Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/04456/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 October 2016
On 20 October 2016

Before

UPPER TRIBUNAL JUDGE PITT

Between

the Secretary of State for the home department

Appellant
and

JOSEPHINE [K]
(ANONYMITY DIRECTION not made)
Respondent

Representation:

For the Appellant: Mr T Melvin, Senior Home Office Presenting Officer
For the Respondent: Ms C Bexson, of Counsel

DECISION AND REASONS

1. This is an appeal against the decision promulgated on 6 May 2016 of First-tier Tribunal Judge Hendry which allowed the appeal of Ms [K] following a second stage Article 8 assessment.
2. For the purposes of this decision I refer to the Secretary of State as the respondent and to Ms [K] as the appellant, reflecting their positions before the First-tier Tribunal.
3. The background to this matter is that the appellant came to the UK in 2003 and was here unlawfully until 2011. During that period, she had a relationship with a British national and on the basis of that relationship was granted leave from 6 March 2011 to 5 March 2014. However, the relationship was characterised by domestic violence which left her traumatised and, sadly, during that relationship the appellant suffered three miscarriages. The relative seriousness of the abuse she suffered was not disputed and nor were her mental health difficulties arising from that abuse, compounded by her HIV diagnosis.
4. After leaving her abusive partner, the appellant formed a new relationship with a close family friend, Mr [A]. Due to her mental health difficulties and caution following her abusive relationship, she had not moved in with Mr [A], however, but maintained that they viewed each other as life partners who intended to be together for the rest of their lives.
5. First-tier Tribunal Judge Hendry refused the appeal under the Immigration Rules but allowed it outside the Rules after conducting a second stage Article 8 assessment.
6. The Secretary of State's grounds of appeal were as follows, verbatim:
"Material Misdirection in Law/Failing to Give Adequate Reasons
In considering Article 8 the it is submitted neither the appellant and her partner live together, nor are they engaged or married, they would be unable to meet the term partner within Gen1.2. It is respectfully submitted eh FTJ has given inadequate weight to the fact the appellant and her partner would thus be unable to meet the immigration rules in respect of appendix FM in carrying out the article 8 assessment.
Further in conducting the article 8 assessment, the FTJ does not follow the guidance in SS Congo in that it is preferable for the circumstances of an appellant ought to change rather than asking for preferential treatment outside the rule sat - [57].
'Generally, it is fair that the applicant should wait until the circumstances have changed and the requirements in the Rules are satisfied and then apply, rather than attempting to jump the queue by asking for preferential treatment outside the Rules in advance.'
It is also submitted in conducting the article 8 assessment, the FTJ has used Article 8 to circumvent the requirements of the immigration rules."
7. The Secretary of State's challenge, in essence, was that the First-tier Tribunal's approach to an Article 8 assessment outside of the Immigration Rules did not follow that set down as lawful and correct in SS (Congo) and in addition questioned the failure to address whether the appellant could be expected to seek entry clearance, a point clearly put to the judge by the Home Office Presenting Officer as recorded at [50] of the determination which states:
"50. In terms of proportionality, her new partner was also Ghanaian and they could establish their family life in Ghana, or she could return for a short time and apply to enter the UK from there. This was not a Chikwamba type of situation."
8. The Court of Appeal has provided clear guidance for an assessment of an Article 8 claim outside the Immigration Rules. The starting point for any consideration must be the significant weight to be accorded to the failure to meet the Immigration Rules; see Haleemudeen v SSHD [2014] EWCA Civ 558. It is now well understood that through Appendix FM and paragraph 276AD Parliament has identified those cases which can legitimately expect to succeed on Article 8 ECHR grounds. That is something which a judge must give proper weight to at the outset of any second stage Article 8 assessment.
9. It is also now well understood that it is only when there are other factors sufficient to outweigh the importance of Parliament's view as to what is in the public interest that the second stage Article 8 assessment can succeed. The Court of Appeal has set this approach out clearly in [29] of SS (Congo) v SSHD [2015] EWCA Civ 387, thus:
"It is clear, therefore, that it cannot be maintained as a general proposition that LTR or LTE outside the Immigration Rules should only be granted in exceptional cases. However, in certain specific contexts, a proper application of Article 8 may itself make it clear that the legal test for grant of LTR or LTE outside the Rules should indeed be a test of exceptionality. This has now been identified to be the case, on the basis of the constant jurisprudence of the ECtHR itself, in relation to applications for LTR outside the Rules on the basis of family life (where no children are involved) established in the United Kingdom at a time when the presence of one or other of the partners was known to be precarious: see Nagre, paras. [38]-[43], approved by this court in MF (Nigeria) at [41]-[42]."
10. It was argued for the appellant that the First-tier Tribunal did make proper reference to the weight to be accorded to public interest and the importance of the Immigration Rules. At [73] the judge referred to the provisions of Section 117 of the Nationality, Immigration and Asylum Act 2002. The judge identified that:
"Section 117B(1) specified that the maintenance of effective immigration controls is in the public interest."
11. Ms Bexson also took me to paragraph [79] of the decision which states as follows:
"I remind myself that the test is one of balance of the competing interests of each party. It is of course in the public interest that there is a consistent immigration policy and I note the provisions of s.19 of the Immigration Act 2014 which sets out the public interest considerations. However, in this case, there were particular difficulties arising from the appellant's fragile health and the impact a return to Ghana would have on her after the difficulties she had faced in recent years. In terms of her family life and particularly her attempts to have a child with her partner, following several miscarriages in recent years, her age and her HIV status, increased the weight of the argument on her side, and made it more likely that there would be a real interference with the family life of her and her partner if she was returned to Ghana."
12. In my judgement, neither in [79] or elsewhere in the decision does the First-tier Tribunal indicate that the starting point in the second stage Article 8 assessment was the failure to meet the Immigration Rules, the couple not being married, not being in a civil partnership and not having lived together for 2 years. Certainly, the First-tier Tribunal judge identified factors at [79] that arguably could have the potential to outweigh the public interest in which Article 8 cases should succeed but the consideration of those factors did not take place within the correct legal framework.
13. This error arises also at [72] in which First-tier Tribunal Judge Hendry states:
"There seemed little doubt in this appeal, also, that the concept of the 'near miss' arose. Had the appellant and Mr [A] lived together throughout their relationship, they would have met the criteria in Appendix FM. A number of relevant cases, indicated that this concept carried little weight on its own, but that it may be relevant to the consideration of proportionality."
14. That is a clear misdirection as the courts have consistently indicated that the concept of "near miss" does not have any role to play in the second stage Article 8 proportionality assessment. Rather, as above, the failure to meet the Immigration Rules is something which must be taken as a starting point which weighs against an appellant.
15. The second limb of the respondent's challenge also has merit. The First-tier Tribunal did not address the respondent's submission that the case could not be seen as exceptional or capable of requiring leave to be granted outside the Immigration Rules as the appellant could be expected to return to Ghana to seek entry clearance.
16. The only reference in the judge's assessment of Article 8 outside the Immigration Rules is in the final sentence of [75] which states only that the case of Chikwamba has been taken into account. The passage preceding that reference is only to the subjective evidence of Mr [A] and does not constitute a finding of the First-tier Tribunal that "even if returned for a short period of time", the appellant's mental health would deteriorate significantly and therefore impact significantly on the ability of the couple to continue their relationship.
17. Indeed, it is difficult to see how, without more explanation, that concluding that the appellant could not be expected to seek entry clearance was a rational conclusion here because, as recorded at [18] and [44], the appellant has been back to Ghana for short periods notwithstanding her HIV diagnosis and mental health issues. There does not appear to have been any evidence suggesting that she was in difficulty on those visits or that the relationship with Mr [A] was in difficulty at those times. The evidence was also, as recorded at [30], that Mr [A], still a Ghanaian national albeit he also has British nationality, also returns to Ghana once a year and nothing explains why the couple could not return together whilst the appellant sought entry clearance.
18. For all of those reasons it is my view that the First-tier Tribunal erred materially in the legal approach to the Article 8 assessment and failed to take into account material aspects of the evidence in that assessment. The decision must therefore be set aside to be re-made.
19. There was discussion before me as to the appropriate disposal of the matter if an error was found in the terms argued by the respondent. The submissions indicated that the appellant's circumstances have now changed as she is cohabiting with Mr [A] and she has further evidence regarding her mental health treatment in the UK on which she wishes to rely. After some consideration, this appeared to me to be a case where the second stage proportionality assessment to be conducted now is on a different factual basis to that conducted previously in the First-tier Tribunal and that it should therefore be remitted to the First-tier for that assessment to be made again on that new factual basis.

Notice of Decision

The decision of the First-tier Tribunal discloses an error on a point of law and is set aside.

The appeal will be remade in the First-tier Tribunal.

No anonymity direction is made.

Signed Date 20 October 2016
Upper Tribunal Judge Pitt