Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04504/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 January 2017
On 13 February 2017
Ex-tempore judgment

Before

UPPER TRIBUNAL JUDGE HANSON

Between

Mr Sultan Kabir
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr R Benton of Counsel, instructed by Law Dale Solicitors
For the Respondent: Mr S Kotas, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge H Clark (the Judge) promulgated on 30 August 2016, following a hearing at Taylor House on 18 August 2016, in which the Judge dismissed the appellant's appeal against a refusal of his application for leave to remain in the United Kingdom under the Human Rights Act. Before the Tribunal today the appellant is being represented by Mr Benton of Counsel, instructed by Law Dale Solicitors, the respondent by Mr Kotas, a Senior Home Office Presenting Officer.

2. Permission to appeal was granted by First-tier Tribunal Judge Shimmin in a decision dated 19 December 2016, on the grounds Judge Shimmin thought it was arguable that the Judge had erred in her assessment of proportionality and in requiring the appellant to apply to rejoin his spouse from abroad. This is particularly said to be so in light of the appellant appearing to meet the requirements of the Immigration Rules.

3. In relation to the Rules, the specific finding of the Judge set out at paragraph 34 was that the appellant did not meet the provisions of the Immigration Rules by reference to EX.1 and paragraph 276ADE(1). The Judge, having assessed the evidence, came to the conclusion that the Secretary of State had discharged the burden of proof upon her to the required standard to show that the decision to remove the appellant was proportionate in all the circumstances.

4. It is not submitted and has not been suggested that the Judge misunderstood the appropriate legal provisions and indeed the applicable law is set out at paragraphs 10 to 15 of the decision under challenge, correct burden of proof at paragraph 16, and the findings at paragraphs 24 to 33.

5. The nature of the application, as noted by the Judge, was an application for leave to remain in the United Kingdom on human rights grounds. The Judge also took note of the appellant's immigration history. This is summarised in the respondent's front sheet to the bundle before the First-tier Tribunal, showing that the appellant entered the United Kingdom lawfully with leave to enter as a student for the period 3 November 2009 to 30 June 2011, the date of entry being 15 November 2009. On 13 April 2011 the appellant applied for leave to remain as a student that was granted, extending his leave to 30 March 2014.

6. The summary shows that on 28 October 2013 curtailment of that leave was not pursued, that on 25 March 2014 a further application for leave to remain as a student was voided in favour of another application, and that on 15 April 2015 the appellant applied for leave to remain under the family/private life route. It was this application that led to the refusal which was the subject of the appeal before Judge Clark.

7. The significance of the immigration history is clearly that during the time since the appellant entered the United Kingdom including the day of the First-tier Tribunal hearing and indeed today his status in the United Kingdom has been precarious. This is relevant to the weight the Judge was entitled to give to both the family and private life relied upon, private life when considering Section 117 of the 2002 Act and the family life element when considering the jurisprudence arising from the European Court of Human Rights. Authority for that proposition is the Tribunal decision of Rajendran [2016] UKUT 138.

8. Mr Benton challenges the outcome of the proportionality exercise, i.e. the conclusion that the decision is proportionate although it is settled law that where no error has been shown in relation to the test applied by the judge, i.e. that the correct test was applied, then the burden is upon the appellant to prove legal error on public law grounds, authority for that being the cases of Akaeke [2005] EWCA Civ 947 and Mukarkar [2006] EWCA Civ 1045.

9. The challenge in relation to this matter is that the Judge should have done more than she did, i.e. to have gone on and considered the reasonableness of expecting a couple such as this to be separated solely for the purposes of allowing the appellant to return to Bangladesh to make an application to return to the United Kingdom.

10. The problem with that submission is that it runs into difficulty at the very first hurdle, namely that when reading the papers in some detail, when preparing for this hearing, I could find no reference in the skeleton arguments, the Record of Proceedings or the determination to show that any such proposition or submission had been made to the Judge arguing that that would make her decision disproportionate. It is not arguable legal error for a judge not to consider a matter that he or she was not asked to consider unless it is a factor that can fall within the category of being Robinson obvious.

11. Mr Benton has referred in his grounds and submissions made today to the case of Chikwamba. Chikwamba is a case that was decided in 2008 before the amendment to the Immigration Rules in July 2012 and it is accepted that those Rules do not make any specific provision for what may be described as a 'Chikwamba-type' situation. Chikwamba itself was further considered by the court in the case of Hayat but of more relevance to the submission that is being made is a decision of the Upper Tribunal in R (on the application of Chen) v Secretary of State for the Home Department (Appendix FM - Chikwamba - temporary separation - proportionality) (IJR) [2015] UKUT 189 in which it was held that:

"(i) Appendix FM does not include consideration of the question whether it would be disproportionate to expect an individual to return to his home country to make an entry clearance application to rejoin family members in the UK. There may be cases in which there are no insurmountable obstacles to family life being enjoyed outside the UK 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 Secretary of State 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.

(ii) Lord Brown was not laying down a legal test when he suggested in Chikwamba that requiring a claimant to make an application for entry clearance would only 'comparatively rarely' be proportionate in a case involving children."

12. As stated, there was nothing to show that this was an issue that was specifically drawn to the Judge's attention although Mr Benton, quite properly, in his submissions refers to those factors that were placed before the Judge in support of the argument that the appellant's removal would be disproportionate, as insurmountable obstacles existed to the family life enjoyed by the appellant in the UK continuing in Bangladesh. There is therefore an overlap between the two matters and I take Mr Benton's submissions is being made on that basis.

13. The difficulty for the appellant in relation to that aspect is that all relevant matters that the Judge was required to consider were considered with the required degree of anxious scrutiny. The Judge has given adequate reasons for the findings made and so the weight to be attached to those individual matters was a matter for the Judge. It has not been made out that the Judge took an irrational or perverse approach to the question of the balancing exercise or proportionality assessment and, indeed, in the decision was very careful to ensure that the factors that were relied upon by both the Secretary of State and the appellant were properly balanced, in the round.

14. The concern of the appellant seems to be in relation to the life they have developed together which includes the issue of fertility treatment and the situation of the sponsor's being settled, the appellant's wife being the sponsor. It was found that her settled position in the United Kingdom, albeit that it was found that she is also a person who has lived in Bangladesh, has given her experiences that will enable her to settle appropriately within Bangladesh.

15. Two points I make in relation to that stance, which show that no arguable legal error is made out. The first is a reference to a 2008 case of R (on the application of Erimako) v Secretary of State for the Home Department [2008] EWHC 312, in which Burnton J stated it was not disproportionate to remove the appellant, whose wife in her 40s had leave to remain, when they were undergoing fertility treatment here that would not be as effective in his home country. This is a finding that the existence of fertility treatment per se does not make the matter disproportionate. However, and I do accept that when fertility and children is the issue there is a huge emotional price that is paid and from personal experience I know where you are coming from, the law says something different. I am not being insensitive but I feel I have to mention the above case for that reason.

16. The second point is that the Judge also refers to the decision in SS (Congo). This is quite important for in SS (Congo) [2015] EWCA Civ 387 Lord Justice Richards noted that the sponsor arrived in the UK aged 7 from Somalia, became a British citizen and that he and the appellant entered into the marriage knowing, in effect, that she would have to comply with the Immigration Rules. This is a similar situation to the one that is facing the appellant in this case. Lord Justice Richards stated that the fact that the sponsor would lose his job in the United Kingdom if he had to leave to enjoy family life elsewhere and would prefer to establish family life in the United Kingdom does not constitute compelling circumstances to require the grant of leave to enter outside the Rules. As the authorities make it clear, and this is the key point, Article 8 does not create a right for married couples to choose where they wish to live in any Contracting State.

17. I therefore dismiss this appeal as I do not find that it was made out before the Judge that the evidence supported a finding that any temporary separation would interfere disproportionately with the protected rights. Secondly, that this was not a matter raised before the Judge. Thirdly, the Judge considered the evidence with the appropriate degree of care. Fourth, it has not been shown that the Judge applied an incorrect test or failed to apply the test that was set out by the Judge in the decision and, finally, no public law grounds have been established to warrant this Tribunal interfering with the decision. No arguable legal error has been made out on the facts. For that reason, I have no choice but to dismiss the appeal.

Notice of Decision

No arguable error of law material to the decision to dismiss the appeal has been made out. The decision shall stand.

No anonymity direction is made.

Signed Date 9 February 2017

Upper Tribunal Judge Hanson