Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal no: IA 01900-11

THE IMMIGRATION ACTS

At Manchester & Field House
signed: 21.06.2013
on 03.08.2012 & 18.06.2013
Sent out: 24th June 2013

Before:
Upper Tribunal Judge
John FREEMAN

Between:
ZHANG Yumei
appellant
and

respondent
Representation:

For the appellant: Rory O’Ryan (on 3 August 2012) and Camille Warren on 18 June 2013: both counsel instructed by Amie Tsang & Co, Manchester)
For the respondent: Miss Caroline Gough (on 3 August 2012) and Mr Nigel Bramble on 18 June 2013

DETERMINATION AND REASONS
This is an appeal, by the , against the decision of the First-tier Tribunal (Judge Gillian Raikes), sitting at Stoke-on-Trent on 15 February 2011, to an article 8 appeal by a citizen of China. The appeal has been through a grant of leave by, and a hearing in the Upper Tribunal, and an application for permission to appeal to the Court of Appeal. Following that, a review took place under rr. 45 – 46 of the Tribunal Procedure (Upper Tribunal) Rules 2008, and the Upper Tribunal decision was sent aside, with directions, as a result of which I needed to consider in the first place whether Judge Raikes had made an error of law which required a re-hearing.

2. The review decision relied heavily on the decision of the Upper Tribunal (Lord Menzies and Judge Peter Lane) in Hayat (nature of Chikwamba principle) Pakistan [2011] UKUT 444 (IAC), since overturned by the Court of Appeal (Maurice Kay LJ, Vice-President, Elias LJ and Sir David Keene) in Hayat (Pakistan) [2012] EWCA Civ 1054 , published on 31 July. Elias LJ, for the court, set out the following principles, on the basis of Chikwamba [2008] UKHL 40 and other leading cases, at paragraph 30:
i. Where an applicant who does not have lawful entry clearance pursues an Article 8 claim, a dismissal of the claim on the procedural ground that the policy requires that the applicant should have made the application from his home state may (but not necessarily will) constitute a disruption of family or private life sufficient to engage Article 8, particularly where children are adversely affected.
ii. Where Article 8 is engaged, it will be a disproportionate interference with family or private life to enforce such a policy unless … there is a sensible reason for doing so.
iii. Whether it is sensible to enforce that policy will necessarily be fact sensitive; Lord Brown identified certain potentially relevant factors in Chikwamba. They will include the prospective length and degree of disruption of family life and whether other members of the family are settled in the UK.
iv. Where Article 8 is engaged and there is no sensible reason for enforcing the policy, the decision maker should determine the Article 8 claim on its substantive merits, having regard to all material factors, notwithstanding that the applicant has no lawful entry clearance.
v. [deals with the practice of the Court of Appeal]
vi. Nothing in Chikwamba was intended to alter the way the courts should approach substantive Article 8 issues as laid down in such well known cases as Razgar and Huang.
vii. Although the cases do not say this in terms, in my judgment if the Secretary of State has no sensible reason for requiring the application to be made from the home state, the fact that he has failed to do so [sc. that the applicant has not done that] should not thereafter carry any weight in the substantive Article 8 balancing exercise.
3. Issues of law While the Secretary of State’s appeal in Hayat was allowed (and the other appellant’s appeal dismissed), I do not think there is anything to be gained by discussing the facts of either case. The question is whether the judge in the present case failed to apply the principles set out by the Court of Appeal, whose decision was not of course available to her. Mr O’Ryan divided the grant of permission to appeal to the Upper Tribunal against her decision into three points, which I have given names for convenience:
(a) [the funding point] the judge failed to give proper reasons for not being satisfied that there would be adequate maintenance and accommodation for the appellant without recourse to public funds, given that she took this point into account against her on her proportionality assessment at paragraph 30 (e);
(b) [the family life point] the judge made findings about the appellant’s relationship with her husband (at 30 (b) – (d)), which were inconsistent with the judge’s acceptance at paragraph 32 of concessions made in the Home Office refusal letter, to the effect that
… the Appellant and his wife [sc. the appellant and her husband] have been in a relationship and married on 6 September 2010 and that the Appellant has established a family and private life in the United Kingdom.
(c) [the immigration history point] this was not one of those comparatively rare cases (though it does not involve children), where an article 8 appeal should be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad “particularly given that the appellant did not have an appalling immigration history”.
4. Appellant’s immigration history At this point it may be useful to set it out. The judge recorded, though apparently not from Home Office sources, that the appellant, now 52, had arrived and been given six months’ leave to enter as a visitor in 2004. The Home Office heard no more from her, till on 5 March 2010 she applied for, and on 4 August got a certificate of approval under the procedure then in force to marry Mr George Emmott, now 80 and a citizen of this country, and on 6 September 2010 she did so. Meanwhile on 23 August, in the course of an appointment with the registrar of marriages, she was served with notice of illegal entry, and on 17 September responded with an application for leave to remain as the wife of Mr Emmott, which was refused on 18 November. On 20 December the appellant was given notice of the decision to remove her as an illegal entrant. This was the decision which gave her the right of appeal on human rights grounds which she exercised.
5. Conclusions on error of law There was a good deal of argument before me on all three of the points at 3; but, given the conclusion I have reached, I can give my views on them fairly shortly.
(a) While the judge did not deal with the availability of funding in the detail which would have been required in a case under the Immigration Rules, she did indicate in general terms at paragraph 30 (e) why she was not satisfied on this point. It was for the appellant to satisfy her, and she did not do so.
(b) It was perfectly open to the judge to accept that the appellant and Mr Emmott had established a family life together here, but at the same time to make negative findings as to how close it was: on the other hand, the findings made in this case might be thought to point in the direction of their having no genuine family life at all.
(c) While the appellant’s immigration history might not be ‘appalling’, in the same sense as that of Ekinci [2005] EWCA Civ 1482, it was quite bad enough to provide a ‘sensible reason’ in terms of Hayat for the Home Office to insist, other things being equal, that she should apply for leave from abroad.
6. The difficulty to my mind with the judge’s decision in this case is that it did not satisfactorily resolve the question of whether the appellant’s marriage to Mr Emmott was a real one, in the sense that they were living together as man and wife, and not in the way of a front put up, at least on the appellant’s part, to get her leave to remain in this country to which she was not otherwise entitled. The Home Office for their part had evidently been satisfied at the time of the marriage that it was not a sham, or they would either not have issued the certificate of approval for it as they did on 4 August 2010, or would have taken steps to revoke the certificate, and so prevent the marriage, following the immigration officer’s visit to the registry office on the 23rd. It seems that the judge took the same view, given her finding on the existence of family life between the appellant and Mr Emmott.
7. On the other hand, the judge’s findings at 30 b) and c) go back to the differences in recollection between the appellant and Mr Emmott as to when and how they had first met. According to the appellant’s application form, and Mr Emmott’s recollection, this had been in or about March 2009; but the appellant had some difficulty remembering, and gave a date of September 2008. Both effectively agreed that they had met through another Chinese lady who ran a shop in the Arndale Centre in Manchester: the difference was between the appellant suggesting that they had both known this lady before, apparently contrary to Mr Emmott’s evidence about himself, and possibly as to Mr Emmott’s evidence that the appellant had been part of a “group of girls” with whom he had gone out to dinner.
8. The judge’s finding at 30 (d) is in a slightly different category: it refers to the appellant’s not having told Mr Emmott that she was an overstayer till his interview with the immigration officer on 23 August 2010 made that plain. That might relate to their closeness or otherwise at the date of their marriage. On the other hand, there is the acceptance by the Home Office and the judge that even so the marriage was no sham; and the lack of any findings on the part of the judge relating directly to the quality of the family life they had at the date of the hearing before her.
9. If the appellant and Mr Emmott had gone through a ceremony of marriage which was a complete sham, then there would have been no need for the Home Office to call on any rule about making such applications from abroad: this appeal would simply have failed on its merits. Equally, a similar appeal by someone with a truly appalling immigration history would almost inevitably have failed on the basis that there was an unanswerable ‘sensible reason’ for requiring her to apply from abroad. On the other hand, an application by someone whose leave had fairly recently expired by the date of her marriage, or her application, who had a clearly solid marriage, with no funding problems, might have expected to have succeeded on the merits of her article 8 case, on the basis that there was no ‘sensible reason’ for requiring her to make an application from abroad.
10. By the date of the hearing this appellant had spent about seven years in this country, only the first six months (if she is right about her visit visa) with any kind of leave, and after that only the last two years with the knowledge of the Home Office. She says, which may well be true, that she stayed so long to be with her son, who first came as a student, and later had some form of post-study work leave. Her other explanation was that she didn’t know English, and so had no means of seeking to regularize her situation: the judge (see 30a) did not accept this, and was clearly entitled to her view on that.

11. There was another negative point against the appellant on her immigration history, which is that she had kept Mr Emmott in the dark about it, till the immigration officer appeared at the registry office. Again she claimed to have had language problems when she tried to explain the situation to Mr Emmott; but again the judge was fully entitled to take the view that, if she was as close to him as she claimed, then she would have made sure he knew. What this finding by the judge does make clear is that Mr Emmott was not to blame for what happened. According to her (see 37), he
… indicated that her lack of status did not present a particular problem to him once he had knowledge of it, given his age, health and circumstances the omission of such information calls into question the intentions of the Appellant when entering into the relationship.
12. That seems to me like a more polite way of saying that the judge was not satisfied that the appellant had intended to enter into a genuine marriage, because she had chosen to keep Mr Emmott in the dark about it. The reference to Mr Emmott’s health was about his having an emergency gall bladder removal, “complicated by negative septicæmia” in about 2009, and continuing to suffer what had been provisionally diagnosed as rheumatoid arthritis, affecting his hands and other joints, leaving him according to his GP “unable to do his shoe laces or hold a cap [sc. cup]”. According to Mr Emmott and the appellant she does all the cooking and cleaning in their house, making sure that he does not have the fatty foods with which he could not cope without a gall bladder, and also helps him put on his shoes and socks in the morning.
13. While the judge may have been justified in saying (at 39) that Mr Emmott could look after himself, in the sense of not absolutely needing the sort of care which would be provided in a nursing or similar home, he clearly relies on the appellant very much, and the judge’s finding that there was no evidence that her having to go back to China, either to apply for a visa or to live there “… would significantly disrupt and affect them” may be much more open to question. While the judge certainly took account of Mr Emmott’s rights, mentioning Beoku-Betts [2008] UKHL 39, in the end it is on this part of the case that I consider that the judge needed more clearly to resolve the potential discrepancy between her acceptance of family life at 32, and her suggestion at 37 that the appellant had effectively been exploiting her proposed marriage, only a few days before it, in her own interests.
14. While the present situation may well not be incompatible with the appellant’s having set out to get a British citizen for a husband, whatever his age or health, so as to be allowed to remain in this country with her son, so far as Mr Emmott’s article 8 rights are concerned, those had to be assessed as at the date of the hearing. If it were accepted that by this time that the appellant remained together with him out of genuine mutual love and affection, then he would clearly not only have some difficulty in coping while she was away, even if that were only for the length of time (as to which there is no evidence) that it would take her to get her visa. On the other hand, if the appellant’s motives were not genuine, Mr Emmott would risk losing her altogether, once she had leave to remain in this country.

15. That in my view was the main reason why the judge needed to resolve the question about the appellant’s current motives in staying with Mr Emmott more clearly than she did, in what was otherwise both a very clear and a very careful decision. The result was inevitably a fresh hearing, which did not take place till 18 June 2013, when it was listed for London, so as to avoid any further delays.
16. Fresh hearing Not only the appellant and Mr Emmott gave oral evidence, but her son Mr Wang Xiaoguang as well. These are the relevant events, some of which have already been referred to: the source is given where the date depends on the oral evidence.
2004 appellant comes to visit Mr Wang and overstays
March 2009 appellant says she and Mr Emmott meet
October Mr Emmott taken into hospital to have part of gall-bladder removed and develops pulmonary embolism
26 April 2010 Mr Emmott swears affidavit in support of application for certificate of approval for their marriage, also giving March 2009 as date of their meeting
4 August certificate of approval granted
23 August notice of illegal entry served on appellant
6 September appellant and Mr Emmott married
17 September appellant applies for leave to remain as his wife
18 November application refused
20 December decision to remove served
17. Issues Helpfully, Miss Warren and Mr Bramble were able to agree on a number of points:
(a) the appellant could not satisfy the current funding test for leave to enter or remain as a wife, under the present version of the Immigration Rules (incorporating HC 1038, HC 1039 and Cm 8599); but
(b) in one way or another, she could satisfy the previous (income support level) test (see KA and Others (Adequacy of maintenance) Pakistan [2006] UKAIT 00065).
The result of their agreement on these two points is that the appellant can only succeed under article 8 of the Human Rights Convention; but, since she can show that her basic maintenance could be provided for without further resort to public funds, over and above the pension received by Mr Emmott, funding provides no real obstacle to that.
18. The parties also agreed that
(c) if I had to consider the tests under the current Immigration Rules, then there would be ‘insurmountable obstacles’, given Mr Emmott’s age and state of health, to him and the appellant pursuing their family life together in China; and
(d) their marriage is clearly ‘subsisting’; so
(e) the only question to be decided under the Rules would be whether the marriage was also ‘genuine’, in the sense that it is a matter of mutual devotion, rather than some ulterior motive. There is no dispute but that this is the case, so far as Mr Emmott is concerned.
19. The result is that the main question of fact remaining for decision, either under the Rules themselves or under the Convention jurisprudence on article 8, is whether the appellant entered into and remains in the marriage for genuine reasons. The main, if not the only reason why the Home Office say that is not so is in her immigration history (see 10 – 11): this might also be a reason for considering it proportionate to the legitimate purpose of to require the appellant to return to China and apply for a wife visa from there.
20. Evidence The appellant said she was still here, in 2009 following what should have been a six months’ visit to her son, simply because she hadn’t been able to find a lawyer or anyone else to help her regularize her situation with the Home Office: I did not hear any suggestion as to how this might have been achieved without the intervention of Mr Emmott. Her son, for his part, had been helped get the visa extensions he had needed by his college..
21. Neither the appellant nor Mr Emmott say anything to speak of in their witness statements about how they met. In oral evidence they told me they had been introduced by a lady known as Mary (her Chinese name, or part of it, is Siao May) who ran a massage parlour in Manchester. Mr Emmott had used to go there almost daily, for some relief for his arthritis, and particularly his back: the appellant was a friend, rather than an employee of Mary’s. Asked why Mary hadn’t been called to give evidence, the appellant said she had just given birth: there was no letter, either from a doctor or Mary herself about that, and no statement from her either.
22. In about March 2009 (Mr Emmott was at best hazy on dates, but the appellant was able to give them), Mary had arranged for all three of them to go out to dinner together. They got on well, and Mary, not entirely seriously, had told Mr Emmott he should marry the appellant; but he had already decided that she was the one for him, and he asked her to do so as early as the following month, though she refused at that stage. As for how they talked to each other, he said “I understand her English, though it’s dodgy, and she understands me. Right from the start we more or less understood each other.” She says she told him then about her lack of immigration status: he couldn’t remember when she had told him; but it hadn’t been a problem for him in any case.
23. At this time Mr Emmott, who had been living on his own since he lost his wife some time in the previous decade, was still quite independent. He stayed that way for the time being, and he and the appellant went on seeing each other regularly. In October 2009 he was taken into hospital for an emergency operation on his gall bladder, and kept in for a month after developing a pulmonary embolism. It had been his daughter who took him in, and he didn’t know where the appellant had been at that time. He said “I could still look after myself reasonably well when I came out, but old age caught up with me. Everything started to go wrong; pains and all, that I didn’t have before. I asked her to marry me practically right away after I came out. It didn’t take long before she said yes: I browbeat her into it.”
24. Mr Emmott swore his affidavit for the certificate of approval in April 2010: in it he says the appellant had finally agreed to marry him on the 8th; by this time they were going out daily (as he explained, window-) shopping together, as they still do. He says she is “wonderful and caring”; but there is nothing about any dependency yet. However, he says by the time their marriage took place that September he was getting worse: the appellant moved in some weeks before the ceremony, and after that he had really not had to bother to look after himself.
25. Mr Emmott appeared for the hearing looking very neat in a jacket and well-tied tie, which he said he had done himself; but, because of the arthritis in his knees, he found it impossible to bend down, and so it was the appellant who put on his shoes and socks for him, besides cooking, cleaning and doing everything else around the house. He says he would be “devastated” if she had to go back to China: he would need a carer.
26. There are two letters from Mr Emmott’s GP, Dr Justyna Davis: on 3 December 2010 she simply records his hospital treatment that October, and that he was still under the hospital for his anti-coagulant treatment: he had been advised to have a carer, or at least someone with him when he was out and about. By 3 May 2013 Dr Davis also had to record Mr Emmott’s shortness of breath, following the embolism; and the diagnosis of ‘arthralgia of multiple joints’, which had been made by a consultant rheumatologist, under whose care he remained for that. It came out in recurrent swelling and chronic pain to his hands and knees; he also had pain and stiffness from osteoarthritis in his lower back.
27. Mr Wang said he was now a visa consultant, in partnership with the Bank of China; but when his mother overstayed her visit in 2005 he had still been studying at language school. He didn’t think she was using Mr Emmott to help her stay in this country: he asked, rhetorically, why she hadn’t made such an arrangement before? Mr Wang told me that by November 2011 he had been here ten years with leave, including the last two as a post-study work migrant, and had applied for and got indefinite leave to remain on that basis. He was married to a girl born in China, who had not had indefinite leave to remain herself when they married, and they had since had twins.
28. Conclusions The appellant was badly advised by her solicitors and counsel not at least to try to give evidence in English, however inadequate hers may have been: I gave her the opportunity to do so, with the interpreter standing by to help if necessary; but she declined. Without hearing her own words, it is hard for me to form any real first-hand assessment of her character and motives, not to mention the quality of her interaction with Mr Emmott; but I have to do my best.
29. I do not accept that the appellant was simply waiting helplessly in this country since 2005, for want of someone to advise her about how to sort out her position here, for the eventual arrival of Mr Emmott in 2010. Her son no doubt did have help from his college, so long as he was there; but by 2009 he had finished his studies, and gone out to work, work which has now led him into the immigration field himself. He has successfully taken advantage of the opportunity then offered by the system to get indefinite leave to remain, after ten years here on a temporary basis, and to marry a wife who had no other claim to it herself.
30. Then there is Mary: I do not accept that it was simply recent childbirth that kept her from being called to give evidence. If there had been any plan for her to do so, then no doubt a statement would have been taken from her at an early stage; but, quite extraordinarily in view of the issues raised, she is not even mentioned in either of the appellant’s, nor Mr Emmott’s statements (before the first-tier judge or before me). They do not seem to have mentioned her in their oral evidence before the judge either, other than (the appellant) as “a friend” or (Mr Emmott) “a Chinese lady”; however Mr Emmott does give her name as Mary in his certificate of approval affidavit. There is no explanation as to why Mary, as an established businesswoman in this country, could not have either given the appellant advice on her immigration situation herself , or at least pointed her in the direction of someone who could do so, rather than simply introducing her to a suitable English husband.
31. As for Mr Wang himself, no doubt he is delighted to see his mother with a good hope of being settled in this country, and able to see a lot of him and his family, no doubt giving some help with the twins. All that is entirely natural; but it hardly makes him a reliable independent witness as to her motives or feelings for Mr Emmott. I cannot think how the appellant could have regularized her status here before Mr Emmott came on the scene: though, as Mr Wang pointed out, she certainly had not tried to do so in any way before, including marriage, that may have been because no suitor with the necessary status had appeared.
32. In my view it is more likely than not that Mary, whose position as the owner of a massage parlour entirely fitted her for the rôle, acted not just as a friend to the appellant, but as a regular go-between. I think the appellant set out to get an English husband, and would not have married someone of Mr Emmott’s age, even if his health was better when they met, if it had not been for the need to get leave to remain for herself. She may have refused him when he first offered, as he says; but, if that was a tactic, then it would have been an entirely sensible one.
33. That rather negative finding rejects the genuineness of the marriage, from the appellant’s point of view, at its inception. However, I also need to consider the position now. She and Mr Emmott have been living together since shortly before their marriage in September 2010: since about that time, he has become more and more disabled by arthritis and shortness of breath, to the extent now set out in the 2013 GP letter, so that he is practically dependent on the appellant in most of the details of everyday life.
34. Mr Bramble understandably suggested to Mr Emmott that he regarded the appellant more as a carer than a wife, which Mr Emmott equally understandably denied. I don’t think any hard and fast line can be drawn: marriage for a man in his 80s, certainly one in Mr Emmott’s state of health, means something different from what it would for a younger man. Though a woman still in her 50s might like (and, subject to her immigration status, expect) something more, that does not necessarily mean that the appellant is still doing no more than using Mr Emmott as a means to an end.

35. The appellant has been living with and looking after Mr Emmott for nearly three years now, and, so far as his particular complaints allow, he looks well and happy and well cared for. I do not doubt for a moment that he would be “devastated” if she had to go back to China. No doubt he would be even more devastated if, once she got indefinite leave to remain as his wife, she were to leave him to his own devices. However he clearly does not believe that would happen; and, on balance, neither do I. If the appellant won this appeal outright, then the most she would get would be another three years’ discretionary leave to remain, or perhaps 2½, in line with the position of a wife under the Rules; and she could reasonably expect a close examination by the Home Office of her marital situation at that time.
36. So I do think Mr Emmott and the appellant are both living together in a genuine way as man and wife at the present time. The next question is whether she ought to be required to go back to China and apply for a wife visa in the proper form. I have found she overstayed, and deliberately set out to get herself an English husband as the only way of regularizing her situation; so from that point of view the answer should be yes: there is a strong public interest in not letting overstayers manipulate the immigration system to their own advantage like that.
37. Looking at the situation from Mr Emmott’s point of view, I agree with the judge that he more likely than not did not realize exactly what the appellant’s immigration situation was, till the immigration officer came and interrupted their meeting with the registrar of marriages. Of course it made no great difference to him, as he said himself. While it was certainly less than public-spirited of Mr Emmott to prefer his own happiness and comfort to the national interest in trying to maintain some semblance of a functioning immigration control system, it was also understandable, particularly at his age; and at least he was quite frank about it.
38. The information with which I have been provided from the UKBA web-site about visa processing times in China suggests that, while over half the settlement applications (60%) are dealt with inside ten working days (two weeks), it is eight weeks before the vast majority (93%) are decided on. Given the appellant’s immigration history in this country, and the other features of the case, any visa application by her would no doubt take somewhere near the upper end of that time-scale to run its course.
39. Taking Mr Emmott’s state of health as set out in the 2013 letter, together with the dependency he has undoubtedly acquired as a result of relying on the appellant for almost everything since their marriage in 2010, I think it would be seriously unsettling and distressing for him to have to part with her even for eight weeks. It might still be said that this was a situation they had brought on themselves; but that would be to overlook the rôle of the Home Office in granting the certificate of approval for the marriage.
40. The evidence suggests that neither Mr Emmott nor the appellant, following their certificate of approval application in April 2010, would have moved in together till their marriage was imminent, which it became on the issue of the certificate on 4 August. That state of affairs was jolted, rather than broken up, by the arrival of the immigration officer at the registry office to serve a notice of illegal entry on the 23rd; but the marriage was still allowed to take place, rather than the certificate being revoked, or the appellant detained, on 4 September.
41. The result is that the Home Office must bear a large share of the responsibility for Mr Emmott’s dependency on the appellant as it has developed over the 2¾ years since then. In the particular circumstances of this very exceptional case, I do not consider it necessary in the public interest to inflict on Mr Emmott even the distress which he would be caused by sending the appellant back to China for something like eight weeks for her to get a wife visa.
Appeal allowed
(a judge of the Upper Tribunal)