Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06102/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 1 March 2017
on 7 March 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

MALIK ZAFAR IQBAL
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr R A Khan, of RH & Co, Solicitors
For the Respondent: Mrs M O’Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of Pakistan, whose date of birth is recorded as 1 January 1971.
2. The appellant’s wife is Shabnam Bi, a citizen of Pakistan born on 11 November 1976. They married in Pakistan in on 27 March 2007. The case involves no children.
3. (The information within the papers about the immigration history, current immigration status and nationality or nationalities of the appellant’s wife is unclear. An excerpt from records dated 4 April 2006 filed by the respondent says that she “was granted leave as an illegal overstayer and granted leave on the white paper”, presumably meaning leave as the result of a policy decision. In the application form leading to these proceedings, the appellant said that their relationship began in March 2007 and that his wife obtained settlement on 4 April 2006 as the spouse of a British national to whom she was married from 23 April 1998 to 16 November 2006. In her witness statement to the FtT, she says that she was “granted indefinite leave to remain on the basis of domestic violence” and is trying to pass the language requirement for a nationality application. She does not appear yet to have become a UK citizen, and in any event she appears to remain a citizen of Pakistan. None of this is crucial, because it is accepted she has a status sufficient to ground the appellant’s proceedings.)
4. At item 7.19 of the form the appellant answered “yes” to the question, “Have you and your partner ever lived together outside the UK?”. The answer to item 7.20 was left blank, indicating that there would be no obstacles to their family life continuing outside the UK.
5. Inconsistently, however, at item 10.11 asking if it would be difficult for him to integrate and establish private life in Pakistan, the appellant said that on the basis of “family and private life” he was “unable to relocate to Pakistan” and would be “unable to adjust without my wife”; and in statements accompanying the application, he and his wife said they would be “unable to adjust to life in Pakistan” and had minimal connection with that country.
6. The respondent sets out the immigration history of the appellant thus. He was refused entry clearance on 8 May 2010. On a further application, he was granted entry clearance as a spouse valid from 17 February 2013 until 17 May 2015. He entered the UK on 13 March 2013.
7. The application mentioned at paragraphs 3 – 5 above was made on a form FLR(FP) received by the respondent on 15 May 2015, seeking an extension of stay based on “family life as a partner, 10 year route” (section 2).
8. The respondent refused the application by letter dated 9 September 2015, with attached Annex A to explain “the reasons for refusal of your human rights application” and Annex B to explain “the legal consequences”.
9. Annex A I find cryptic if not mystifying. It refers to paragraphs of appendix FM but does not explain any shortcomings in the application other than by reference to paragraph EX.1 and the ability of the appellant and his partner to live together in Pakistan.
10. Annex B advises the appellant of his right to appeal “on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998”.
11. The appellant filed an appeal to the FtT on 17 September 2015. Under “new matters” he said that his removal “would engage article 8 of the Convention”. A separate statement of “grounds of appeal” in 10 paragraphs does not crystallise any issue. The last paragraph says that the appellant “could not meet the English language requirement and he made application for further leave to remain”; the legal relevance of those two statements of fact is not explained.
12. The appeal was heard before Judge P G Grant-Hutchison on 29 July 2016 and dismissed by decision promulgated on 16 September 2016.
13. The respondent accepted that the application might have succeeded under the rules if the language requirement had been met: paragraph 9(b).
14. The appellant’s position is recorded thus: he applied for further leave rather than indefinite leave to have more time to meet the language requirement, the respondent recognised the need for a period of adjustment, and this was a compelling reason why leave should have been granted for that purpose (paragraph 10).
15. The judge said that the appellant’s route through the rules was by way of paragraph EX.1, which he could not meet (paragraph 12) and that although the appellant’s situation was “somewhat unusual in that the English language requirement was introduced after he was in the UK” there was nothing to justify the appeal outside the rules. It was dismissed “under the immigration rules” and “on human rights grounds”.
16. Matters falling within the rules might well have informed or even governed the outcome, but it does not appear that the judge had jurisdiction other than on human rights grounds.
17. The appellant says by way of introduction to his grounds of appeal to the UT that he cannot read and write, and so “could not pass life in the UK and ESOL test at level BI in order to meet the English language requirement as stated in appendix KoLL of the immigration rules”. He goes on to state three grounds.
18. The first ground is that the appellant had produced a statement of intent by the respondent (referred to briefly in the record of submissions, the recognition of a period of adjustment) but it was not given due weight by the judge. The policy statement is quoted:
We recognise that the new KoLL requirements may be challenging for some. We will therefore allow the following categories of applicant to apply for further periods of limited leave to remain … to enable them to meet the requirements if they have not yet done so: partners … applying under appendix FM or subject to transitional arrangements under part 8 …
19. The second ground founds on transitional arrangements under part 8 of the rules, on paragraphs A277D and in particular on 284 (ix)(a)(iii), “exceptional compassionate circumstances that would prevent the applicant from meeting the requirement”. That reference to the English language requirement is said to leave an area of discretionary judgement for the decision maker and on appeal, which should have been exercised in the appellant’s favour.
20. The third ground cites a passage of case law (not very pertinent) and says that the judge “would have come to a different conclusion had he considered the article 8 claim with the immigration rules”.
21. Mr Khan submitted that the grounds disclosed errors of law such that the decision should be set aside. He further argued that the appellant was entitled to further leave to remain, sufficient to give him time to meet the language requirement.
22. There was tension in submissions between whether the appellant is entitled to leave to enable him to meet the language requirement, or whether his circumstances are such that he can never reasonably be expected to meet it, and should be excused from doing so; that is a point which does not require resolution at this stage.
23. As I understood the position from both representatives, the language test is based only on speaking and listening, and does not demand literacy. The further test (although they are often loosely referred to together) is of knowledge of life in the UK, under appendix KoLL. It is computer-based, and so does require reading ability. It applies only at the stage of application for indefinite leave.
24. Mrs O’Brien confirmed that applicants in similar circumstances to the present may be granted 2 years leave, if they produce evidence of their efforts to reach the necessary standard. She said that the basis on which the appellant now says he should have had leave was not at all apparent from the application he submitted. She referred to pages A21-A24 of the respondent’s bundle, part 8 of the application form, and in particular item 8.8 and 8.9, asking whether exemption from the language requirement is claimed, and for evidence and / or explanation. All of this was left blank. The appellant provided some narrative at other parts, but nothing at all about the language requirement. His application was therefore bound to fail. It was not for the decision maker to speculate on the underlying reality. The appellant might have asked for 2 years leave under the “old rules” but he did not; he submitted an application in terms of appendix FM. None of the covering correspondence or documents raised the arguments he now sought to make. That was the responsibility of the appellant and of the representatives he had at the time (who were not his current representatives). Even if the appellant had shown that he was unable to pass the test, that would not have enabled him to succeed under the rules. The case so far as based on EX1, or outside the rules, was of no substance.
25. Mr Khan in response accepted that the application form regarding the language requirement was left blank, and that the appellant had not formally asked for an exemption, but simply accepted his failure on the language requirement. However, it should have been obvious to the respondent that was why he was asking for further leave to remain and not for indefinite leave to remain. Even if not obvious to the respondent, the position had been explicit before the judge. The judge failed to deal with those submissions.
26. I reserved my decision.
27. The respondent argued what was at first sight a strong case that sympathy for the appellant’s position was much reduced by failure to raise with his application the main matter on which he now relies. On reading the form again, however, that point does not seem such a good one. The applicant filled in the appropriate part of the form, section 7 “family life as a partner (10 year route)”. Section 8, “family life as a parent (5 and 10 year routes)”, including the questions about the English language test and exemption, did not apply. I see nowhere else in the form where he was called upon to provide such information.
28. Some of the information the appellant provided with his application was weak, in particular his and his wife’s alleged inability to adjust to life in Pakistan. However, as a matter of compliance, it seems that everything asked for was meticulously completed.
29. There has been no reference by either party to the English language requirement as it appears in the rules now, or as it may have appeared at the date of application and decision by the respondent. In the version currently on the respondent’s website, the provision is in appendix FM at paragraph E-ECP.4.1.
30. As mentioned above, the decision letter does not appear to provide any comprehensible reasons for the outcome. I do not see in it any citation of paragraph E-ECP.4.1 or any reference to its substance.
31. The respondent’s rules, forms and procedures appear to make what should be a fairly straightforward matter bewilderingly complex. The terms of the application form and of the refusal decision do not begin to explain the outcome; it can only be discerned by expertise in matters to which no reference is made.
32. I do not suggest that the appellant’s approach through his previous representatives is above criticism. He may well not have made the correct form of application. He did not tackle the issue or provide any explanation of his difficulty. There can be no doubt from the statements that he and his wife both knew about language requirements. However, I do not see much in the argument that he failed to be forthcoming in terms of what was required of him by the form used.
33. Having tried to disentangle the history thus far, the first question is not whether there was error by the decision maker, but whether there was error of law by the FtT.
34. I see force in grounds 1 and 2 to the extent that the judge did not deal with the appellant’s argument that the respondent’s transitional arrangements and / or policy justified leave to give him further time to meet the language requirement.
35. I see nothing in the third ground or in any case along the lines of obstacles to family life being carried on in Pakistan or of any right to maintain family life in the UK, absent compliance with the rules. The appellant and his wife speak of difficulties and lack of connections, but their personal and immigration histories are such that those assertions are obviously of no substance.
36. What then should be the outcome of grounds 1 and 2?
37. Mr Khan said there had been evidence of trying, and an acceptance that the appellant had not got there yet, which should have been enough to show that he should have had two years leave, and therefore to allow the appeal.
38. Mrs O’Brien said that even in the FtT the appellant brought no evidence of inability to meet the language requirement of any efforts to do so, such as attending classes or attempting the test, so there was no scope to allow his appeal for that reason.
39. There was some evidence before the judge.
40. The appellant said in his statement, “I have attended classes in two different centres for English language. There is little improvement in my English. I attended school for three years only in Pakistan. I cannot read and write. I am trying my best to learn English”.
41. His wife said, “He is learning English with the help of our extended family members and I am sure he will pass.”
42. There is scant detail there, and nothing from third party sources such as course or test providers; but the respondent was represented at the hearing and there was no challenge by way of cross-examination or by submissions on this aspect.
43. In those circumstances, I conclude that there was evidence just sufficient to support the appellant’s case.
44. The determination of the First-tier Tribunal is set aside. The following decision is substituted: the appeal, as originally brought to the FtT, is allowed.
45. No anonymity direction has been requested or made.

3 March 2017
Upper Tribunal Judge Macleman