The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07692/2013


Heard at Field House
Determination Promulgated
On 16 October 2013
On 6 December 2013




Aquib Afzal


For the Appellant:      
For the Respondent:      

1. This is an appeal by the Secretary of State against a decision of Immigration Judge Maciel who on 23 August 2013 allowed the respondent’s appeal against a decision of the Secretary of State that he should not be entitled to remain in this country as the spouse of a person present and settled here. The refusal was based substantially upon the fact that the English language certificate which had been provided by the respondent did not emanate from an organisation which was on the approved list, and hence he failed to meet the requirements of the Rules in that regard. It seems that the respondent may well have been mislead by the person whom he sought advice from in relation to his application as to the organisation concerned, but that perhaps is now not material. The respondent had come here as a student in 2011. He married the sponsor, his spouse, who as we say was settled in this country, and he sought to remain on that basis. There is now a small child of the union.
2. The Immigration Judge did not specifically deal with the financial requirements. Indeed, it looks as if no substantial evidence was given in that regard save that it was known that the wife earned some £1,000 a month as a carer and a further £400 in a cleaning job. Thus she earns some £1,400 a month. That would not amount to the necessary £18,600 which is the earnings requirement under the Rules in relation to spouses who wished to remain in this country.
3. However, even though there is a failure to meet the formal requirements of the Rules on financial and indeed other matters, one then goes back to what is now set out in paragraph EX 1 of the Rules. That is particularly material in relation to children who are British citizens or settled here, but in this case of course the child is a British citizen. In those circumstances it is only if it would be reasonable to require that the child leaves the country and lives outside the country that where there is a marriage, and there is no suggestion other than that this is an entirely genuine marriage, there should not be a right for a spouse to remain here. The immigration judge cites the IDI in relation to EX 1, which we are told by Mr Allen is still in force, and that states:
“In cases where the decision being taken in respect of the person with parental responsibility would require that person to return to a country outside of the EU, then the case must always be assessed on the basis that it would be unreasonable for the child to leave the UK with their parent. In such cases it will usually be the case that the person with parental responsibility will be allowed to stay in the UK with the child.”
That of course does not in all cases mean that both husband and wife have to remain here, but it is a strong pointer for obvious reasons in that direction and it would take, in our view, an unusual case where there was a genuine marriage and it was desirable, rather not unreasonable, to consider that one party should have to leave the jurisdiction. Of course, the approach in the IDI is also consistent with the jurisprudence of the European Court at Luxembourg in relation to this aspect.
4. The appeal by the Secretary of State raised two grounds. One, it relied on the failure to apply the income threshold. That of course can be overridden by EX 1 and that is what the immigration judge did in this case. Secondly, it is said the Tribunal found that the appellant’s case was exceptional and thereby allowed the appeal on Article 8 grounds. The first point to make is that the Tribunal did not find that the appellant’s case was exceptional nor was there any reason why it should. For some reason the Secretary of State seems obsessed with the idea that in these cases there is a need to find exceptionality. Where that comes from, we have been unable to ascertain, and Mr Allen has not been able to help us to find the need to rely on exceptionality. As we say, in relation to a case involving children the test is whether it would be reasonable to require the child not to live within the jurisdiction with their parents, and where there are no children the test in the Rules is somewhat higher, and that there are insurmountable obstacles to the marriage continuing abroad. There is no question of exceptionality.
5. While it is plain, when one looks at the decision of the Immigration Judge as a whole, that he was in fact applying EX 1, he did it in the form of appearing to rely on Article 8. It was quite unnecessary for him to consider Article 8 independently of the Rules in the circumstances of this case because his decision was, as we say, that the Rules enabled, on the facts of this case, the respondent to succeed.
6. We should say, as Mr Allen has noted, that it might have been possible for the Secretary of State to reach a decision which could possibly have been upheld because there was some material to suggest that the respondent’s immigration history was not perfect. However, it is not right or necessary to go into that because it was not a matter that was raised by the Secretary of State. As it is, in all the circumstances we must dismiss this appeal.

Signed Date

Mr Justice Collins