reside or to authorise family reunification. It will depend upon the particular circumstances of the persons concerned and the general interest. Factors to be taken into account are the extent to which family life would effectively be ruptured; the extent of the ties in the host country; whether there are “insurmountable obstacles” (or, as it has sometimes been put in other cases, “major impediments”: see, for example, Tuquabo-Tekle v The Netherlands [2006] 1 FLR 798, para 48; IAA v United Kingdom (2016) 62 EHRR 233, paras 40 and 48) in the way of the family living in the alien’s home country; and whether there are factors of immigration control (such a history of breaches of immigration law) or public order weighing in favour of exclusion (para 107). If family life was created at a time when the people involved knew that the immigration status of one of them was such that persistence of family life in the host state would from the outset be precarious, “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” (para 108; note that this was expressed as a prediction rather than a requirement). …”
14. The “central issue” is, as the Supreme Court reminded us at [43]:
“Whether a fair balance had been struck between the personal interests of all members of the family in maintaining their family life … and the public interest in controlling immigration”.
In approaching the issue of proportionality, the Tribunal must “have regard” to the consideration set out in s.117B of the Nationality, Immigration and Asylum Act 2002 (the “NIA Act 2002”).
15. There is a paucity of evidence in this case. There is no witness statement from either the claimant or sponsor and the sponsor has never attended a hearing to give oral evidence. The bundle of document is largely concerned with the sponsor’s financial position. There are a number of photographs which (I may reasonably assume) show the claimant and sponsor together in happy circumstances. However, it has never been disputed that their relationship is a genuine and subsisting one of marriage. There is a brief letter from the sponsor dated 17 August 2015 which is, again, largely concerned with the submission of additional financial documents for the appeal. It does, however, state in the concluding paragraph:
“We’ve been married 5 years and met all other criteria. I love my wife dearly and would love to be able to reside in the UK together where my Mother increasingly needs care and support.”
16. I too accept that the relationship between the claimant and sponsor is a genuine and subsisting one. On the basis of the limited evidence in the file, it appears that the sponsor lived for a period between 2007 and 2009 in Canada. The claimant’s application shows travel to Canada between September 2007 and April 2009 on eight occasions to visit the sponsor. The claimant lived in the USA. The final piece of information concerning the claimant’s travel is that on 21 June 2013 she visited Mexico where it is stated that the reason for her trip was to “move to Mexico with my wife”. It appears that the sponsor, at some point moved back to the UK. Indeed, in her application the claimant refers to three visits to the UK in October 2008, between October 2011 and April 2015 (that would appear to be a typographical error for “2012”) and in December 2013 for respectively a vacation, a 50th birthday vacation trip with the sponsor and Christmas with the sponsor’s family. Despite both the claimant and sponsor giving their permanent addresses as being in the USA and UK respectively, the most up-to-date entry on the application form appears to state that they moved to Mexico in June 2013.
17. The point of this evidence is, however, that the claimant and sponsor have carried on their married life apparently without any difficulty by visiting each other whether in Canada (where the sponsor once lived) or in the UK (apparently her base) and have chosen in 2013 to move, and live together, in Mexico. Whilst I accept that they enjoy family life together, the evidence does not establish that that family life will be “seriously ruptured”. I am not satisfied on the evidence that there are insurmountable obstacles to the claimant and sponsor enjoying their family life outside the UK. Further, I am not satisfied that it would be unreasonable to expect them to do so as they appear to have done since they married in May 2010.
18. As the Supreme Court recognised in MM, the public interest is entitled to “considerable weight” (see [75]; and also Hesham Ali v SSHD [2016] UKSC 6 at [46] et seq and R (Agyarko) and another v SSHD at [46]-[48] per Lord Reed). The search is for unjustifiably harsh consequences sufficient to outweigh the public interest (see R (Agyarko) and another v SSHD at [48] per Lord Reed).
19. It is not determinative that the claimant could not succeed in establishing on the basis of specified evidence within Appendix FM-SE that she meets the financial requirement in Appendix FM. A broader relevance of evidence, which the judge accepted, establishing the sponsor’s income as reaching £18,600 or more is appropriate in applying Art 8 (see MM at [76] and [99]). However, the fact remains that the public interest in the “maintenance of effective immigration controls” is engaged (s.117B(1)) because the claimant cannot meet the requirements of the Rules. Again, as the extracts from the Supreme Court’s decision in MM set out above make plain, there is no general obligation to respect a married couple’s choice of country in which they wish to reside. Here, as I have already pointed out, they have been able to reside in other countries, for example Canada and Mexico previously. There is no evidence that there were any difficulties in doing so or, indeed, that the sponsor could not reside with the claimant in her country of nationality, namely the USA. I accept Mr Mills’ submission that simply to establish, on the broader review of the evidence, that the financial requirement in Appendix FM is met – though not as required by evidence under Appendix FM-SE - does not in itself amount to “compelling circumstances” or make any decision necessarily disproportionate. To do otherwise would, in effect, run counter the position recognised by Parliament in s.117B(1) that a failure to comply with the requirements of the Rules engages the “public interest”.
20. As I have said before, and I repeat it again, there is a paucity of evidence in this appeal. Whilst the claimant and sponsor have a genuine relationship, they have not established that they would not be able to reasonably continue that relationship even if the claimant were not admitted to the UK. The claimant financial independence and, I will assume, ability to speak English do not, in themselves, provide a basis for a grant of leave outside the Rules. Sections 117B(2) and (3) of the NIA Act 2002 only reflect the public interest when, for example, an individual cannot speak English or is not financially independent. To be financially independent and/or able to speak the language is, at best, a neutral factor in the proportionality exercise (see Rhuppiah v SSHD [2016] EWCA Civ 803).
21. In truth, there is simply no evidence of any impact (let alone adverse impact) upon the claimant and sponsor if the ECO’s decision is maintained. The claimant has put forward no case as to why she should not be required to comply with the requirements of the Rules in order to be granted entry clearance and make a further application to do so. I am not satisfied that there are any unjustifiably harsh consequences sufficient to outweigh the public interest.
22. Taking all these matters into account, I am satisfied that the ECO’s decision strikes a fair balance between the right to family life of the claimant and sponsor and the public interest. The claimant has failed to establish, on a balance of probabilities, that the decision breaches the positive obligation to respect private and family life under Art 8 of the ECHR.

Decision
23. For the reasons set out in my decision dated 23 January 2017, the decision of the First-tier Tribunal to allow the claimant’s appeal involved the making of an error of law. That decision was set aside.
24. I remake the decision dismissing the claimant’s appeal under Art 8 of the ECHR.

Signed

A Grubb
Judge of the Upper Tribunal

Date 10 April 2017

TO THE RESPONDENT
FEE AWARD
In relation to fee award as I have dismissed the appeal, I make no fee award.

Signed

A Grubb
Judge of the Upper Tribunal

Date 10 April 2017