Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/13973/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 24th January 2017
On 26th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MISS LILIAN YANKEY
Respondent

Representation:
For the Appellant: Mr. D Mills, Home Office Presenting Officer
For the Respondent: Ms. J Rothwell, Counsel, instructed by One Immigration (Leicester)

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Hopkins promulgated on 5th October 2016. The appellant before me is the Secretary of State for the Home Department and the respondent to this appeal, is Miss Yankey. However, for ease of reference, in the course of this decision I shall adopt the parties' status as it was before the First-tier Tribunal. I shall in this decision, refer to Miss Yankey as the appellant, and the Secretary of State as the respondent.
2. The underlying decision that was the subject of the appeal before the First-tier Tribunal was the decision of the respondent dated 3rd December 2015 to refuse the appellant's application for leave to remain in the UK.
3. The appellant is a national of Ghana. Her immigration history and the background to her application is set out at paragraphs [3] to [9] of the decision of the First-tier Tribunal. The respondent's reasons for refusing the application made by the appellant are set out at paragraphs [10] to [12] of the decision. At paragraphs [13] to [19] of the decision, the Judge sets out the evidence before the Tribunal and at paragraphs [20] to [24] the Judge notes the relevant legal provisions. The Judge's assessment of the evidence and his conclusions are to be found at paragraphs [26] to [35] of his decision. The Judge found that there are insurmountable obstacles to family life with the appellant and sponsor continuing outside the UK, and thus the appellant meets the requirements of paragraph EX.1(b) of Appendix FM of the Immigration Rules.
The grounds of appeal and the appeal before me
4. The respondent submits that although in reaching his decision, the Judge refers to the decision of the Court of Appeal in Agyarko & Ors. -v- SSHD [2015] EWCA Civ 440, and the demanding test to be applied, the reasons given by the Judge for finding that the test is met, are inadequate and suggest that the Judge failed to apply the test properly. It is said that the Judge treated the inconveniences and difficulties advanced by the appellant as being determinative, whereas in Agyarko, the Court of Appeal had said that the mere fact that a person is a British citizen, has lived here all his life and has a job here - and hence might find it difficult and might be reluctant to re-locate to continue their family life, could not constitute insurmountable obstacles to his doing so.
5. Permission to appeal was granted by First-tier Tribunal Judge Zucker on 9th November 2016. The matter comes before me to consider whether the decision of the First-tier Tribunal involved the making of a material error of law, and if so, to remake the decision.
6. Before me, Mr. Mills adopted the respondent's grounds of appeal. He submitted that the respondent's challenge to the decision of the First-tier Tribunal is not that there is a lack of reasoning, but that the First-tier Tribunal Judge failed to properly acknowledge the stringent test that must be applied before a Tribunal can conclude that there are insurmountable obstacles to the family life between the appellant and her sponsor continuing outside the UK. He submits that what are presented as the insurmountable obstacles to the family life of the appellant and her sponsor continuing in Ghana here, are precisely the types of obstacles that the Court of Appeal found in Agyarko, could not constitute insurmountable obstacles. He submits that on the facts as found by the First-tier Tribunal Judge, the appellant cannot satisfy the demanding test, and high threshold that applies before an appellant can succeed under paragraph EX.1(b).
7. On behalf of the appellant, Ms Rothwell accepts that the test is a stringent one, but she submits that any assessment of whether that stringent test is satisfied, is one that is necessarily fact sensitive. She submits that at paragraphs [28] onwards of his decision, the Judge sets out the factual matrix and his findings against which the decision that the requirements of paragraph EX.1 are met, is reached.
Discussion
8. In Agyarko -v- SSHD [2015] EWCA Civ 440, the Court of Appeal held that although the 'insurmountable obstacles' criterion in Appendix FM of the immigration rules involves a stringent test, it was intended in case-law and the rules, to be interpreted in a sensible and practical, rather than a purely literal way [23]. It was used in the immigration rules to define one of the preconditions set out in paragraph EX.1(b) that needs to be satisfied, before an applicant could claim to be entitled to be granted leave to remain [24].
9. I accept, as Mr Mills submits, that the 'insurmountable obstacles' criterion provides a stringent test and imposes a high threshold. It is right that in Agyarko, the Court of Appeal found that the mere fact that a person is a British citizen, has lived all his life in the United Kingdom and has a job here - and hence might find it difficult and might be reluctant to re-locate to continue their family life there - could not constitute surmountable obstacles to his doing so.
10. The Judge repeatedly refers in his decision to the stringent test to be applied. The requirements of EX.1(b) are referred to at paragraph [22] of the decision. At paragraph [27] the Judge notes that the question is whether there are insurmountable obstacles to them continuing their family life together outside the UK within the meaning of paragraph EX.1 of Appendix FM of the Immigration Rules. At paragraph [28] of his decision, the Judge states there is no doubt that the appellant and the sponsor would face considerable hardship if they were to do so. The particular reasons for that conclusion, and importantly, why the sponsor would find it especially difficult to live in Ghana are set out at paragraphs [28] and [29] of the decision. At paragraph [31], the Judge, having noted the evidence before him at paragraphs [28] a [29] in particular, records that the question he had to consider is whether the difficulties in the appellant and the Sponsor continuing family life outside the UK are so great as to amount to very significant difficulties which could not be overcome or would entail very serious hardship for them. The Judge refers to the Court of Appeal decision in Agyarko and notes again that it is a stringent test. He states:
"? It is more demanding than a test as to whether it would be reasonable for the couple to continue their family life outside the UK (paragraph 21 in Agyarko)."
11. At paragraphs [32] to [33] the Judge refers to other evidence that was before him, and at paragraph [34] the Judge concludes:
"I have indicated that the test to be applied is more stringent than whether it would be reasonable for the Sponsor to continue his family life with the Appellant outside the UK. But, on the other hand, the test of insurmountable obstacles is a practical test, not a literal one. It could not be said, in my judgement, that the obstacles to their living together in Ghana are literally impossible to surmount. But, looking at the practical possibilities, it is not realistic for the Sponsor to relocate. This would mean that, if the Appellant were to be removed to Ghana, he would not be able to go and live there with her. I find he would face very significant difficulties in continuing his family life with the Appellant outside the UK which would entail very serious hardship."
12. In my judgement, it was properly open to the First-tier Tribunal to conclude, on the evidence, that the stringent and demanding test had been met. The matters advanced on behalf of the respondent in the grounds of appeal amount to nothing more than a disagreement with the findings of the Judge. The findings were reached following a careful consideration of all of the evidence that was before the Judge, from a number of witnesses.
13. It is now well established that what is required in a decision is that the reasons provided must give sufficient detail to show the parties and the appellate Tribunal, the principles upon which the lower tribunal has acted, and the reasons that led it to its decision, so that they are able to understand why it reached its decision. The reasons need not be elaborate, and need not deal with every argument presented. The Court of Appeal in R & ors (Iran) v SSHD [2005] EWCA Civ 982 held that a finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence.
14. The Judge properly directed himself, having considered the relevant provisions and the submissions made by the parties. The Judge found, on the evidence before him, that it is not realistic for the sponsor to relocate to Ghana. Thus, if the appellant were to be removed to Ghana, he would not be able to go and live there with her. The Judge found, on the evidence, that the sponsor would face very significant difficulties in continuing his family life with the appellant outside the UK, which would entail very serious hardship.
15. In my judgement, it was open to the Judge on the evidence before him and the findings made, to allow the appeal for the reasons he gave. There is no error of law and it follows that the appeal by the Secretary of State against the decision of the First-tier Tribunal is dismissed.
Notice of Decision
16. The appeal is dismissed and the decision of the First-tier Tribunal shall stand.
17. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Mandalia

TO THE RESPONDENT
FEE AWARD
The First-tier Tribunal made a fee award. I have dismissed the appeal, and the fee award made by the First-tier Tribunal shall stand.

Signed

Deputy Upper Tribunal Judge Mandalia