Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07068/2017

THE IMMIGRATION ACTS

Heard at Manchester Civil Justice Centre
Decision & Reasons Promulgated
On 30th November 2018
On 31st January 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

mr Baljinder kumar
(ANONYMITY direction not made)
Appellant
and

Entry Clearance Officer - ukvs sheffield
Respondent

Representation:
For the Appellant: Mr T Hussain (Counsel), Hussain Immigration Law Limited
For the Respondent: Mr A McVeety (Senior HOPO)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Myers, promulgated on 17th August 2018, following a hearing at Bradford on 6th August 2018. In the determination, the judge allowed the appeal of the Appellant, whereupon the Respondent Secretary of State subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a male, a citizen of India, and was born on 1st May 1980. He appealed against the decision of the Respondent dated 22nd May 2018, refusing his application for leave to enter the United Kingdom as the partner of a British citizen, namely, his sponsoring wife, [DL], who was present and settled in the UK.
The Reasons for Refusal
3. The reasons for refusal by the Respondent were that the Appellant had entered the UK initially on an illegal basis on 13th April 2005. He had then remained until 3rd April 2016. He then left to go back to India on a voluntary basis. He had been refused leave to remain in the UK on suitability grounds as he had failed to declare an assumed different identity. Accordingly, the issue was satisfied that the Appellant had contrived in a significant way to frustrate the intentions of the Immigration Rules. Although the Appellant may have a family life with his sponsoring wife, the ECO was satisfied that the decision was proportionate under Article 8 as well. The ECM upheld the decision on 6th October 2017, with the observation that despite the fact that the Appellant had voluntarily departed from the UK, he was not able to sufficiently mitigate his unlawful residence in the UK for the preceding ten years, when he lived here without valid leave.
The Judge's Findings
4. The judge heard evidence from the sponsoring wife, [DL], who stated that she and the Appellant married on 12th December 2014, following a previous failed marriage from which he had two elder children. She was a civilian worker for the Greater Manchester Police and owned her own home. In the refusal letter it had been suggested that the Appellant had used the name of "Baljinder Kumat", as an alias for his real name of "Baljinder Kumar", and the Appellant denied this, claiming that this was a typing error. It must have been abundantly plain to anyone with any knowledge of Indian names that this was indeed an error. There is no such name as "Kumat", whereas there is a well-known Indian surname by the name of "Kumar". The judge properly held that this was indeed a typing error, and no issue arises from this. (See paragraph 26).
5. The judge then went on to consider paragraph 320(11) of the Immigration Rules, and observed that the power to refuse is couched in discretionary terms (paragraph 22). The judge observed that the Respondent had accepted that the Appellant was in a genuine and subsisting marriage relationship with his sponsoring wife. She had stated that she could not relocate to live with the Appellant in India and the judge found that, on balance, it would be unreasonable to expect her to do so because, she is a British citizen who has lived in the UK for most of her life. Although her two children are now adults they are in a close relationship with her and both are presently living with her together with the son's wife. All her other family and friends are in the UK and she would have to give up her job to go to live in India". Moreover, it was not in dispute that "she has had some serious health conditions and it would be unreasonable to expect her to forgo the benefits of entitlement to NHS care" (paragraph 28).
6. On the other hand, the judge did accept that the Appellant's entire stay in the UK "has been unlawful and he has shown scant regard for the immigration laws of the UK" (paragraph 29). However, the Appellant met the requirements of Appendix FM because "he returned to India voluntarily" (paragraph 30).
7. In conclusion, the judge held that "this decision is finely balanced, but overall, I find that the decision to refuse entry clearance is disproportionate as having found that it is unreasonable to expect the Sponsor to live in India, it is likely their separation would be indefinite because any future application by the Appellant would also be refused under 320(11) and so for these reasons the appeal was allowed on Article 8 grounds (see paragraphs 31 to 32).
Grounds of Application
8. The grounds of application state that the judge was wrong to have allowed the appeal on the basis that the refusal of entry clearance would be disproportionate.
9. On 28th September 2018 permission to appeal was granted on the basis that, having the judge concluded at paragraph 29, that little weight would be given to the Appellant's family life with his wife, and there were aggravating circumstances which would normally justify refusal of entry clearance under paragraph 320(11), the judge concluded that the Appellant's wife's inability to relocate to India was said to outweigh the public interest in refusal of entry clearance.
10. On 16th October 2018 a Rule 24 response was entered by Mr T. Hussain, of Counsel, appearing on behalf of the Appellant. First, it was submitted that the Secretary of State had spent the entire grounds arguing that this was a leave to remain application, whereas it was in fact a leave to enter application. The facts of this case were that the Appellant had left the UK and made a lawful application to enter the UK. Second, the Secretary of State argued that the Appellant should not be granted entry, but this argument was rejected by the Tribunal Judge, IJ Myers. What the Secretary of State was now doing was attempting to reargue the point which had already been rejected. Third, this was in short nothing more than a challenge to the weight that the judge should have given to various aspects of the evidence, including the proportionality and public interest, but it was for the judge who came to an ultimately sustainable conclusion, to decide whether or not the Secretary of State could succeed, and she had decided that the Appellant's appeal must be allowed, because the burden upon him had been discharged. The findings of the judge were neither plainly wrong nor unsustainable in the light of R [2005] EWCA Civ 982, at paragraph 90.
Submissions
11. At the hearing before me, Mr McVeety, appearing as Senior Home Office Presenting Officer on behalf of the Respondent, stated that she had to allow the appeal because if she did not, then the Appellant would not be able to enter the UK under paragraph 320(11) in the future (paragraph 31). The judge had not followed the correct approach for consideration of Article 8 cases outside of the Immigration Rules as set out in TZ (Pakistan) [2018] EWCA Civ 1109. The judge did not identify any exceptional circumstances. This is because these did not exist. Yet, the Secretary of State's policy was that leave should only be granted where exceptional circumstances apply. By this is it meant that circumstances in which refusal would result in unjustifiably harsh consequences for the person concerned. The legality of this policy was tested in Agyarko [2017] UKSC 11. In this case the Sponsor's circumstances originated mainly from the fact that she had lived all her life in the UK, and that this made relocation difficult, but this was not to say it made it unreasonable. The Appellant's spouse may prefer to remain in the UK, but choice had little to do with the relevant assessment of Article 8 considerations. In fact, in Agyarko, being a British national, with access to benefits of such citizenship, was rejected by the Court of Appeal, as insurmountable or exceptional, in Agyarko.
12. Secondly, the judge found that the Appellant's relationship with his sponsoring wife was formed when both of them were aware that he had no immigration status and consequently little weight should be given to family life so developed. The settled jurisprudence of the European Court of Human Rights is that only in exceptional cases would an Article 8 case succeed where an unsettled migrant has commenced family life in the UK at a time when his immigration status is precarious. This was clear from Jeunesse v Netherlands [2016] 60 EHRR 17.
13. For his part, Mr Hussain submitted that the Court of Appeal judgment in Agyarko had actually be superseded by the Supreme Court's decision, which, (at paragraph 59 to 60) makes it clear that the test of exceptionality does not import a highly usual feature to the claim. This was a case where the judge had found against the Appellant, where he was culpable in terms of his breach of the immigration laws, but had then also found in favour of the claim succeeding, for reasons given, which included the inability of the sponsoring wife to relocate to the UK, where she had a family life with her children, with one of his married sons actually living with her.
14. Second, the Sponsor's medical condition was properly set out (see the Appellant's bundle at page 151 to 156) and the judge was correct to come to the conclusion that the sponsoring wife, as a British citizen, was entitled to the benefits of citizenship in this country, by being able to access healthcare where she was settled. Third, the grounds of appeal focus upon a situation where the application is for leave to remain, rather than leave to enter, and the grounds were misconceived to that extant. The judge had observed that there was a genuine and subsisting marriage relationship. The Sponsor was in need of medical treatment. She worked for the Greater Manchester Police. She had a home in the UK. Her children lived with her. Her husband, the Appellant, had returned voluntarily. The application that the Appellant had made from India disclosed all these matters, which were of concern to the Respondent, so that nothing was hidden from the Secretary of State.
15. Third, the assessment of the public interest was well undertaken by the judge here, where the end concluded that "this decision is finely balanced" (paragraph 31). In all the circumstances of this case, this was nothing more than a disagreement with the decision of the judge.
No Error of Law
16. I am satisfied that the making of the decision by Judge Myers did not involve the making of an error of law, such that it falls to be set aside (see Section 12(1) of TCEA). My reasons are as follows.
17. First, the judge properly comes to the conclusion that the Respondent had correctly exercised discretion in refusing the application under paragraph 320(11), "and this is relevant in making any Article 8 proportionality assessment) (paragraph 27). The judge then goes on to look at the Appellant's individual circumstances (at paragraph 28), observing that he is in a genuine and subsisting relationship with his sponsoring wife, who is a British citizen, in close relationship with her adult children, in circumstances where she has had "some serious health conditions" herself (paragraph 28). The judge then balances this consideration as against the Appellant's stay in the UK noting that "he has shown scant regard for the immigration laws of the UK" and that they had formed a relationship together when they were both aware that the Appellant had no immigration status (paragraph 29). The judge then concluded that the Appellant met the requirements of Appendix FM, and that he returned to India voluntarily. In this regard, the judge even held that "the Appellant voluntarily left the UK, albeit when he had no other option, and then sought to regularise his status by correctly applying for entry clearance" (paragraph 30). There can be no disagreement in the precise language used here and the manner in which this properly takes into account exactly what has happened. Finally, the judge then concludes that "this decision is finely balanced", but that overall, the decision to refuse entry clearance is disproportionate because "it is unreasonable to expect the Sponsor to live in India" and that "it is likely that their separation would be indefinite because any future application by the Appellant would also be refused under 320(11)", and this as a finding of fact, was a finding that the judge was able to make, on the basis of her assessment of the facts as were represented before her. Any disagreement with this is a disagreement with the decision, unless it can be said that as a matter of law such a conclusion is wrong.
18. Second, as a matter of law, the conclusion was not wrong. This is because in Agyarko, the Supreme Court observed (at paragraph 42) how in Jeunesse, the Grand Chamber had identified "a number of factors to be taken into account in assessing the proportionality under Article 8 of the removal of non-settled migrants". It had said that:
"Relevant factors were said to include the extent to which family life would effectively be ruptured, the extent of the ties in the contracting state, whether there were 'insurmountable obstacles' in the way of the family living in the country of origin of the national concerned, and whether there were factors of immigration control ?".
19. However, even more relevant is the fact that the Supreme Court explained that:
"The Secretary of State has not imposed a test of exceptionality in the sense that the case should exhibit some highly unusual feature, over and above the application of the test of proportionality. On the contrary, she had defined the word 'exceptional', as already explained, as meaning circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate" (paragraph 60).
20. This is precisely how the judge approached the issues before her. She viewed the matter as one of proportionality. She did not look for "some highly unusual feature". She then concluded that the refusal "would result in unjustifiably harsh consequences for the individual" concerned, in a manner that made the decision disproportionate. Another Tribunal may well have come to a different conclusion. However, given the way in which the judge in this case had approached the facts of the appeal before her, such a conclusion was one that was open to the judge to reach. This Tribunal, exercising a supervisory jurisdiction, cannot interfere with that conclusion.
Notice of Decision
21. The decision of the First-tier Tribunal did not involve the making of an error of law. The decision shall stand.
22. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 15th January 2019