Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07403/2014

THE IMMIGRATION ACTS

Heard at Birmingham
Determination Promulgated
On 28th August 2014
On 30th September 2014

Before

UPPER TRIBUNAL JUDGE HANSON

Between

SAYDA BEGUM
(Anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Martin of Counsel.
For the Respondent: Mr Mills - Senior Home Office Presenting Officer.

DETERMINATION AND REASONS
1. This is an appeal against a determination of First-tier Tribunal Judge Sangha promulgated on 8th May 2014, following a hearing at Birmingham on 16th April 2014, in which he dismissed the appeal under both the immigration rules and on human rights grounds against the refusal to vary the Appellant's leave to remain and a direction for her removal from the United Kingdom.
2. The Appellant is a citizen of Bangladesh born on 18 April 1991 who entered the United Kingdom as a visitor on 22nd June 2013 with leave to remain valid to 2nd December 2013. On 26th October 2013 the Appellant submitted an application for leave to remain on the basis of being a partner of a British citizen present and settled in the United Kingdom. The application was refused and a contemporaneous removal direction issued pursuant to section 47 Immigration Asylum and Nationality Act 2006 on the basis the Appellant did not meet the requirements of Appendix FM or paragraph 276ADE of the Rules.
3. Having considered the oral and documentary evidence the Judge set out his findings from paragraph 16 of the determination which can be summarised as follows:
i. Some elements of the Appellant's evidence were lacking in credibility. The assertion she would not be able to return to Bangladesh because her family had disowned her as she has married a man with two children was found to be lacking in credibility bearing in mind the Appellant and her partner knew each other when they were in Bangladesh meaning it is likely the family were aware of the circumstances. The evidence in relation to whether the Appellant maintained contact with her family lacked credibility as did the claim that she had married without consultation with her family and whether her partner was aware of her immigration status as the evidence in relation to this matter was contradictory when given by the Appellant and her partner [17].
ii. It is accepted by the Appellant's representative that she does not meet the requirements of Appendix MM of the Rules. During the course of the hearing arguments based on Articles 2 and 3 ECHR were withdrawn leaving the only outstanding issue that of Article 8 ECHR [18].
iii. Having considered the domestic case law the Judge concluded there were no compelling compassionate circumstances in the case. The application was made at a time the Appellant was in the United Kingdom with a visit visa and clearly falls outside Appendix FM. The Appellant is not married to her partner in a marriage recognised in English law [19].
iv. The Judge specifically finds "the reality in this case is that the Appellant and her partner simply feel that it is more convenient for her to remain here, rather than to properly comply with the Rules in order to seek entry clearance. In my assessment there is nothing to stop the Appellant from returning to Bangladesh in order to apply for entry clearance in the proper manner in order to join her husband in the UK and her removal is not unjustifiably harsh" [19].
v. There are no non-standard features of this case that persuaded the Judge otherwise. The partner can remain looking after his daughters in the UK whilst the Appellant applies from Bangladesh and they can maintain contact with one another. It was also found there are no insurmountable obstacles to family life continuing in Bangladesh and/or unjustifiably harsh consequences resulting. Both parties were aware of the Appellant's immigration status. The Appellant's partner is in sole charge of his children and has cared for them a number of years [19].
4. Permission to appeal was sought by the Appellant acting in person in which she asserts legal error in the findings of the Judge in relation to Article 8 ECHR. Permission was granted by First-tier Tribunal Judge V Osborne on the basis she considered it arguable that the Judge failed to give full consideration to the Appellant's rights under Article 8 outside the Immigration Rules; especially bearing in mind there are three children involved, the Appellant was eight months pregnant with the child due to be born in May 2014, and living in a family unit with her husband who cares for the two children of his previous marriage aged seven and eight years respectively and had been doing so for over a year.
Error of law
5. A number of the heads of challenge have no arguable merit or have been properly rejected by the judge granting permission who also noted that the background gives the appearance of a somewhat cynical attempt to bypass the requirements of the Immigration Rules.
6. It was submitted before the Upper Tribunal that exceptional circumstances exist. The parties had lived together from 18th October 2013, a child had been born to the Appellant in May 2014 and she was pregnant with that child at the time of the First-tier Tribunal hearing. It was submitted there was a strong relationship between the Appellant acting as a stepmother and the children of her partner that has existed for over a year, and that the Judge had not properly weighed the evidence or considered the factors relevant to undertaking a proper Razgar assessment. It was submitted the Judge's ultimate decision to split the family was unjustifiably harsh in all the circumstances of the case.
7. A reading of the determination shows the Judge was clearly aware of all relevant issues. The Judge refers to the relationship between the Appellant and her partner's children and for sustainable reasons found that it was an attempt to get round the Rules. He arrived at the proportionate decision as a result of having considered the competing interests.
8. The Appellant was unable to succeed under Appendix FM which is section 55 compliant. She was unable to succeed under either the partner or parent route and in relation to the older children, they are the children of her partner and the Appellant's removal was not shown on the available evidence to result in any adverse impact upon them. It was not shown that their needs will not continue to be met by their father in the absence of the Appellant.
9. The jurisprudence in relation to Article 8 within the Rule continues to develop. Three of the more recent cases are R (on the application of Ganesabalan [2014] EWHC 2712 (Admin) in which it was held that (i) Unlike other Rules which have a built-in discretion based on exceptional circumstances, Appendix FM and Rule 276ADE are not a "complete code" so far as Article 8 compatibility is concerned. Appendix FM and Rule 276ADE have no equivalent "exceptional circumstances" provision. "Plainly", as was held in Amin at paragraph 26, they are not "exhaustive"; but there is "always a residual discretion" (see paragraph 42). As the Court of Appeal explained in MM (Lebanon) (paragraph 134): " ... if the relevant group of [Immigration Rules] is not ... a 'complete code' then the proportionality test will be more at large, albeit guided by the Huang tests and UK and Strasbourg case law". The Immigration Rules are the important first stage and the focus of Article 8 assessments. Indeed it will be an error of law not to address Article 8 by reference to the Rules. The position is explained by the Court of Appeal in Haleemundeen at paragraphs 40 to 42, 47 and 51. (ii) The Immigration Rules operate alongside important guidance which is itself part of the relevant overall code and which guidance recognises the discretion outside the Rules and the duty on the SSHD to consider exercising that discretion in the individual case. So far as this is concerned, the relevant guidance for the purposes of this case was in the IDIs December "Family Members Under the Immigration Rules" (December 2012) at paragraph 3.2.7d headed "Exceptional circumstances". This states 'Exceptional' does not mean 'unusual' or 'unique'. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1. of Appendix FM have been missed by a small margin. Instead, exceptional' means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. That is likely to be the case only very rarely. In determining whether there are exceptional circumstances, the decision maker must consider all relevant factors. The guidance describes in mandatory terms a duty to consider all relevant factors in order to make a determination as to whether there are exceptional circumstances. That follows from the phrase "in determining whether there are exceptional circumstances, the decision maker must consider all relevant factors". So far as exceptional circumstances are concerned, the guidance makes clear that it is describing "circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate". The court held that it follows from the factual premise in this case and the analysis of the law that there was an error of law because the decision letter and notice contained no indication or reasoning which demonstrates that the SSHD had considered the exercise of discretion or the question of exceptional circumstances or the question of proportionality. In order to be a lawful decision the SSHD was required to address her mind to the question of the discretion and was required in her reasons to demonstrate that she had done so and what conclusion she had reached.
10. In MM(Lebanon) and others [2014] EWCA Civ 985 it was said that where the relevant group of Immigration Rules, upon their proper construction, provide a "complete code" for dealing with a person's Convention rights in the context of a particular Rule or statutory provision, such as in the case of "foreign criminals", then the balancing exercise and the way the various factors are to be taken into account in an individual case must be done in accordance with that code, although references to "exceptional circumstances" in the code will nonetheless entail a proportionality exercise. But if the relevant group of Immigration Rules is not such a "complete code" then the proportionality test will be more at large, albeit guided by the Huang tests and UK and Strasbourg case law. Aitkens LJ also said at para 128 "...Nagre does not add anything to the debate, save for the statement that if a particular person is outside the rule then he has to demonstrate, as a preliminary to a consideration outside the rule, that he has an arguable case that there may be good grounds for granting leave to remain outside the rules. I cannot see much utility in imposing this further, intermediary, test. If the applicant cannot satisfy the rule, then there either is or there is not a further Article 8 claim. That will have to be determined by the relevant decision-maker..."
11. In Meera Muhiadeen Haleemundeen [2014] EWCA Civ 558 Lord Justice Beatson confirmed that the FTT Judge who allowed the appeal erred in his approach to Article 8 because he did not consider the case for remaining in the United Kingdom on the basis of his private and family life against the Secretary of State's policy as contained in Appendix FM and Rule 276ADE of the Immigration Rules. In order for leave to remain to be granted outside of the provisions of the Immigration Rules, there needed to be compelling or exceptional circumstances not sufficiently recognised under the new rules that outweighed the public interest in deportation. In the instant case the FTT gave no explanation of why the case was compelling or exceptional. It identified no particular features which justified the consideration of proportionality outside the rules. The declaration that the Immigration Rules worked harshly against the Claimant did not suffice. These new provisions in the Immigration Rules are a central part of the legislative and policy context in which the interests of immigration control are balanced against the interests and rights of people who have come to this country and wish to settle in it. Overall the Secretary of State's policy as to when an interference with an Article 8 right will be regarded as disproportionate is more particularised in the new Rules than it had previously been. The new Rules require stronger bonds with the United Kingdom before leave will be given under them. The features of the policy contained in the Rules include the requirements of twenty year residence, that the applicant's partner be a British citizen in the United Kingdom, settled here, or here with leave as a refugee or humanitarian protection, and that where the basis of the application rests on the applicant's children that they have been residents for seven years.
12. In this appeal the Judge addressed his mind to the correct legal test but found on the facts it had not been proved that there are any exceptional circumstances. In this context 'exceptional' means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. That is likely to be the case only very rarely and the Judge was required, when assessing this element, to consider all relevant factors, which he did. Other than the parties wish to remain for their convenience it was not found there was any evidence to support a finding other than that which the Judge made in the circumstances of this case.
13. As the Judge considered all the material he was asked to consider with the required degree of anxious scrutiny, and gave adequate reasons for findings made within a properly conducted proportionality assessment, the decision is only susceptible to challenge on Public Law grounds which, in this case, must be those of irrationality. That admits a high threshold which has not been shown to be met on the facts of this case.
14. There was no evidence of any sufficiently adverse impact as a result of removing the Appellant from the family unit in the United Kingdom and Mr Martin was in some difficulty in arguing what may happen if she was removed as the content of the statements and the other supportive evidence is inadequate and has to be considered in light of the adverse credibility findings.
15. The six factors relied upon by Mr Martin as evidence of exceptional circumstances being (i) a partner settled in the United Kingdom, (ii) the partners daughters living with him in the United Kingdom who are British citizens, (iii) the children being 7 and 8 years of age without a full-time maternal influence at this time, (iv) the fact the Appellant and her partner have been living together with the children of approximately 12 months, (v) that at the date of the hearing before the Judge the Appellant was pregnant and expecting a child within weeks of the hearing, (vi) the partner was prohibited from removing the children from the United Kingdom for a period in excess of one month, do not prove exceptional circumstances. The latter element relates to the standard endorsement on a Residence Order which permits the parent with residence to remove the children for 28 days for the purposes of a holiday but not thereafter, although there is no evidence of an application being made to the Family Court for leave to remove from the jurisdiction for a longer period or permanently. As a result this is a bare statement of fact and nothing more.
16. In addition to the points in favour of the applicant upon which weight could be placed, the Judge also took into account the strong argument in support of the Secretary of State that the Appellant is unable to meet the requirements of the Rules and has been found to have attempted to subvert immigration control by entry as a visitor when it appears her intention was otherwise, and possibly conceiving with a child knowing her status was precarious, which is not a trump card in any event.
17. The conclusion of the Judge to dismiss the appeal for the reasons set out in the determination is within the range of findings the Judge was entitled to make on the evidence and no legal error material to that decision has been established.
Decision
18. There is no material error of law in the First-tier Tribunal Judge's decision. The determination shall stand.

Anonymity.
19. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 30th September 2014