Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/13877/2017

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 16th November 2018
On 14th January 2019

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

ZAHEER AHMED KHAN
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr A Tan (Senior Home Office Presenting Officer)
For the Respondent: Mr F Aziz (Maidstone Solicitors)

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal, with permission, by the Secretary of State in relation to a decision of Judge Atkinson in the First-tier Tribunal promulgated on 25th July 2018. For the sake of continuity and clarity I will continue to refer to Mr Khan as the Appellant and the Secretary of State as the Respondent in this judgment.
2. Judge Atkinson was hearing the appeal of a Pakistani citizen born on 15th November 1975 who had arrived in the UK on 29th August 2007 as the spouse of Shazia Khan with a visa valid until August 2009. Prior to the expiry of that leave the Appellant applied for further leave and was granted discretionary leave until October 2013 followed by a further grant of discretionary leave, outside the Immigration Rules until 23rd May 2017.
3. On 17th May 2017 the Appellant made an application for indefinite leave to remain outside the Rules. That application was refused on 18th October 2017 and was the subject of the appeal before the First-tier Tribunal.
4. The Appellant had made his claim on human rights grounds. He relied upon his relationship with his wife and also an established private life in the United Kingdom.
5. Judge Atkinson's decision indicates that the Appellant accepted that there had been difficulties in his marriage because his wife had not conceived a child. It was said that his wife, at the time of the hearing, was too upset to provide documentation in support of the Appellant's application.
6. The Secretary of State refused the application on the basis that she was not satisfied that the Appellant had demonstrated that his family life with his wife was continuing, which had been the basis of his earlier grant of discretionary leave. The Secretary of State noted a lack of satisfactory documentation relating to the couple having cohabited in the period after 2010 including from 2014 onwards and that the documents that had been submitted were inconsistent as to the Appellant's address. Additionally, the Secretary of State had not granted leave on the basis of the Appellant's private life as the Appellant did not meet the ten-year period required.
7. The Judge accepted the Appellant's explanation for the lack of documentation and inconsistencies with regard to his address. He found the Appellant to be a credible witness and allowed the appeal on human rights grounds.
8. It was accepted the Appellant could not meet the requirements of the Immigration Rules.
9. The Secretary of State applied for and was granted permission to appeal to the Upper Tribunal on the basis that the Judge had found the relationship between the Appellant and his wife to be subsisting and that they continue to live together despite a total absence of evidence from the Appellant's wife. The Appellant's spouse had not attended the hearing or provided any witness statements to support the Appellant's assertion with regards to difficulties in their marriage which the Judge had accepted. Although the Appellant had been granted discretionary leave previously, based on his relationship with his wife, this had not been demonstrated appropriately before the Judge.
10. The Judge granting permission to appeal noted that the main reason for the Respondent's refusal of the application was that the Appellant had failed to meet the evidential burden of establishing that his relationship with his wife, the basis of his previous grants of leave, was still subsisting. The Appellant's wife had neither given evidence, provided a statement nor submitted any documents to support the Appellant's case. The Judge found it arguable that the Judge's conclusion that the marriage was subsisting was perverse.
11. Having carefully considered the evidence that was before the Judge, I agree that in the complete absence of any evidence from the Appellant's wife to support the Appellant's the claim that the marriage was subsisting the Judge's acceptance of the Appellant's unsupported evidence was an error of law. His conclusion was not supported by evidence. That being the reason for the appeal having been allowed, that error is clearly material. Mr Aziz did not seek to argue otherwise with any force.
12. It was agreed by both parties that the appropriate action was for me to set aside the Decision and Reasons of the First-tier Tribunal in its entirety and remit the matter to that Tribunal to be heard by another Judge de novo.
Notice of Decision

The appeal is allowed to the extent that the Decision and Reasons is set aside and the matter remitted to the First-tier Tribunal for a full rehearing before any Judge other than Judge Atkinson at Manchester.

There having been no application for an anonymity direction and the First-tier Tribunal not having made one, I see no justification for directing anonymity and do not do so.

Signed Date 3rd January 2019

Upper Tribunal Judge Martin