Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08137/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
on 20 December 2016
On 21 December 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

ORHAN MENDIRES
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr S Winter, Advocate, instructed by Latta & Co, Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. By decision promulgated on 6 June 2016 First-tier Tribunal Judge P A Grant-Hutchison dismissed the appellant's appeal against refusal of leave to remain as the spouse of a person present and settled in the UK.
2. The appellant sought permission to appeal to the UT, on grounds which are rather wordy and repetitive. Lightly edited, they are as follows:

Failure to apply correct legal test.

[4] In assessing proportionality under article 8 the judge has not referred to the test set out in Bank Mellat v HM Treasury (no 2) UKSC [2013] 39 [to which] the appellant's representative referred in submissions [as endorsed in Mirza v SSHD [2015] CSIH 28] ? if the judge had considered and applied the test? it is likely that he may have decided the case differently? failure to do so was an error of law.
Failure to consider relevant factors / making findings which were unreasonable.
[5] In assessing proportionality the judge sought to analyse the possible effects of removal of the appellant and his wife? in so doing he left various relevant factors out of account.
[6] The first possibility mooted by the judge is that refusal will cause the appellant to leave the UK without his wife. His conclusion is simply that this would not be contrary to article 8 because "the public interest will not be harmed". However, this fails to take into account? the severe interference with the couple's family life that would result ? By considering only the public interest question without weighing it against the protected interests of the appellant and his wife? the judge has left ? arguably the most relevant factor out of account.
[7] Another possibility mooted by the judges that the appellant and his partner might leave the UK together. He finds that such an outcome would entail only "a little interference with their family and private life". In so doing he appears not to have taken into account ? that requiring the appellant's partner to leave the UK would uproot her from the community in which she grew up and has lived all her life, separate her from an extended family who still live in that community, force her to give up employment, and force her to live outside the country of which is a national ? relevant factors which the judge was obliged take into account.
[8] In any event? the conclusion that such an eventuality would amount to only a "little interference" with private and family life is ? unreasonable and irrational.
Contradictory findings.
At paragraph 17 the judge made contradictory findings which go to the core of his conclusions.
3. On 4 October 2016 FtT Judge Davies refused permission, taking the view that it was clear from the summary of submissions in the decision that the authorities had been taken into account; that the ground headed "contradictory findings" was based on no more than a grammatical error; that the grounds were simply disagreement with findings made; and that all the evidence had been considered, and findings made on that evidence.
4. The appellant renewed his application to the UT, maintaining the same grounds and arguing further that Bank Mellat v HM Treasury required the judge to ask whether removal was rationally connected to legitimate aims protected by article 8 (2), and whether a less intrusive measure could be adopted without unacceptably compromising that legitimate aim; that maintenance of immigration control is not a legitimate aim included in article 8 (2), and is relevant only as an aspect of the economic well-being of the country and the protection of the rights and freedoms of others, not as an end in itself; and that removal would not assist the economic well-being of the UK, or protect the rights and freedoms of others.
5. UT Judge Canavan granted permission on 15 November 2016. Her decision points out that it is trite law that maintenance of effective immigration control is a legitimate aim for purposes of an article 8 assessment outside the rules, a point further clarified by section 117B of the 2002 act, and that whereas Bank Mellat v HM Treasury sets out broad principles relating to article 8, the approach taken in Razgar and in SS (Congo) is specific to immigration cases. She goes on to say that it may be arguable that the judge should have considered paragraph EX1 of appendix FM before going on to article 8, outside the rules, and failed to consider whether there were insurmountable obstacles to the appellant and his wife continuing the family life outside the UK, either within the context of the rules, or as part of the assessment of proportionality outside the rules.
6. Mr Winter submitted along the following lines. The judge correctly proceeded on the basis that the appellant and his partner have a genuine and subsisting relationship. Parties at the FtT hearing appeared to have approached the issue as one only of the proportionality of the outcome in terms of article 8 outwith the rules. The appellant was in difficulty over the English language test requirement and over the financial thresholds. Although the grant of permission mentioned the test of insurmountable obstacles within the rules, it was accepted that the point had not been argued to the FtT. Error of law was to be found in the assessment outside the rules. The grounds of appeal and the grant of permission, read together, yielded an argument that the judge failed to assess factors relevant to the proportionality assessment. He did not set them all out as required, at paragraph 23 in particular, or factor them into the consideration. There was a tension within the case law as to whether the question was whether the respondent could justify separation of the parties, or whether that was just a factor to be taken into account in determining proportionality. In relation to the appellant's partner removing to Turkey the judge failed to consider her nationality, her entire life spent here, the fact that she did not speak Turkish, and other difficulties. The fact that a prolonged and even indefinite separation might result was another factor which should have been taken into account. The judge failed to spell out all these matters. Although there had been no submission about insurmountable obstacles within the rules, these factors should have informed the consideration outside the rules. The inadequacy of the determination required a fresh decision. The appellant would prefer that to take place on the basis of up-to-date evidence and by way of a remit to the FtT. Alternatively, the evidence which had been presented was sufficient for the decision to be remade in his favour. His wife is in employment now, rather than self-employed. She speaks no Turkish. The appellant was here lawfully when the relationship began. They have been living together for a lengthy period, since 2009. He has not been a burden on state funds. The immigration history is not seriously adverse, he having overstayed only for about one year prior to making the application leading to these proceedings. It was also relevant that the appellant's wife is not a Muslim, given present circumstances in Turkey.
7. Mrs O'Brien in response submitted as follows. It was not surprising that the judge had not looked at paragraph EX1, when he had not been asked to do so. The appellant had conceded that he could not meet the terms of the immigration rules, which include paragraph EX1. The case did not meet the test of insurmountable obstacles, and there was nothing which realistically could have given rise to another outcome, outside the rules. The judge was fully aware of all the factors mentioned in the grounds and submissions, which were plainly at the heart of the case before him. There was no flaw in the proportionality assessment. It was the only outcome that could reasonably been expected in a case which fell well short of the rules and was conceded not to meet the terms of paragraph EX1. There was no basis on which to set aside. In the alternative, the appellant had made no application under the rules to lead further evidence and there was no reason to adjourn or to remit. On the evidence presented, the case plainly fell to be decided against the appellant.
8. I reserved my decision.
9. Mr Winter (wisely) did not make any submissions on the 3rd ground, headed "contradictory findings". It is coyly and optimistically based on paragraph 17 of the decision, where the judge obviously meant to say that the judge is that the decision is in accordance with the law, and the word "not" is a typographical error.
10. Mr Winter (again wisely) did not seek to revive the grounds referring to Bank Mellat v HM Treasury. As pointed out by Judge Canavan, it is trite law, set out in cases decided within the immigration jurisdiction and now also in statute, that maintenance of immigration control is in the public interest and does not require justification by reference to the economic well-being of the UK, case-by-case.
11. The grounds based on failure to consider relevant factors received a certain boost from the grant of permission, but are inevitably deflated by the concession that the terms of the rules, which include paragraph EX1, could not be met. Generally, on this issue, I prefer the submissions for the respondent. The grounds and arguments under this heading are no more than reiteration of a case the facts of which were plain to the judge. Considerations were not overlooked; they simply did not add up to the outcome the appellant and his partner wished for.
12. The outcome is unwelcome to the appellant and to his wife, for readily understandable reasons. However, the immigration rules set down the circumstances under which parties may expect to carry on their married life within the UK, and when they may not. The proportionality outcome is firmly and realistically based on the facts, was well within the scope of the judge, and discloses no error of law. The determination of the First-tier Tribunal shall stand.
13. No anonymity direction has been requested or made.

20 December 2016
Upper Tribunal Judge Macleman