Tribunal decisions

The decision

IAC-AH-DP-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04553/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th February 2017
On 02 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mr sheik irfan hossen khudurun
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss C Simpson, Counsel
For the Respondent: Mr P Nath, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Mauritius born on 23rd May 1992. The Appellant arrived in the UK on 9th April 2006 and was granted leave to join his parents until 31st October 2006. He embarked from the UK on 22nd April 2006 and returned to Mauritius but returned to the UK on 30th September 2007 having been granted leave to enter as a student. A substantial number of further applications were made by the Appellant for leave to remain dependent upon the Appellant’s mother’s application. On 1st May 2015 the Appellant’s mother attempted to include the Appellant in her application for indefinite leave to remain outside the Rules. Because it is not possible to include children aged 18 or over as dependent in such applications the Appellant made his own application for indefinite leave to remain outside the Rules. That application was refused by the Secretary of State by Notice of Refusal dated 7th August 2015.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Andonian sitting at Taylor House on 3rd August 2016. In a determination promulgated on 25th August 2016 the Appellant’s appeal was allowed.
3. On 8th September 2016 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. The main thrust of that application is with regard to the judge’s findings in paragraph 16 on insurmountable obstacles to the Appellant’s spouse joining him overseas in which it is contended that the judge has failed to have regard to the high test this requires or to follow the principles set out in Agyarko and Others [2015] EWCA Civ 440. In addition it was contended that the judge had completely failed to conduct any assessment under Section 117 of the 2002 Act or to properly consider the public interest factors in this case.
4. On 3rd January 2017 Tribunal Judge Parkes granted the Secretary of State permission to appeal to the Upper Tribunal. He noted that the First-tier Tribunal Judge had found that the fact that the Appellant’s wife lived in the UK, has never been to Mauritius, works here, is undergoing IVF and all her family are in the UK amounted to very compelling circumstances (paragraph 16) justifying the appeal being allowed. Judge Parkes considered that the facts of this case were not particularly unusual and compelling circumstances are needed to justify a grant of leave outside the Rules. In such circumstances he found that the grounds disclosed arguable errors of law and granted permission to appeal.
5. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed Counsel Miss Simpson. Miss Simpson is familiar with this matter having appeared before the First-tier Tribunal. The Secretary of State appears by her Home Office Presenting Officer Mr Nath. I note when the appeal appeared before the First-tier Tribunal the Secretary of State was not represented. For the purpose of continuity throughout the appeal process the Secretary of State is referred to herein as the Respondent even though this is her appeal.
The Facts
6. The important paragraph of the First-tier Tribunal Judge’s decision is paragraph 16 where he states:
“As I said, the Appellant’s partner is a British citizen and was born in the UK with all her family here. She has never living in Mauritius and does not understand the language of that country, she has a job here and is undergoing fertility treatment and these are very compelling reasons as to why the Appellant and his wife could not live in Mauritius, not least that the Appellant’s wife works in the UK and has all her family here. They do amount to very compelling or insurmountable circumstances.” (inserted verbatim without appropriate grammatical amendments)
The Rule
7. EX.1. This paragraph applies if
1. (a)
1. (i) the applicant has a genuine and subsisting parental relationship with a child who-
1. (aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
2. (bb) is in the UK;
3. (cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
2. (ii) it would not be reasonable to expect the child to leave the UK; or
2. (b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.
EX.2.For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.
Submissions/Discussions
8. Mr Nath starts by taking me to the leading authority of The Queen (on application of) Agyarko [2015] EWCA Civ 440. He points out that in the Upper Tribunal referred to at paragraph 45 within that decision where Upper Tribunal Judge Craig stated
“As I understand the argument now advanced, it is that the applicant is undergoing fertility treatment in this country which she wants to continue. That is not an insurmountable obstacle to the couple going to Nigeria if they choose to do so. It is a matter for them; no-one is making a British citizen leave this country but if this couple want to enjoy family life together in this country they are only entitled to do so if they satisfy the requirements within the Rules, which in this case they do not.”
9. Mr Nath points out that it has to be remembered that this is another case where the Appellant’s spouse is undergoing fertility treatment. His emphasis as to where there is a material error of law is that in the manner in which the First-tier Tribunal Judge has addressed this the judge has not explained or shown where the insurmountable obstacles will be. He has not addressed he submits the details of the insurmountable objects test and that it would be possible for the Appellant to return to Mauritius and make a fresh application. It is only in paragraph 17 of the decision (i.e. not paragraph 16 above) that the judge has addressed this issue.
10. In response Miss Simpson says that the judge heard the evidence and found the Appellant to be credible. She points out that the parties had been in a relationship since 2012 albeit not living together and she also accepts that the appeal does not turn on this point. Further she submits that the fertility treatment is not the only basis upon which the judge granted leave and that the judge heard all the evidence and at paragraph 17 was entitled to say that the relationship was durable and that it was not disproportionate to allow the appeal. She accepts that there has been no reference to Section 117 in the decision but comments that that is not necessarily an issue that has to be addressed in every decision. She asked me to dismiss the Secretary of State’s appeal and find no material errors of law.
11. In brief response Mr Nath submits that the judge has failed to deal with the correct approach to the insurmountable obstacles test and whilst Miss Simpson has referred me to paragraphs 9, 12 and 16 that is not the test of insurmountable objects and that the judge has only referred to IVF. He asked me to find material errors of law and to remit the matter back to the First-tier Tribunal for rehearing.
The Law
12. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
13. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings
14. I start by noting that all references made herein are to the findings the Court of Appeal in Agyarko. At time of the hearing of this appeal on 17th February the Supreme Court had not handed down judgment in Agyarko which they did on 23rd February. However the decision of the Supreme Court upholds the decision of the Court of Appeal and consequently I am bound by the findings in the Court of Appeal and it is neither necessary nor appropriate to ask for either legal representative to make further submissions based on the findings in the Supreme Court.
15. It is important that it is understood that I am merely determining whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. I am not retrying or remaking this decision. However for the reasons given below I do find that there are material errors of law in the decision of the First-tier Tribunal Judge and the correct approach is to remit the matter back to the First-tier Tribunal for rehearing.
16. The law is set out above and is given due and further consideration in Agyarko. As has been emphasised to me at paragraph 50 of Agyarko the factors relied upon by the Appellant in that case could not possibly persuade any decision maker that there were insurmountable obstacles to family life continuing in Nigeria within the meaning of the provision of Section EX.1(b). However I do emphasise that each case is case sensitive. I do emphasise that I am not rehearing this and I am not making any conclusions but it is incumbent upon the judge to address the test on insurmountable obstacles. The phrase insurmountable obstacles as used in paragraph EX clearly imposes a high hurdle to be overcome by an applicant for leave to remain under the Rules. The test is significantly more demanding than a mere test of whether it be reasonable to expect a couple to continue their family life outside the United Kingdom. I am satisfied that the First-tier Tribunal Judge has failed to apply the test. All he has done is make reference to the position regarding the Appellant’s spouses IVF. That is not the correct approach. Further whilst I accept that at the time of application the Appellant’s leave was not precarious (despite what Judge Parkes says in the grant of permission) that is only what he considered and the judge has failed completely to carry out an assessment pursuant to Section 117 of the 2002 Act. For all these reasons therefore there are material errors of law in the decision of the First-tier Tribunal Judge. I consequently set aside the decision and remit the matter back to the First-tier Tribunal for rehearing. In doing so I find fairness means the issues should be reheard and it would be premature to remake the decision dismissing the appeal from the original Notice of Refusal.
Notice of Decision

The decision of the First-tier Tribunal Judge contains a material error of law and is set aside. Directions for the rehearing of this matter are set out below:

1. On the finding that the decision of the First-tier Tribunal Judge disclosed a material error of law the appeal of the Secretary of State is allowed and the matter is remitted back to the First-tier Tribunal at Taylor House for rehearing.
2. That the rehearing of this matter be before any Immigration Judge other than Immigration Judge Andonian to be heard at Taylor House on the first available date 28 days hence with an ELH of two hours.
3. That none of the findings of fact are to stand.
4. That there be leave to either party to file at the Tribunal and serve on the other party an up-to-date bundle of subjective and/or objective evidence upon which they seek to rely along with any skeleton arguments relied upon at least seven days prior to the restored hearing.
5. That in the event that the Appellant requires an interpreter at the restored hearing his instructed solicitors do give notice to the Tribunal within seven days of receipt of these directions.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris