Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08714/2020
UI-2021-001547

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 28th April 2022
On the 23rd June 2022

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

sukanya khamma
(anonymity directioN NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr L Youssefian, Counsel, instructed by Paul John and Co
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Cartin (“the judge”), promulgated on 16 September 2021. By that decision, the judge dismissed the appellant’s appeal against the respondent’s decision, dated 27 November 2020, refusing her human rights claim.
2. The appellant is a citizen of Thailand, born in 1994. In 2019 she married Mr Niwat Chanphumi (“the sponsor”), a Thai citizen who has had limited leave to remain in United Kingdom at all material times. On 17 July 2020, the appellant made an application for entry clearance in order to join the sponsor. This was deemed to constitute a human rights claim. The refusal of that claim gave rise to right of appeal, which was duly exercised.
The decision of the First-tier Tribunal
3. It was accepted before the judge that the appellant could not succeed on Article 8 grounds with reference to the Immigration Rules (“the Rules”). This was because the sponsor did not have settled status. Her case was essentially run on the basis that the sponsor would have obtained indefinite leave to remain earlier, but had not done so only because of a failure to pass the relevant English language test. This had resulted in him being granted an additional period of limited leave to remain. He was, it was said, on a pathway to settlement. Further, once he had accumulated 15 years’ continuous lawful residence in this country, he would have been able to take a less stringent English language test (level A2). That point in time would fall in October 2022. Therefore, it was argued, the appellant should have been permitted to join the sponsor in the United Kingdom as there was no real public interest in continuing their separation.
4. In respect of the route to settlement issue, reliance was placed on GM (Sri Lanka) [2019] EWCA Civ 1630. Paragraph 34 contains the following passage:
“It follows that a person who could be said to be on a pathway to settled status might, in relative terms, be in a stronger position than one with DLR who was not on such a pathway and this relative position needs at least to be taken into account in the proportionality, fair balance, assessment. It might be correct that in both cases the rights may still be said to be “precarious” but nonetheless the nature of the rights actually held was a relevant consideration to be taken into account. Yet here they were not.”
5. The judge accepted the proposition set out above, but went on to conclude that the sponsor’s inability to have passed English language tests in the past, in combination with the fact that he used a Thai interpreter at the hearing, demonstrated that it could not be assumed that he would pass the A2 test and therefore the passage from GM (Sri Lanka) did not assist the appellant: [24]-[26].
6. Having noted that the sponsor was not a “qualifying partner” for the purposes of section 117B of the Nationality, Immigration and Asylum Act 2002, the judge went on to conduct a balancing exercise outside the scope of the Rules. Against the appellant was the maintenance of effective immigration control and the fact that the Rules could not be satisfied. The judge appeared to proceed from the premise that persons in the sponsor’s position could be assumed to intend to leave the United Kingdom because they were not settled here: [28].
7. On the appellant’s side of the balance sheet, the judge made reference to section 117B(2) and section 117B(3) of the 2002 Act, noting that the appellant had “met the English language requirements and was not economically dependent on the state. These were both said to be “neutral” considerations: [29i] and [29ii].
8. The remaining five factors which were apparently weighed on the appellant’s side of the balance sheet were, on their face, actually unfavourable to her Article 8 claim. These included: the couple’s knowledge of precarious immigration status when they married; the absence of any hardship by virtue of continued separation; the ability to visit each other; and the “very weak” nature of their family life.
9. In light of the foregoing, the appeal was duly dismissed.
The grounds of appeal and grant of permission
10. The concise grounds of appeal put forward two points: first, that the judge was wrong to have effectively concluded that the sponsor was not on a pathway to settlement and had therefore failed to take account of a relevant consideration in light of GM (Sri Lanka); second, that the judge’s balancing exercise was flawed.
11. Permission was granted on both grounds.
The hearing
12. Mr Youssefian put forward persuasive submissions on the appellant’s behalf. In essence, he submitted that the pathway to settlement issue was free-standing and did not require there to be any guaranteed grant of indefinite leave to remain at the end of that route. The judge had erred in failing to recognise this. The judge had not appeared to appreciate the lower level of the A2 English language test and in any event had not provided a rational basis for finding that the sponsor would not pass the test and/or was not on the pathway in question. The use of a Thai interpreter at the hearing could not support such a finding.
13. The judge’s error on the first issue undermined the rest of his proportionality assessment, including the question of how long the appellant might be separated from the sponsor.
14. In addition, whilst the judge had purported to weigh up number of matters said to be in the appellant’s favour, in fact they were either neutral or counted against her. The proportionality assessment was flawed.
15. I pressed Mr Youssefian as to whether any of the errors alleged could have been material to the outcome. In response, he submitted that to conclude that they could not be material would involve reading too much into the judge’s decision.
16. Mr Melvin submitted that the appellant’s challenge was nothing more than a disagreement with the judge’s findings. There had been a fact-sensitive assessment and there were clearly no exceptional circumstances in the case. The appellant’s case had been bound to fail. If indeed the sponsor passed the lower-level English test in October 2022, he could apply for indefinite leave to remain and the appellant could make an application to join him in this country.
17. At the end of the submissions on the error of law issue, I indicated to the parties that I would be reserving my decision. However, it was my firm view that if I found errors of law to exist, I would not remit the appeal to the First-tier Tribunal. Further, might strong provisional view was that I could and should go on and re-make the decision in the appeal based on the evidence before the First-tier Tribunal.
18. Mr Youssefian initially urged me to consider remitting the case. Alternatively, he submitted that a resumed hearing should take place at which the sponsor could give oral evidence. This would be “prudent”, given the nature of the errors committed by the judge. Having informed him that I still required submissions on the re-making issue at this stage (in order that I could better assess whether a resumed hearing was in fact necessary), Mr Youssefian made the following points, in addition to the submissions already provided.
19. It was submitted that the family life between the appellant and the sponsor was not “weak”, but rather demonstrated a “strongly committed relationship”. The couple had withstood the Covid pandemic and maintained a genuine relationship over the course of time. If the sponsor had to wait until October 2022 to take the English language test, that would constitute a further period of separation from the appellant. Given that the failure to have passed on English language test thus far was the only barrier to the sponsor obtaining indefinite leave to remain, Mr Youssefian submitted that this case represented what he described as an “inverse Chikwamba” scenario: there was no public interest in forcing the couple to remain separated simply on the basis of an English language test. The sponsor was “to all intents and purposes” living in the United Kingdom as a settled person. An inability to meet the Rules was not fatal to the Article 8 claim, as shown by GM (Sri Lanka).
Conclusions on error of law
20. I am cognisant of the need to exercise appropriate restraint before interfering with a decision of the First-tier Tribunal. It is incumbent on me to read the judge’s decision sensibly and holistically and not to require, for example, reasons for reasons.
21. I have given very careful consideration to the error of law question in this particular appeal. My provisional view was that there might have been errors, but it was difficult to see how these could have been material to the outcome. However, on further reflection I have concluded that there are indeed errors of law which, considered cumulatively, meet what is a relatively modest threshold for materiality.
22. I accept Mr Youssefian’s analysis of the passage quoted from paragraph 34 of GM (Sri Lanka) earlier in this decision. The proposition stated therein cannot have been tied to any guaranteed outcome of an application for indefinite leave to remain at the end of the pathway to settlement: that would always be impermissibly speculative. Rather, the Court of Appeal was making the point that the fact of an individual being on a pathway to settlement is a free-standing relevant consideration. By definition, the individual is still on the pathway at the time of consideration: if it were otherwise, he/she would already have obtained indefinite leave to remain and would no longer be on the pathway at all.
23. In my judgment, the judge erred in his to this particular consideration. He clearly had significant reservations about the sponsor’s ability to pass the English language test, given previous failings and the use of. Yet these concerns went to the question of whether he would satisfy the English language requirement once he reached the end of the pathway and applied for indefinite leave to remain, not to his position as at the date of the hearing. At that date, it was plainly the case that the sponsor was indeed on a pathway to settlement (having been granted limited leave to remain pursuant to paragraph 276A2 of the Rules).
24. Therefore, whatever the judge’s concerns were as to the sponsor’s ability to pass the relevant test in due course, he erred in law by failing to take account of the fact that the sponsor was on a pathway to settlement, this being a relevant consideration pursuant to GM (Sri Lanka).
25. This error was material because it led directly to (or at least played a part in) the judge’s assumption that the sponsor would leave the United Kingdom at the expiration of his current period of leave to remain. I agree with Mr Youssefian’s submission that this assumption was flawed as a result of the error on the pathway to settlement issue. In turn, I am satisfied that this erroneous assumption played a material part in the judge’s conclusion that the couple could remain separated for a seemingly indefinite period. But for the error on the pathway to settlement issue, the judges ultimate conclusion on the proportionality could conceivably (I certainly would not put it any higher than that) have led to a different outcome.
26. For the sake of completeness, I agree with Mr Youssefian’s submission that the judge’s reliance on the use of a Thai interpreter at the hearing did not, in the context of this case, provide a rational basis for finding that the sponsor would pass not a A2 level English test later in 2022.
27. In addition to the first material error of law, and satisfied that the judge erred in his approach to the balance-sheet assessment. In particular, whilst [29] purports to consider the “Pros” (i.e. factors weighing in the appellant’s favour), in fact none of the points set out in that paragraph could possibly be described as favourable. Indeed, the first two were properly described as “neutral”, whilst the remaining five were decidedly adverse to her.
28. I held reservations at the hearing as to whether this error was material, but am just about persuaded that it was, when it is combined with the first error discussed above. Mr Youssefian was bound to accept that neither the grounds of appeal nor the underlying evidence before the judge disclosed factors which the judge had failed to take into account, other than those which were the subject of discussion at the hearing before. However, the first error feeds into the second and, in all the circumstances, the materiality threshold is met.
29. In light of the above, I set the judge’s decision aside. I do not preserve any findings of fact made in the context of contentious matters.
Re-making the decision
Procedural issue: appropriate disposal
30. I have concluded that, in all the circumstances, it is fair for me to go on and re-make the decision in this appeal without either remitting the case or conducting a resumed hearing in the Upper Tribunal. My reasons for this are as follows.
31. First, it is the normal practice of the Upper Tribunal to re-make the decision in any given case based on the evidence before it, subject to a consideration of all relevant circumstances.
32. Second, it is plainly inappropriate to remit this case to the First-tier Tribunal. The relevant factual matrix is limited in scope and material aspects of it are undisputed. The Upper Tribunal is well-placed to re-make the decision for itself.
33. Third, I have all the evidence which was before the judge and there has been no application pursuant to rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to adduce further evidence. Indeed, there is no suggestion that there is further relevant evidence which was intended to be adduced. Mr Youssefian’s reference to oral evidence from the sponsor was, with respect, speculative. I am able to make the relevant (and limited) findings of fact on the evidence before me and then go on and take all relevant considerations into account when conducting an Article 8 assessment.
34. Fourth, a number of Mr Youssefian’s submissions made in the context of the error of law issue are pertinent to any re-making of the decision in this case and I will take these into account. In addition, I invited and received further submissions on a possible re-making at the end of the hearing and have had full regard to these.
Findings of fact
35. Based on the evidence before the First-tier Tribunal and having regard to matters which have clearly not been in dispute in these proceedings, I make the following relevant findings of fact.
36. The appellant married the sponsor in September 2019. Prior to that they had met each other on one occasion in 2018. They have spent approximately two weeks together since first meeting. At all material times, couple knew that the sponsor’s status in United Kingdom was not settled.
37. The appellant lives with family members in Thailand and there are no difficulties in respect of accommodation, health, or other practical matters.
38. The sponsor came to the United Kingdom in October 2007. He has been granted periods of limited leave to remain and I accept that the only reason why he has not been able to successfully apply for indefinite leave to remain is his inability to have passed the relevant English language test. I accept that the sponsor has been, and remains, employed and that he has adequate accommodation. In all the circumstances, I find that the sponsor is indeed on a pathway to settlement in the United Kingdom.
39. I am prepared to accept that the sponsor can speak English to an extent. Whilst a clear assessment of the precise ability is difficult to undertake, I am also prepared that his ability is likely to satisfy the low threshold set by the A2 level, which is described by the Common European Framework of Reference as “elementary”.
40. I find that the sponsor is healthy.
41. The judge described the appellant’s family life with the sponsor as “very weak”. On my assessment of the evidence as a whole, I find that this does not accurately describe their relationship. I find that it is, and always has been, genuine and committed. It is true that they have spent very little time together and there are no specific features which demonstrate particularly strong aspects of family life. However, the point is that they remain committed to one another notwithstanding a period of separation. I accept their evidence that they miss each other.
42. It is likely that the couple have been communicating through social media platforms during the period of their separation. There is nothing to indicate that visits by the sponsor to Thailand have been impossible by virtue of his financial circumstances. I find as a fact that he would be able to visit the appellant.
43. I am prepared to accept that the Covid pandemic would have played a role in the inability of the couple to see each other over the course of the last two years. I do not have details of relevant restrictions relating to Thailand, but it is highly likely that some were in place, at least for significant periods of time since early 2020.
The Article 8 assessment
44. There is clearly family life between the appellant and the sponsor. The respondent’s decision continues to interfere with that family life. The decision is in accordance with the law and it pursues the legitimate aim of maintaining effective immigration control (an element of the maintenance of United Kingdom’s economic well-being).
45. The core issue is whether the respondent’s decision is proportionate.
46. I begin my consideration of that issue with the uncontroversial proposition that the maintenance of effective immigration control is in the public interest and this weighs in the respondent’s side of the balance.
47. Next, I consider the Rules. The Rules are Article 8-compliant, although they do not represent the end-point of a proportionality assessment.
48. It is, and always has been, clear that the appellant cannot satisfy the Rules: the sponsor is not a person who is “settled” in the United Kingdom. The core reason for this is the fact that he has been unable to pass a required English language test. That test is a mandatory requirement of the relevant Rules. Contrary to the suggestion by Mr Youssefian that the English language criterion was something of a peripheral requirement, in my judgment it represents an important aspect of the Rules, going as it does to the respondent’s ability to be satisfied of a formal recognition of proficiency.
49. In the present case, there is no reason, by way of exceptional circumstances, as to why the appellant has been unable to pass the English language test thus far.
50. In all the circumstances, I place considerable weight on the appellant’s inability to satisfy the Rules. This is not inconsistent with my finding that the sponsor is likely to be able to pass an A2 level English test in due course. As matters currently stand, the Rules are not met.
51. I have found that the sponsor is on the pathway to settlement. I take this into account as a free-standing consideration, pursuant to what was said in GM (Sri Lanka). This counts in the appellant’s favour, but, in the circumstances of this case, only to a relatively limited extent. All other things being equal, there would plainly be no insurmountable obstacles to the sponsor leaving United Kingdom and joining the appellant in Thailand. He is a citizen of that country and would clearly be able to re-integrate, notwithstanding his lengthy residence in the United Kingdom. There are no health issues or other factors which would create substantial barriers. However, I accept that this course of action would entail the probable loss of the opportunity to obtain indefinite leave to remain in this country. That consequence would be significant to him.
52. In weighing that significant consequence against the absence of any other features of the case which could amount to insurmountable obstacles to the sponsor’s relocation to Thailand, I conclude that to expect him to make that move would not be disproportionate.
53. If I were wrong in law about that (or if the sponsor simply chose not to pursue that option), I go on and consider the question of whether any continued separation of the couple is proportionate.
54. There has been a not insubstantial period of separation thus far and I take this into account. That must, however, be placed in context. The couple have not spent very much time together and that cannot be attributed entirely to the Covid pandemic. Yet, the pandemic will have contributed to any difficulties in the sponsor visiting Thailand.
55. There are no features of this case which, of themselves or in combination with others, go to show particularly compassionate circumstances (for example, relating to health or children).
56. I do not accept Mr Youssefian’s submission that this case represents an “inverse Chikwamba” scenario and that the appellant’s appeal should be allowed on that basis. The appellant cannot satisfy the Rules because her spouse is not “settled” and that is because he in turn has been unable to satisfy a mandatory requirement of the relevant Rules applicable to persons in his position. There is an essential distinction drawn between the partners of British citizens and those with “settled” status on the one hand, and, on the other hand, all others. That distinction is an integral aspect of the maintenance of effective immigration control and should not be categorised as merely a “technical” or peripheral matter.
57. In addition, this case does not involve a state of permanent separation, or even one which has no reasonably foreseeable end-point. On my findings, the sponsor will be able to take the A2 level English test in October of this year and is likely to pass it. That is only a matter of six months, which, in the context of this case, is not close to constituting a disproportionately lengthy period of time. In that regard, I take into account the absence of any compelling features and the fact that the couple have seen very little of each other as it stands (certainly not all of which can be put down to the Covid pandemic).
58. If/when the sponsor passes the English language test, it is more likely than not (or at least reasonably foreseeable) that he will apply for and be granted indefinite leave to remain. He would then be “settled”. The appellant could in turn make an application for entry clearance. There is no evidence before me to indicate that the couple’s financial circumstances are, or would be, such that this course of action would be prohibitively expensive.
59. In terms of section 117B(2) and section 117B(3) of the 2002 Act, the appellant be maintained and (for the purposes of this appeal) I am prepared to assume that she herself speaks reasonable English. These considerations are of neutral value.
60. Having balanced the competing considerations, I conclude that the continued, and temporary, separation of the appellant from the sponsor is proportionate and that the respondent’s decision is not unlawful.
61. The appellant’s appeal is accordingly dismissed.
Anonymity

62. The First-tier Tribunal made no anonymity direction. There is clearly no sound reason for me to make such a direction in the Upper Tribunal.

Notice of Decision

63. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

64. I exercise my discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and set aside the decision of the First-tier Tribunal.

65. I re-make the decision by dismissing the appeal.

Signed: H Norton-Taylor Date: 29 April 2022

Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed: H Norton-Taylor Date: 29 April 2022

Upper Tribunal Judge Norton-Taylor