Tribunal decisions

The decision

IAC-AH-DP-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05279/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th February 2017
On 3rd March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mr simon ejiofor ossai
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss L Longhurst-Woods, Counsel
For the Respondent: Mr P Nath, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Nigeria born on 17th July 1986. The Appellant entered the United Kingdom on 30th April 2009 with entry clearance as a student valid until 31st August 2012. Thereafter he left the country and re-entered on 16th April 2013 with entry clearance as a Tier 4 (General) Migrant valid to 30th December 2014. Prior to the expiration of that leave the Appellant applied for further leave to remain as a Tier 4 (General) Migrant and that was granted to 30th May 2015. On 27th August 2015 the Appellant applied for limited leave to remain on the basis of his family/private life. That application was refused by Notice of Refusal dated 27th August 2015.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Meah sitting at Taylor House on 1st August 2016. In a decision and reasons promulgated on 16th August 2016 the Appellant’s appeal was allowed. On 25th August 2016 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. On 3rd January 2017 First-tier Tribunal Judge Astle granted permission to appeal. Judge Astle noted that the grounds argue that the Appellant was not able to provide the required documents demonstrating £18,600 income and could not succeed under EX.1 as insurmountable obstacles to family life continuing outside the UK had not been demonstrated and that the judge had erred in concluding that EX.1 was satisfied. Judge Astle considered that it was not apparent that the judge had had regard to EX.2 in his consideration of insurmountable obstacles and in failing to do so it was arguable she had erred and permission was therefore granted. On 3rd February 2017 a Rule 24 response was lodged in reply to the Secretary of State’s application for permission to appeal. I have read and considered that document which is effectively a skeleton argument prepared by Counsel.
3. 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. I note that this is an appeal by the Secretary of State. For the purpose of continuity throughout the appeal process the Secretary of State is referred to herein as the Respondent and Mr Ossai as the Appellant. The Appellant appears by his instructed Counsel Miss Longhurst-Woods. Miss Longhurst-Woods is the author of the Rule 24 response. She also 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.
The Rules
4. 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
5. Both legal representatives advise me that despite the grant of permission it never has been an issue that the Appellant could not meet the financial requirements and that that aspect of the grant of permission is not pursued. This case consequently, it is agreed, turns on whether or not there has been a correct interpretation of paragraph EX.2. I am reminded as to the meaning of insurmountable obstacles for the purpose of paragraph EX.1.(b) at paragraph 6 of the Secretary of State’s Grounds of Appeal. Mr Nath relies on paragraphs 6 to 8 of his Grounds of Appeal and the test set out at paragraph 8 in The Queen (on the application of) Agyarko [2015] EWCA Civ 440. I have read and given due consideration to the relevant paragraphs in the Grounds of Appeal.
6. Mr Nath refers me to paragraphs 20 and 24 of the First-tier Tribunal Judge’s decision. He acknowledges that paragraph 20 looks at insurmountable objects but that paragraphs 20 to 24 set out the facts but they do not address the issue of insurmountable obstacles. He refers me to the tests and the manner in which this needs to be addressed as set out in Agyarko and he asked me to find that the judge has failed to look at the test and asked me to find therefore there are material errors of law in the decision of the First-tier Tribunal Judge and to remit the matter back for rehearing.
7. Miss Longhurst-Woods in response acknowledges that this all turns on an assessment of insurmountable obstacles. She reminds me that the judge has found in this case that insurmountable obstacles are present. She points out that the judge has set out the relevant Rules and what insurmountable obstacles are. She refers me to paragraphs 15 and 16 of the decision where reference is made to the culture, climate, food, lack of human rights, personal freedoms and healthcare alongside the prevalent gender and sexual and other discriminations and equality in Nigeria and the fact that the Appellant hails from an area where Islamic extremism, terrorism, armed robbery and other crimes such as kidnapping and cultism are rife. She reminds me that the judge has given due consideration to objective evidence. She then gives further consideration to the issues of law considered at paragraphs 18 and 19 and that Article 8 is not a test of insurmountable obstacles. She points out that thereafter the judge goes on to expressly refer to paragraph EX.2 pointing out the very serious hardship that would result to the Appellant’s partner then summarises the reasons which include language and the Appellant’s partner’s continuing studies. She reminds me that the Appellant’s partner is trained to be a solicitor and is in the third year of her law degree and that the judge concluded that it was not possible merely for her to go to a Nigerian university. She submits that the judge was entitled to make the decision that she did and she asked me to uphold the decision as disclosing no material error of law.
8. In brief response Mr Nath further reiterates the Secretary of State does not consider that the judge has grappled with the issue of insurmountable obstacles and he asked me to find there is a material error of law on that basis and to remit the matter back to the First-tier Tribunal for rehearing.
The Law
9. 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.
10. 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 on Error of Law
11. It is necessary for a judge when carrying out an assessment to properly apply the test of insurmountable obstacles and it is accepted law that the phrase “insurmountable obstacles” as used in paragraph EX.1 of the Rules clearly imposes a high hurdle to be overcome by an applicant for leave to remain under the Rules and that the test is significantly more demanding than a mere test of whether it will be reasonable to expect a couple to continue their family life outside the United Kingdom. The question arises as to whether or not the First-tier Tribunal Judge has properly looked at this test. I am satisfied that she has and therefore that the decision discloses no material error of law. It is important that I give my reasons. Further I note the fact that at the time that this appeal was heard on 17th February 2017 the relevant guiding case law was the Court of Appeal judgment in Agyarko. I further note that on 23rd February 2017 the Supreme Court handed down judgment in that case and that that decision was not before me. However I note that the appeal in Agyarko was dismissed by the Supreme Court and the findings of the Court of Appeal remain good law. In such circumstances it is appropriate to apply those principles.
12. This is a judge who has looked at the law carefully. She has given full and cogent reasons for her finding that the test of insurmountable obstacles contained in paragraph EX.1 was satisfied and she made reference to the definition contained in paragraph EX.2. There is no suggestion in the decision that the judge has failed to have regard to EX.2. It is the application of the test that is important. The judge has given due and proper consideration to it. I emphasise that I am not retrying this matter. All I am looking at is whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. I am satisfied for the above reason that there is not. The judge heard evidence from the Appellant and the Sponsor which she found to be cogent and credible. Thereafter she assessed the extensive documentary evidence provided by them and sets out at paragraphs 21 to 24 her findings and has given full consideration to the circumstances that will arise if the Appellant and his partner were forced to return and paragraphs 15 to 17 and has made findings which she was entitled to applying the correct test that this amounts to insurmountable obstacles within the definition of the Rules.
13. In such circumstances the submissions of the Secretary of State amount to nothing more than mere disagreement. On the basis that the judge has applied the correct test she has made findings which she was entitled to and consequently the decision discloses no material error of law and the appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained.
Notice of Decision
The decision of the First-tier Tribunal Judge discloses no material error of law and the appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained.
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