Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04485/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 March 2017
On 21 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

v

mr jenarthanan vikNeswaramoorthy
(no ANONYMITY DIRECTION made)
Respondent

Representation:

For the Appellant: Ms Z. Ahmed, Home Office Presenting Officer
For the Respondent: Ms A. Heller, counsel instructed by KQ solicitors

DECISION AND REASONS

1. The respondent, to whom I shall refer to as the Claimant, is a national of Sri Lanka, born on 13.7.82. He was granted refugee status in France on 14.4.13 valid for 10 years. On 15.5.15 he applied for leave to remain in the United Kingdom on the basis of his private and family life in the UK, having on 13.4.15 married Nadarasa Abiramy, a national of Sri Lanka who has been recognised as a refugee in the United Kingdom. This application was refused on 6.8.15 and the appeal against this decision came before First tier Tribunal Judge Phull for hearing on 30.6.16. In a decision promulgated on 9.8.16 the Judge allowed the appeal on human rights grounds: Article 8 of ECHR.

2. The Secretary of State for the Home Department sought permission to appeal to the Upper Tribunal. The grounds in support of the application asserted that the Judge had materially misdirected herself in law in suggesting that the Claimant formed a relationship when he made “lawful visits’ to his wife when the reality of the situation is that the Claimant and his wife got married and had a child (a daughter was born on 17.5.16.) when they knew or ought to have know that he had no apparent right to reside in the UK and his wife had no corresponding right to reside in France. Secondly, that the assertion that the Claimant had no right to bring his wife to France is based on a printout from expatica.com which appears to be misconceived in that the extract relied upon is arguably with reference to reunification of pre-flight spouses of which there are similar provisions in UK law. In any event, this small extract from a non-official website if plainly inadequate to sustain the Judge’s finding in this respect.

3. Permission to appeal was granted by Judge of the First tier Tribunal Brunnen on the basis that it was arguable that the Judge erred in law in failing to accord sufficient weight to section 117B(5) of the Nationality, Immigration & Asylum Act 2002 and failed to consider whether, following SS (Congo) [2015] EWCA Civ 387) there were compelling circumstances that justified the grant of leave to remain. Further, it was arguable that the Judge’s reasoning was speculative and not adequately supported by the evidence.

4. At the hearing before me, Ms Ahmed submitted that there were three distinct issues:

(i) the Judge failed to consider compelling circumstances cf. SS Congo [2015] EWCA Civ 387 at [51] and [55] which is a material error in that had the Judge considered it she could have come to a different conclusion;

(ii) the failure by the Judge at [39] to consider the precarious nature of the private life developed between the parties. The Claimant and his wife entered into skype contact in 2011 and he first entered the United Kingdom in 2013. He came again on a visit visa and has had this status throughout the relationship. The definition of precariousness means that little weight should be attached to private life and family life whilst illegal: Rajendran [2016] UKUT 00138 (IAC). This is not reflected in the proportionality assessment and is a material error;

(iii) the Judge’s reasoning in respect of the right of admission of the Claimant’s wife to France is inadequate and it must be the case that there is some sort of route for a spouse with leave.

5. In response, Ms Heller sought to rely upon a rule 24 response, sent on 2.3.17, which makes the following points:

(i) FtTJ Brunnen has enlarged the Respondent’s grounds;

(ii) the Judge specifically remarks upon the precarious nature of the circumstances in which the relationship was formed and properly performed the balancing exercise. She clearly had the public interest and legitimate aim in mind but finds it to be outweighed by the best interests of the child at [38], [40] and [41];

(iii) the factors relied upon by the Claimant were the lack of permanent accommodation in France and his spouse’s inability to speak French which would be a barrier to her entrance into the labour market [15]. If the Claimant’s spouse were prevented from joining him in France this would satisfy the compelling circumstances test. Whilst the expatica.com document emanates from a non-official source, it is well-established and resourced, being an international media company founded in the Netherlands in 2000.

Decision

6. I find no material error of law in the points identified in the grant of permission. It is now clear from the decision of the Supreme Court in Hesham Ali [2016] UKSC 60 at [51]-[53] per Lord Reed that the Immigration Rules are not a complete code and I find that the Judge was entitled so to find at [28] and to go on to consider Article 8 outside the Immigration Rules, given the unusual circumstances of the case which is that both the Claimant and his wife are refugees, however, the Claimant’s grant of refugee status pertains to France and his wife’s to the United Kingdom. Neither can be expected to return to Sri Lanka thus the only countries in which they could exercise their right to family life are the United Kingdom and France.

7. Moreover, whilst the Claimant’s leave in the United Kingdom has always been as a visitor and is thus precarious, the Judge expressly addressed this at [39] of her decision, noting correctly, that the relationship was developed when the Claimant made lawful visits but his status was precarious because it was always time limited.

8. However, the Respondent also challenged the Judge’s reasoning in respect of the right of admission of the Claimant’s wife to France which she asserts is inadequate. The extract from expatica.com which was the only evidence before the Judge provides: “if your relative has been granted refugee status, you can be reunited in France if you are the spouse (married before the refugee status was granted)…”

9. At [37] the Judge held:

“Having considered this evidence I find on balance that the sponsor cannot join her husband in France as his spouse because they did not marry before he was granted refugee status in 2011. They married in 2014.” See also [40] and [41].

10. I find that whilst the Judge did consider and place some weight upon the extract from expatica.com, which is an unofficial source, it was open to the Respondent to seek to adduce evidence to either rebut or confirm its contents. Moreover, whilst the source is unofficial, the contents effectively reflect the position in UK law, which is that a refugee is only entitled to family reunion with a pre-flight spouse consequently what the document states it is not particularly contentious.

11. However, this was not the only basis upon which the Judge found that the decision to remove the Claimant would be disproportionate. She considered the caselaw at [38] including the decision in LD (article 8 – best interests of child) Zimbabwe [2010] UKUT 278 (IAC) at [37]. The Judge considered section 117B and made sustainable findings in that respect. The Judge also considered and made findings in respect of the Sponsor’s employment and income; the fact that the Claimant speaks English but his wife does not speak French; that they live with their daughter in accommodation provided by a friend and are not reliant upon public funds. The Judge further held inter alia at [41]:

“I accept the appellant looks after his daughter whilst his wife goes to work. I accept he has bonded with the baby and separation, albeit temporarily, from them will have an adverse impact on their family life.”

12. I find that the Judge gave adequate and sustainable reasons for concluding that removal of the Claimant would be disproportionate. I find no error of law in the Judge’s decision, which I uphold.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman

20 April 2017