Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06940/2018

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 28 March 2019
On 1 April 2019

Before

UPPER TRIBUNAL JUDGE LANE

Between

UMAIR [M]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Wilkins, instructed Berwicks, solicitors
For the Respondent: Mrs Pettersen, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant was born on 31 July 1988 and is a male citizen of Pakistan. He entered the United Kingdom in April 2011 as a student. He was subsequently granted leave to remain as a spouse. That marriage was ended by a decree absolute in the Family Court in Liverpool dated 20 February 2019. The appellant applied, outside the Immigration Rules, for leave to remain on the basis of his relationship with [RK] (hereafter referred to as the sponsor). By a decision dated 5 March 2018, the Secretary of State refused that application. The appellant appealed to the First-tier Tribunal which, in a decision promulgated on 3 July 2018, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The appellant claimed that he was the victim of domestic violence in his marriage but had not formally sought leave form the Secretary of State to remain on that basis. He also argued that the sponsor is a Portuguese citizen exercising Treaty Rights in the United Kingdom; the appellant claims that he is in a durable relationship with the sponsor. The judge found that the appellant had failed to make an application on the basis of domestic violence and he attached little weight to medical evidence regarding the appellant's mental difficulties arising from his marriage. The judge gave reasons for not considering the claim of domestic violence is a significant factor in the Article 8 appeal. Further, the judge did not accept that the appellant was in a durable relationship with the sponsor but, in the alternative, found that, when the relationship had lasted for 2 years, he would, very soon after the First-tier Tribunal hearing, be able to apply for a residence card in the normal way. As at the date of the hearing, any right to remain as a family member of an EU failed to outweigh the public interest concerned with the appellant's removal. Accordingly, the appeal was dismissed on Article 8 grounds.

EU: Durable relationship
3. The appellant challenges the decision on the basis that the judge failed to carry out any proper evaluation of the oral evidence which he heard regarding the nature and durability of the relationship between the appellant and sponsor. The appellant also claims that the judge failed to have regard to all the written evidence of cohabitation. At [59], the judge wrote:
"At the hearing, I noted that the sponsor is a Portuguese national and that the appellant may have rights under EU law. However, when reviewing the papers, I noted that the sponsors passport was only issued on 30 June 2016. As she has been living with the appellant as an EU national fullest in two years. In any event, the appellant has not provided sufficient evidence to show that he is her durable partner and he cannot rely on any rights under EU law."
4. Whilst I agree with Miss Wilkins, who appeared for the appellant before the Upper Tribunal, that it is inherently unlikely that the sponsor became a Portuguese citizen on the same date on which her passport was issued, I find that it was open to the judge to conclude that the couple, whilst they were living together as at the date of the hearing, had failed to show that their relationship as at that date capable of being described as durable in the sense that it had lasted for at least two years. At [28], the judge discussed the supporting evidence of the relationship and concluded that there was a 'potential family life' between the couple. The point which the judge makes is that, whilst accepting the sponsor and appellant live together and are in a relationship, they had failed to show that that was a durable relationship. That was a finding which was open to the judge on all the evidence. I acknowledge that judge has not discussed in detail the oral testimony of the appellant but I am satisfied that he has had regard to all the evidence in reaching his findings. Further, I do not agree that the judge has ignored documentary evidence, namely a letter dated 8 July 2016 which the appellant claims confirms the length of the claimed cohabitation. The judge was not required to refer to each and every item of evidence in his decision. I am also not satisfied that the letter in question would have compelled the judge to make a finding that a durable relationship existed as at the date of the hearing. As I have said, I am satisfied that the judge has considered both the oral and written evidence before reaching his findings.

Domestic Violence
5. The judge found that the appellant had not made an application for leave to remain as a victim of domestic violence although he observed that the Tribunal should consider the circumstances which surrounded the breakdown of the appellant's marriage as part of the 'wider proportionality assessment.' The appellant challenges that conclusion on the basis that the judge should have made a finding as to whether the appellant was the victim of domestic violence. The judge has carried out a detailed analysis of the evidence concerning the appellant's mental health and at [48] attached little weight to the therapist's report. He treated with caution the appellant's claim that his family had disowned him on account of the breakdown of his marriage. It is significant that the judge found that the only source of evidence to support the appellant's claim that the abuse at the hands of his former wife had caused him mental difficulties was the very therapist's report which the judge found offered only limited assistance. I agree that it would have been helpful following this part of the analysis which concludes at [55] if the judge had summarised his findings in respect of the domestic violence claim. However, the judge correctly found that the appellant did not satisfy the rule as regards domestic violence but I find that his analysis is adequate for the purposes of his evaluation of proportionality in the Article 8 appeal.
6. Finally, the grounds of appeal complained that the judge incorrectly referred to the appellant being returned to Gambia; he is a citizen of Pakistan. Ms Wilkins did not press this point in her oral submissions and she was right not to do so. It would have been helpful if the judge had proof read his decision more carefully but I do not regard the error as significant or in any way undermining of the judge's analysis.
7. In conclusion, I am satisfied that the judge has considered all relevant evidence in reaching his determination of this appeal. It was open to the judge, for the reasons he has given, to give limited weight to the allegations of domestic violence. It was also open to the judge to find that the appellant had failed to prove that he was in a durable relationship with an EU citizen. Since it was the durability of the relationship rather than its existence which was of importance in the appeal, I do not accept that the judge has made contradictory or irrational findings. In the circumstances, the appeal is dismissed.

Notice of Decision
8. This appeal is dismissed.

Signed Date 28 March 2019

Upper Tribunal Judge Lane