Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04384/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 7 November 2016
On 8 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

treezer annah chelimo
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mrs Peterson a Home Office Presenting Officer
For the Respondent: Dr Mavaza a Solicitor

DECISION AND REASONS

Background

1. For the sake of consistency with the decision in the First-tier Tribunal I will hereafter refer to Ms Chelimo as the Appellant and to the Secretary of State as the Respondent.

2. The Respondent refused the Appellant's application for leave to remain on 1 February 2016. Her appeal against this was allowed by First-tier Tribunal Judge Handley ("the Judge") following a hearing on 25 April 2016.

The grant of permission

3. First-tier Tribunal Judge Pullig granted permission to appeal (6 October 2016). He said it is arguable that the Judge failed to undertake an Article 8 proportionality assessment, or consider s117 of the Nationality, Immigration, and Asylum Act 2002.

Appellant's position

4. The Judge took into account all relevant factors in determining whether it was proportionate to require her to leave the United Kingdom. He noted that the relationship was genuine and subsisting, that the parties intend to live together permanently as a couple, that the Sponsor is British, and that he is employed in the United Kingdom. The Judge balanced the need to maintain an effective immigration control against the Sponsor's right to marry and remain here. The Judge was entitled to find that the couple could not live together in Kenny due to the Sponsor's criminal conviction. It was noted that British nationals are advised not to travel to Kenya. The application amounts to nothing more than a disagreement with the decision.

5. It is accepted that the Judge did not specifically refer to s117. However, he did not need to. The Appellant speaks English. The Sponsor works and can therefore provide for her. The Judge was aware that the relationship was entered into whilst her immigration status was precarious.

Respondent's position

6. Mrs Peterson relied on the grounds in support of the application.

Discussion

Ground 1

7. Nowhere in the determination has any consideration being given to the Appellant returning to Kenya and making an application in the normal way for permission to enter the United Kingdom as a spouse. This is not simply a situation where preserving the integrity of immigration control is the only factor on the Respondent's side of the proportionality equation as the Judge noted [8] that it was not accepted that the eligibility requirements were met. It was noted that she had failed to meet the requirements of a partner. Whilst it is noted that the Sponsor worked, there is no indication anywhere within the determination that the level of his income is considered or that there is any consideration as to whether public funds are relied upon either for maintenance or accommodation.

8. In this regard I bear in mind R (app Chen) v SSHD (Appendix FM - Chikwamba - temporary separation - proportionality) IJR [2015] UKUT 00189 (IAC) which notes that Appendix FM does not include consideration of the question of whether it would be disproportionate to expect an individual to return to his home country to make an entry clearance application to re-join family members in the United Kingdom. There may be cases in which there are no insurmountable obstacles to family life being enjoyed outside the United Kingdom but where temporary separation to enable an individual to make an application for entry clearance may be disproportionate. In all cases, it will be for the individual to place before the Respondent evidence that such temporary separation will interfere disproportionately with protected rights. It will not be enough to rely solely upon the case-law concerning Chikwamba v SSHD [2008] UKHL 40.

9. Hayat (nature of Chikwamba principle) Pakistan [2011] UKUT 00444 (IAC) notes that the significance of Chikwamba is to make it plain that, in appeals where the only matter weighing on the Respondent's side of an Article 8 proportionality balance is the public policy of requiring an application to be made under the immigration rules from abroad, that legitimate objective will usually be outweighed by factors resting on the Appellant's side of the balance.

10. The Judge's failure to take any of these matters into account was a material error of law as he simply considered whether family life can occur in Kenya.

Ground 2

11. Nowhere in the judgement is there a reference to s117. The only references to any of the matters contained within s117 in the determination is that the Sponsor works. It does not indicate that any consideration has been given to the level of his income or his expenses or whether the Appellant would consequently be a burden on the taxpayer. There is no finding that she speaks English. No consideration has been given to the fact that little weight should be given to the relationship formed with her Sponsor while she was here unlawfully for 10 years.

12. All those factors are matters that are required to be taken into account in the proportionality balancing exercise and the absence of any consideration of any of those factors is a material error of law.

Conclusion on error of law

13. I am satisfied that the Judge made the material errors of law as identified above.

14. Both representatives agreed that it was appropriate for me to remit the matter to the First-tier Tribunal. That was because the errors of law were significant and go to the core of the case and relate to findings that have not been made.

Decision:

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision.

The matter shall be remitted to the First-tier Tribunal, not before Judge Handley, with a time estimate of 3 hours.

Signed:
Deputy Upper Tribunal Judge Saffer
7 November 2016