Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11441/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 October 2016
On 14 October 2016
Extempore

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

OLUMUYIWA ADEDURO
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: In person
For the Respondent: Miss S Fijiwala, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge S Gillespie sitting in Belfast, that decision being promulgated on 10 March 2016. Neither the appellant nor the Secretary of State were represented at that hearing, the appellant having elected for that decision to be dealt with on the papers.
2. In brief, the appellant is married to a British citizen. Both of them are in poor health, the details of those conditions being set out in some detail in the refusal letters and there is no need to record them here.
3. The Secretary of State, having initially been challenged by judicial review regarding inadequacies in the initial refusal letter, set out her case in a letter of 5 November 2015. In summary, she did not consider that although the couple were married that the requirements of paragraph EX1 or EX2 of the Immigration Rules were met and on that basis that the appellant did not meet the requirements of Appendix FM.
4. The respondent also concluded that as the appellant had not lived here for more than twenty years and there were no indications that there were extreme difficulties in the appellant reintegrating again into life in Nigeria that he did not meet the requirements of paragraph 276ADE of the Immigration Rules.
5. The respondent then went on to consider whether other than that there were any good reasons why the appellant should be given leave to remain in the United Kingdom and concluded that it would not be a breach of either Articles 3 or 8 of the Human Rights Convention for the appellant to be removed to Nigeria. This then gave rise to a human rights decision against which there is an appeal under the Nationality, Immigration and Asylum Act 2002 as amended.
6. In fairness to the judge there was limited material before him in the form of medical evidence relating to the conditions of either the appellant or his wife. There was a letter from one consultant to another but this does not indicate the difficulties that the appellant's wife would have in relocating to Nigeria, rather it is the kind of letter that one would expect from one consultant to another which sets out in brief detail the nature of the condition.
7. The judge, however, did not in his decision deal with the Immigration Rules, considering only the issue of Article 8 and presumably Article 3, although the latter does not appear to have been pursued before him with any great determination.
8. The judge concluded that the ill-health of the appellant and that of his partner was a factor to be taken into consideration of Article 8 but referred himself to GS (India) [2015] EWCA Civ 40, concluding that the medical condition of the appellant's partner was only one issue in determining whether there were exceptional circumstances. He concluded it would appear that both parties formed the relationship and married when they were unwell and the appellant's status as an overstayer would have to be taken into account and as a result found that the appellant's removal would not give rise to a breach of Article 8 because of exceptional circumstances arising.
9. The appellant then sought permission to appeal to the Upper Tribunal which was granted on 12 August 2016 by First-tier Tribunal Judge P J M Hollingworth who stated
"An arguable error of law has arisen in relation to the extent of the material available to the judge and in relation to the reaching of no conclusion in respect of the medical condition of the appellant's partner is a factor to be weighed in the proportionality exercise. The appeal had been dismissed under Article 8. It is arguable that under the heading of "Discussion and Conclusions" a fuller analysis should have been set out in relation to the application of the Razgar criteria and in relation to that the application of the criteria pursuant to Section 117. It is arguable that this so given the judge's reference to not being able to reach a conclusion on the papers at the outset of paragraph 18 in the context of the absence of any comprehensive commissioned medical evidence from a suitably qualified expert given the relationship between that statement and the finding that no exceptional circumstances arose."
10. I consider that the judge has fallen into error in this case in that he has failed properly to address the requirements of the Immigration Rules first, this being a necessary to precursor to asking the five questions outlined in Razgar.
11. It is also of note that the judge also completely ignores the appellant's own health problems in assessing Article 8. There is no indication that that or the health difficulties which are set out in significant detail in the refusal letter were factored into in assessing whether and if so they were met.
12. Further, and importantly, what the judge does is to ask whether there are exceptional circumstances arising. That is not the correct test. The test to be applied here having considered the Immigration Rules and bearing in mind also the factors to be taken into account in Section 117B of the 2002 Act whether removal would be proportionate. As the grant of permission indicate, there is no basis on which it could be said that the proper approach to Article 8 has been followed in this case in that firstly, important evidence appears not to have been taken into account. Second, there is no indication of whether the requirements of the Rules were considered which would have been relevant to whether the decision was proportionate.
13. In the circumstances I do find that the decision involved the making of an error of law and I set it aside. It will be necessary, I consider, for a full remaking of this decision and accordingly I remit this decision to the First-tier Tribunal for a fresh decision on all material matters.
SUMMARY OF CONCLUSIONS
1 The decision of the First-tier Tribunal involved the making of an error of law, and I set it aside.
2 I remit the decision to the First-tier Tribunal for a fresh decision on all material issues.

Signed Date: 13 October 2016

Upper Tribunal Judge Rintoul