HU/12480/2015

• Status of case: Unreported
• Hearing date: 4 Oct 2016
• Promulgation date: 24 Oct 2016
• Publication date: 7 Apr 2020
• Last updated on: 7 Apr 2020

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/12480/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 4 October 2016
On 24 October 2016



Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

samia bushra malik
(ANONYMITY ORDER NOT MADE)
Appellant
and

SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent


Representation:

For the Appellant: Mrs Samia Bushra Malik (in person) and Mr Abdullah Malik (husband)
For the Respondent: Ms H Aboni, Senior Home Office Presenting Officer


DECISION AND REASONS

1. The appellant appeals with permission to the Upper Tribunal against the decision and reasons statement of FtT Judge Raikes that was promulgated on 16 February 2016.
2. Judge Raikes dismissed the appeal against the immigration decision of 24 November 2015 because the appellant had not satisfied the partner provisions set out in appendix FM to the immigration rules and because the decision was not contrary to s.6 of the Human Rights Act 1998 because the decision was proportionate in terms of article 8 ECHR private and family life rights. At the heart of Judge Raikes's decision is the finding that the appellant failed to provide the specified financial evidence with her application. It is immaterial that evidence was available at the date of hearing and currently to show that the financial requirements were and are met. The immigration rules required the evidence to accompany the application and the appellant acknowledges that did not happen.
3. Permission to appeal was granted on what is in essence a "near miss" argument. The Court of Appeal has made it clear that such an approach is not permissible because article 8 cannot be used to circumvent the immigration rules (see for example the decision in SSHD v KG (India) [2016] EWCA Civ 477). I cannot, therefore, find legal error in the decision and reasoning of Judge Raikes.
4. Because the appellant does not have a legal representative, in reaching my decision I have had regard to the decision and reasons as a whole. I find no obvious legal error in Judge Raikes's decision. All the evidence was considered both within and outside the immigration rules. The judicial findings are properly reasoned, particularly those relating to the issue of insurmountable obstacles.
5. Of course, I recognise the difficulties this outcome places on the appellant and her family. Ms Aboni advised that the appellant would be entitled to make a fresh application whilst staying in the UK as long as the application is made to the Home Office within 28 days of the conclusion of the appeal process (which is likely to be when this decision is issued). Otherwise, she will be treated as an overstayer and any application will have to be made from outside the UK. I cannot comment on such matters; it will be for the appellant to find independent legal advice to examine her options.
Decision
There is no legal error in the decision and reasons statement of FtT Judge Raikes and her decision is upheld.


Signed Date 24 October 2016

Judge McCarthy
Deputy Judge of the Upper Tribunal