Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/07805/2015

THE IMMIGRATION ACTS

Heard at Bradford UT
Decision & Reasons Promulgated
On 28th September 2016
On 14th October 2016

Before

DEPUTY upper tribunal judge ROBERTS

Between

ISHTIAQ RAHEEM
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Janjua, Janjua & Associates
For the Respondent: Mrs Petterson, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant a citizen of Pakistan appeals with permission to the Upper Tribunal against the decision of a First-tier Tribunal dismissing his appeal against the Respondent's refusal of his human rights claim, that he should be granted leave to remain as the partner of a British national.
2. The Respondent's grounds of refusal, amounted to saying that as a starting point the Appellant could not meet the Immigration rules and therefore a decision requiring him to leave the UK, was not a disproportionate breach of his Article 8 ECHR family/private rights. In particular the decision maker had regard to paragraph EX.1.(b) in Appendix FM and found that there were no insurmountable obstacles to the Appellant's family life with his UK partner continuing abroad. In addition the Appellant could not meet the private life requirements of Rule 276ADE.
3. The Appellant appealed the Respondent's decision. It is correct to say that the only matter with which the Appellant took issue, centred on that part of the decision where the Respondent found that the Appellant could not meet the English language requirement as set out in the Rules. His claim amounted to saying that the Respondent wrongly rejected his English language test certificate because she failed to follow her own policy relating to transitional provisions for ELT certificates and thus deprived him of the benefit of that policy. The FtT recorded that no other substantive grounds of appeal were put in issue by the Appellant.
The FtT's Decision
4. When the appeal came before the FtT, it was heard on the papers at the Appellant's request. The judge had before him two documents which he set out in [11] reproduced below.
"(a) His original Graded Examination in Spoken English ('GESE') Entry Level ESOL (Speaking and Listening) CEFR Level A1 with Merit certificate issued by Trinity College on 10 April 2014 in respect of an exam which he took at the premises of Extra Learning UK ("ELUK") at 104 High Street, Smethwick in March 2014, plus a letter from ELUK to UKBA dated 7 March 2014 confirming that he had taken the test that day, had achieved level A1 and was awaiting his certificate from Trinity College;
(b) His original Graded Examination in Spoken English ('GESE') Entry Level ESOL (Speaking and Listening) CEFR Level A1 with Merit certificate awarded by Trinity College on 29 September 2015 in respect of the same exam which he took at the premises of Extra Learning UK at 104 High Street, Smethwick in March 2014."
5. The judge also set out at [4] to [9] that the Respondent had refused the application because the Appellant could meet neither EX.1.(b) nor 276ADE and that no ground had been put in arguing exceptional circumstances outwith the rules.
6. He then spent the greater part of his consideration setting out that the transitional provisions of the Rules regarding the ELT requirements did not avail the Appellant and therefore he could not meet that provisions in the Rules. He also clearly set out however in [21] that the Appellant took no issue with his inability to satisfy EX.1.(b), and did not pursue an appeal against the decision not to grant him Article 8 relief outside the Rules. He dismissed the appeal. I pause here to record that the Judge incorrectly in his decision notice said that he dismissed the appeal "under the Rules." There was no appeal under the Rules. The appeal before him was a restricted appeal on Human Rights grounds. In the event I find that this error of itself is not sufficient to set aside the decision, as will be seen from my reasoning later in this decision.
Onward Appeal
7. The Appellant sought and was granted permission to appeal. The grounds seeking permission argued that the FtT had wrongly applied the transitional provisions relating to the ELT and that therefore the Respondent's decision in respect of the Appellant's application to remain on account of his family/private life was unlawful. Permission was granted in terms focussing solely on that issue.
Thus the matter comes before me to decide initially whether the decision of the FtT contains an error of law requiring it to be set aside and remade.
The UT Hearing
8. Before me Mr Janjua appeared for the Appellant; Mrs Petterson for the Respondent. I heard brief submissions from both representatives. Mr Janjua's submissions reiterated the grounds seeking permission. He had no further evidence to call.
9. Mrs Petterson, who had only been served with the appeal papers shortly before the hearing, defended the FtT's decision on the following basis. She emphasised that what was before the FtT was an Article 8 family/private life appeal only. This was the only route of appeal open to the Appellant. Therefore whether or not the Appellant should be given the benefit of the ELT transitional provisions was to a great extent immaterial to this appeal. The Appellant had disagreed with the Respondent's decision on that one ground only. Even if it were to be accepted that the Appellant could meet the ELT requirements, nevertheless he had not shown that the Respondent's decision was a disproportionate interference with his Article 8 rights. The Appellant had not argued against his inability to satisfy EX.1.(b), nor that 276ADE applied. Therefore there was no real evidence to show that the Appellant could satisfy the Immigration Rules and although the grounds seeking permission did mention that the Appellant's partner had recently lost her father and was under pressure because of her work commitments, those factors fell far short of that required to show insurmountable obstacles to family life continuing in Pakistan. In short she submitted the Appellant's appeal should be dismissed.
Consideration
10. I find I am satisfied that the decision of the FtT contains no material error requiring it to be set aside and I now give my reasons for this.
11. Mrs Petteren was quite correct to submit that what was before the FtT was an appeal limited by the changes implemented in the 2014 Immigration Act. Whilst I accept that the FtT Judge appears to give the impression in his decision notice that what was before him was an appeal under the Rules this was incorrect. However the saving grace in this decision is that he makes a clear finding at [21] that the Appellant took no issue with his inability to satisfy EX.1.(b) and it would seem there was no evidence led about his inability to satisfy 276ADE.
12. Mr Janjua came to the hearing expecting simply to argue that it does appear that transitional arrangements did exist which meant that the ELT certificate held by the Appellant was acceptable as evidence that the language requirements were met. Following on from that, Mr Janjua's argument is that the appeal should simply be allowed as "unlawful". I disagree with that submission. It is clear from the jurisprudence that the Rules are a starting point in any Article 8 consideration and the fact that the Appellant may be deemed to satisfy the English language test may well diminish the public interest in the maintenance of immigration control. However it remains that no issue was taken by the Appellant before the FtT of his inability to satisfy EX.1.(b) of the Rules.
13. For the sake of completeness I refer to the grounds seeking permission which uses the phrase "insurmountable obstacles" in the context of the Appellant's partner going through emotional and mental hardship. It is said that the sponsor has suffered a miscarriage and that is undoubtedly a sad event. Her father has died adding to her mental stress. However whilst not seeking to diminish the impact of those events, the evidence falls far short of that required to show that these amount to insurmountable obstacles to their family life continuing abroad. For those reasons the Respondent's decision does not amount to a disproportionate interference with the Appellant's Article 8 rights and this appeal is dismissed.

Notice of Decision

This appeal is dismissed. The FtT's decision stands.

The Appellant's appeal against the Respondent's decision to refuse him leave to remain is dismissed.

No anonymity direction is made

Signed C E Roberts Date 13 October 2016

Deputy Upper Tribunal Judge Roberts

TO THE RESPONDENT
FEE AWARD

I make no fee award because the Appellant's appeal has been dismissed.

Signed C E Roberts Date 13 October 2016

Deputy Upper Tribunal Judge Roberts