Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07902/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons
On 18 May 2016
On 01 Aug 2016

Before

UPPER TRIBUNAL JUDGE DEANS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR KITTI SONGSAENG
Respondent

Representation:

For the Appellant: Mr T Wilding, Senior Home Office Presenting Officer
For the Respondent: Mr J Dhanji of Counsel, instructed by UK Migration Lawyers Ltd

DECISION AND REASONS

1) This is an appeal by the Secretary of State against a decision by Judge of the First-tier Tribunal S Taylor allowing an appeal under Appendix FM of the Immigration Rules.

2) Mr Kitti Songsaeng (hereinafter referred to as "the applicant") was the appellant before the First-tier Tribunal.

3) The applicant was born on 18 July 1986 and is a national of Thailand. As the Judge of the First-tier Tribunal observed at paragraph 18 of the decision, the facts of this appeal are not greatly in dispute. The judge further observed, at paragraph 16, that the applicant had submitted a great deal of documentary and photographic evidence concerning the relationship with his partner but this relationship was not in dispute. The only issue before the First-tier Tribunal was whether there were insurmountable obstacles to the applicant carrying on family life with his partner outside the UK, in terms of paragraph EX.1(b) of the Immigration Rules.

4) The facts as summarised by the Judge of the First-tier Tribunal are that the applicant arrived in the UK at the age of 12 in 1999. He has not since returned to Thailand. He completed his secondary education in the UK. His mother lives in the UK and is now a British citizen, having arrived a few years before the applicant. The applicant has not seen his father since the age of 4 and does not know his whereabouts. He has no close relatives in Thailand apart from an aunt. The applicant has an unmarried partner, Ms Kanokwan Thongtawee, in the UK. The couple have been in a relationship since 2005 and have been cohabiting since 2007. The applicant's partner is a Thai national with indefinite leave to remain in the UK. She said at the hearing before the First-tier Tribunal she would not return to Thailand as she had spent over a decade building her life in the UK by studying and working. This future would be thrown away if she returned to Thailand. The First-tier Tribunal heard evidence from the applicant's mother stating that she had lived in the UK since the early 1990s and was a British citizen. She had built her life in the UK with her partner and she would be devastated if the applicant had to return to Thailand after she had brought him to the UK as a child. The judge accepted that the applicant was "totally acclimatised to life in the UK" and considered the UK as his home. He had no cultural attachment to Thailand and considered it to be a foreign land. His only connection with Thailand was an elderly aunt and he left so young he had no remaining circle of friends either from his school or student days. He had no experience of working or studying in Thailand. The judge found that the difficulties which the applicant would face on returning to Thailand would be considerably aggravated by having to be separated from the two main relationships in his life, with his partner and his mother. The judge considered that the total severance of the applicant's core relationships in the UK, together with having to start afresh in a country where he had no experience as an adult and no experience of working or studying, was considerably more than a mere inconvenience. This combination of facts would amount to insurmountable obstacles to his continuing with his family life in Thailand. The time and effort which the applicant's partner had invested in building her life in the UK was an additional factor showing that family life would not continue in Thailand.

5) In the application for permission to appeal it was submitted on behalf of the Secretary of State that the judge's approach to the test under paragraph EX.1 was flawed. The judge had erroneously taken the partner's choice not to accompany the applicant as determinative. The partner's evidence was that she had family in Thailand, including her mother, her mother's partner and a sister. She would find it difficult to find a job and rents were high. She would have to share a room on her return. The choice of where a couple wished to reside did not overrule the UK's right to control its borders. The judge failed to engage with how the partner's circumstances in Thailand would amount to insurmountable obstacles under the Rules. In addition the judge had failed to take into account the fact that the applicant and his partner met in 2005, which was 2 years after the applicant's last leave expired in 2003.

6) It was further contended that the applicant's family life with his mother was immaterial in the absence of reasons as to how this was relevant to his family life with his partner. The judge failed to give reasons why any potential difficulty the applicant might have establishing aspects of his private life was an insurmountable obstacle to family life continuing in the context of his partner's ties and support network in Thailand.

7) Permission to appeal was granted on the basis that it was arguable that the judge's conclusions regarding whether family or private life could continue if the applicant's partner moved with him to Thailand were inadequate and that the judge had given excessive weight to the applicant's partner's desire to remain in the UK. In addition, it was said that the failure of the judge to have regard to section 117B of the Nationality, Immigration and Asylum Act 2002, as amended, was also an arguable error of law.

Submissions

8) In his submission at the hearing, Mr Wilding relied on the grounds of the application for permission to appeal. He contended that the decision was based on the applicant's partner not wanting to go to Thailand. There was, however, a connection with Thailand and this was set out in the summary of the evidence at paragraphs 10 and 11 of the decision. The judge's conclusion was predicated on a desire by the applicant and his partner to stay in the UK. The question was one of whether there were insurmountable obstacles to family life being carried on between the applicant and his partner in Thailand. It was pointed out that paragraph EX.2, giving a definition of "insurmountable obstacles", was inserted in the Immigration Rules with effect from 28 July 2014, which was prior to the making of the Secretary of State's decision in February 2015.

9) For the applicant, Mr Dhanji referred to paragraph 18 of the decision, where the judge made findings in relation to paragraph EX.1. The judge had considered all the relevant factors. At paragraph 17 the judge had accepted the evidence of the witnesses. Although the judge had referred to the severance of the applicant's core relationships with his partner and mother, Mr Dhanji acknowledged that this was immaterial to the test of insurmountable obstacles. Under this test all the relevant factors should be considered except for severance, as the test required consideration of whether there were insurmountable obstacles to family life with the partner continuing outside the UK. This was, however, not fatal to the judge's decision. The judge may have been generous but there was no challenge on the basis of perversity, only on the basis of misdirection.

10) It was pointed out that the judge made no direct reference to paragraph EX.2, where the definition of "insurmountable obstacles" is given. Mr Dhanji responded that there was nothing to show that the judge did not have in mind the very significant difficulties which were referred to in paragraph EX.2. In Thailand the applicant would struggle to obtain a job, as found by the judge, he would have no home and no social or cultural ties.

11) Mr Dhanji submitted that the applicant had applied for leave in 2004 and this had not been decided until 2007. The applicant would have had leave under section 3C of the Immigration Act 1971 until 2007. Accordingly section 117B(6), which applies to a relationship with a qualifying partner commenced when a person is in the UK unlawfully, did not apply. The applicant had had leave until he was 17 years old. The overstaying by the applicant began when he was still a child. The applicant spoke English and there was no problem with funding for the couple.

12) Mr Dhanji acknowledged that the applicant would not succeed with an application for entry clearance because his partner did not meet the financial requirements under Appendix FM. If paragraph EX.1 was not satisfied then the appeal could be considered outside the Immigration Rules. If this were to be done, it should be taken into account that the applicant came to the UK as a child. His relationship with his partner was of long standing. It would be difficult for them if they could not continue their family life in the UK. Mr Dhanji further informed me that the applicant's partner is now a British citizen.

13) In response Mr Wilding submitted that there was an error of law in the decision of the First-tier Tribunal. The judge had not engaged with the relevant and material issues. The judge did address with the definition of "insurmountable obstacles" in paragraph EX.2 as meaning very significant difficulties. The judge's decision was predicated on the parties not wanting to go back to Thailand. The judge should have asked whether there were very significant difficulties in continuing family life outside the UK and then considered whether these difficulties could be overcome or would entail very serious hardship. The judge did not take into account that the applicant's partner still has family in Thailand.

14) Mr Wilding further submitted that it was incorrect to say that the applicant had had section 3C leave until 2007. He referred me to the reasons for refusal letter in this regard. The point he sought to make was that the applicant's leave had expired at the end of August 2003, before the application of November 2004 was made, so section 3C leave did not run.

15) Mr Wilding further referred to paragraph 276ADE of the Immigration Rules and the test of very significant obstacles. The evidence did not establish that this threshold was met either. Although when considering the appeal outside the Rules there was no intermediate test, nevertheless the failure to satisfy the Rules was relevant. Under section 117B little weight should be given to the relationship with a qualifying partner formed when the applicant was in the UK unlawfully. It was difficult to see how the Secretary of State's decision could be disproportionate.

Discussion

16) The Judge of the First-tier Tribunal has made clear findings upon the evidence, which as the judge pointed out, was largely undisputed. Regrettably, when it came to applying paragraph EX.1, the judge omitted to take account of the definition of "insurmountable obstacles" in paragraph EX.2. This states that for the purpose of paragraph EX.1.(b) "insurmountable obstacles" means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.

17) The judge found that there would be significant difficulties for the applicant or his partner in continuing their family life together outside the UK. It is not clear whether the judge considered that these difficulties would be very significant. The judge did not consider whether these difficulties could not be overcome or would entail very serious hardship for the applicant or their partner.

18) Mr Dhanji submitted that the judge had considered all the relevant factors and there was nothing to show that the judge had not considered that there were very significant difficulties to the continuation of family life. What is not established from the judge's decision, however, is that the judge had proper regard to the full definition of "insurmountable obstacles" in paragraph EX.2 and, in particular, the further requirements to the effect that where there are very significant difficulties they either cannot be overcome or would entail very serious hardship.

19) By admitting to follow the definition and apply the full test, the judge made an error of law. Had this error not been made, it cannot be said that the judge would necessarily have reached the same decision under the Immigration Rules and accordingly the decision should be set aside and re-made.

20) As I indicated to the parties at the hearing, if the decision were to be set aside I would re-make it on the basis of the judge's findings and the evidence before the First-tier Tribunal. So far as paragraph EX.1(b) is concerned, it is accepted that the applicant has a genuine and subsisting relationship with his partner who is in the UK and, having been already settled in the UK, is now a British citizen. It must be shown that there are insurmountable obstacles to family life with the partner continuing outside the UK. For this purpose "insurmountable obstacles" has the meaning set out in paragraph EX.2, referred to above.

21) The Judge of the First-tier Tribunal drew attention to the difficulties the applicant would face in continuing family life outside the UK. The applicant has been in the UK for 16 years since the age of 12. Not only is his partner here, in a relationship that has subsisted for more than 10 years, but his mother has been here since the early 1990s. The presence of his mother is not a strong point in itself, as the evidence does not indicate that there is anything more than a normal family relationship between the applicant and his mother. There is more significance to be attached to the fact that the applicant has few relatives left in Thailand, apart from an aunt, whom he has not seen for many years. He is nevertheless now around 30 years old and he has educational qualifications from his secondary schooling in the UK. Although it would be difficult for him to re-establish himself in Thailand, it has not been shown that the difficulties he would encounter could not be overcome or would entail very serious hardship.

22) The applicant's partner came from Thailand in 2004. She has been studying in the UK and at the time of the hearing before the First-tier Tribunal she was awaiting an assessment of her dissertation for the award of the degree of MBA. She has returned to Thailand three times in 10 years and still has close family there. Her evidence was that it would be very difficult to return as she would have to start again with no home and not being used to the culture. It would be difficult to find a job in Thailand and rents were very high. Again these are significant difficulties but the evidence does not show that they could not be overcome or would entail very serious hardship. The applicant's partner would be returning to Thailand as a highly educated young woman with UK education qualifications and work experience.

23) The applicant's partner has said in her evidence that she would probably not return to Thailand with the applicant. This, however, would be her choice. On the evidence I am not satisfied that the applicant's satisfies the test in paragraph EX.1(b).

24) Mr Dhanji referred me to the test for private life in paragraph 276ADE(1)(vi) of the Immigration Rules on the basis that the applicant is someone who has lived continuously in the UK for less than 20 years but there would be very significant obstacles to his integration into the country to which he would have to go if required to leave the UK. At first sight, "very significant obstacles" in paragraph 276ADE(1)(vi) would seem to be a lesser test than "insurmountable obstacles" as defined in paragraph EX.2. Given that the applicant left Thailand at the age of 12, I would not have much difficulty in accepting that there would be significant obstacles to his integration on return but it is questionable whether these would be very significant obstacles, as required by the wording of paragraph 276ADE(1)(vi). The applicant spent the first 12 years of his life in Thailand and he has received a secondary education in the UK. He is young and appears to be fit. These factors do not suggest the existence of very significant obstacles to his integration into Thailand.

25) The question then arises of consideration outside the Rules under Article 8. I may state here for the sake of completeness that the Judge of the First-tier Tribunal did not err by not considering the application of section 117B. The provisions in section 117B apply where the Tribunal is determining whether a decision made under the Immigration Acts breaches a person's right to respect for private or family life under Article 8. The judge allowed the appeal under the Immigration Rules and not under Article 8, where section 117B would be relevant.

26) Looking at section 117B, the first principle is that the maintenance of effective immigration controls is in the public interest. It is also in the public interest that persons who seek to remain in the UK are able to speak English and are financially independent. It is not disputed here that the applicant can speak English and is financially independent.

27) The difficulties for the applicant arise in relation to subsections (4) and (5). Under subsection (4) little weight should be given to a relationship formed with a qualifying partner that is established by a person at a time when the person is in the United Kingdom unlawfully. It seems it was accepted by Mr Dhanji in the course of the hearing that the applicant's leave expired in 2003 and that the application made in 2004 therefore did not extend leave. Accordingly, when the applicant's relationship with his partner began in 2005 he was an overstayer and was in the UK unlawfully. The statutory provision means that little weight should then be given to his relationship with his partner.

28) The applicant established private life in the UK from his arrival in 1999 until the expiry of his leave in 2003. Subsection (5) states, however, that little weight should be given to a private life established by a person at a time when the person's immigration status is precarious. This was held in the case of AM (s117B) Malawi [2015] UKUT 00260, among others, to mean that where a person has limited leave their status is precarious. As the applicant had only limited leave between 1999 and 2003, little weight is to be given to private life established during this period.

29) I accept that little weight does not mean no weight but it is for the applicant to show that there are compelling circumstances, in the meanings set out in SS (Congo) [2015] EWCA Civ 387 to outweigh the public interest in maintaining effective immigration controls. The circumstances of the applicant and his partner simply do not meet this threshold. Their wish to continue their relationship within the United Kingdom, given all the effort the applicant's partner, in particular, has put into establishing herself here, is understandable but does not of itself lead to the conclusion that the Secretary of State's decision is disproportionate. Furthermore, as the applicant's partner is now a British citizen, there is the possibility that the couple might be able to return to the UK in the future with leave for the applicant. The circumstances at present, when considered outside the Immigration Rules, are not sufficiently compelling to outweigh the public interest and show that the Secretary of State's decision is disproportionate under Article 8 of the Human Rights Convention. Accordingly, the decision must be re-made by dismissing the appeal.

Conclusions

30) The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

31) I set aside the decision.

32) I re-make the decision by dismissing the appeal.

Anonymity

33) The First-tier Tribunal did not make an order for anonymity. I have not been asked to make such an order and I see no reason of substance for so doing.

Fee Award Note: this is not part of the decision

As the appeal has been dismissed, no fee award can be made.

Signed Date

Judge of the Upper Tribunal