Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08377/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th July 2016
On 2nd November 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr TIMOTHY [O]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr P Duffy, Senior Home Office Presenting Officer
For the Respondent: Not Represented

DECISION AND REASONS
1. This is an appeal to the Upper Tribunal by the Secretary of State, with permission, against a decision of the First tier Tribunal, Judge Povey, promulgated on 4th January 2016 following a hearing at Newport on 17th December 2015. In that decision the Judge allowed Mr [O]'s appeal against the Secretary of State's decision to refuse him leave to remain on Human Rights grounds.
2. He did so on the basis that as at the date of the hearing the Appellant would have met the requirements of Appendix FM as a partner save for the fact that he was in the UK and thus allowed the appeal on the Chikwamba [2008] UKHL40 principle.
3. The Secretary of State sought and was granted permission to appeal. The Secretary of State asserted that the Judge had erred in finding that the Appellant would have met the requirements of Appendix FM without having considered all of the substantive requirements of Appendix FM. In particular there was no assessment of the financial requirements or whether there were insurmountable obstacles to family life continuing in South Africa, the country of the Appellant's nationality.
4. For the purposes of continuity and clarity I shall continue to refer to Mr [O] as the Appellant and the Secretary of State as the Respondent in this decision.
5. I agree that the Judge erred as asserted by the Secretary of State. The decision and reasons is a short document and the judge found at paragraph 23 that the interference in the private and family life of the appellant was disproportionate for the following reasons:-
"23.1 At the date of his application, the Appellant could not satisfy the Immigration Rules regarding his relationship with Mr [T]. At that time, they had only been cohabiting just over a year. The Rules require cohabitation for at least two years prior to application before someone can be considered as an applicant's partner under Appendix FM. However, the Appellant and Mr [T] have now co-habited for over two years. Were the Appellant to submit an application today for leave to remain as Mr [T]'s partner, there appears to be no obvious reason why the same would not now meet the requirements of Appendix FM to the Rules."
6. The Judge gives no reasons for his finding that the Appellant would now meet the requirements of Appendix FM save for the length of his relationship with his partner. The Rules contain a number of requirements in addition to meeting the definition of "partner" and on that basis the decision cannot stand and I set it aside.
7. The Appellant appeared in person accompanied by his partner and no one could give any reason why I should not proceed to re-decide the appeal.
8. The original application made by the Appellant was on the basis of UK ancestry under paragraph 189 of the Immigration Rules. He had previously been granted leave to enter and remain under the UK ancestry rules as a dependent of his mother. However, as the Secretary of State pointed out in the refusal, as an adult he needed to satisfy the rule on his own account and he could not do so, being unable to provide evidence that a grandparent was born in the United Kingdom.
9. The Secretary of State considered his private life and found that he did not satisfy the requirements of paragraph 276ADE of the rules and refused the application. That decision was taken on 12th February 2015. By the time the matter came to appeal the Appellant was arguing both family and private life.
10. The Appellant is and has been in a relationship with Mr [T] since 2011. The facts as found by the First-tier Tribunal Judge have not been challenged. They are that the Appellant was granted leave to enter the UK on 26th January 2007 as a dependent of his mother until January 2010. He was 17 when he arrived in the UK on 5th February 2007 and has been in the UK ever since. His leave was extended until 2015.
11. In 2011 the Appellant's mother was granted indefinite leave to remain. She has remarried and is settled in the UK. The Appellant and his mother are close. The Appellant's father lives in South Africa but they are not close and he is unaware that his son is gay.
12. As indicated above the Appellant's application for leave to remain on the basis of UK ancestry was refused.
13. The Appellant and Mr [T] began to cohabit in December 2013. Mr [T] is British and has lived throughout his life in the UK and his family are all in the UK.
14. The genuineness of the relationship between the Appellant and Mr [T] was accepted both before the First-tier Tribunal and before me by Mr Duffy.
15. The appeal has changed its nature completely since the date of the refusal and is now put solely on the basis of the Appellant's family and private life. In order to succeed on that basis he must comply with the requirements of Appendix FM.
16. Additionally, the appellant's personal circumstances have changed considerably throughout the course of this appeal.
17. He was diagnosed as HIV positive in 2013. He remained well until December 2015 when he became very unwell and blood tests indicated an extremely high viral load. His mobility was severely affected and an MRI scan of his brain revealed that the HIV virus had entered his brain and damaged the part which controls muscle memory and muscle tone. While there was only a small amount of damage it left the Appellant very weak and unable to walk. He is on antiretroviral drugs and also on antibiotics. Due to his mobility issues he was unable to continue to reside in the studio flat he shared with Mr [T] and was obliged to move back into his mother's home. He is unable to manage stairs. Initially he was unable to do anything for himself but he is now very much better than he was initially. Although he is not currently living in the studio flat with his partner they do see each other every day. Additionally, the Appellant has been unable to work since then and he is being supported financially by his partner and his mother.
18. His partner Mr [T] is a senior branch manager of two estate agencies in Bournemouth. He is an employee. The home they shared is a rented studio flat and they lived together from December 2013 until December 2015. Their relationship is unchanged but the Appellant's physical issues have made it necessary for him to reside on a temporary basis with his mother.
19. The Appellant expressed his gratitude to the NHS for the treatment he has received since the end of 2015 telling me quite candidly that had it not been for the NHS he would not have been appearing in front of me. He indicated that while treatment for HIV is available in South Africa, it is at considerable cost which he would not have the means to access.
20. Turning to the requirements of Appendix FM and the requirements for limited leave to remain as a partner, the first question is whether the Appellant meets the definition of "partner" for the purposes of Appendix FM. This is set out in GEN.1.2 (iv) which defines partner, so far as relevant to this appeal, as "a person who has been living together with the applicant in a relationship akin to marriage or civil partnership for at least two years prior to the date of application". This continuing relationship involves a couple who have lived together for 3 years. I find therefore the Appellant in this case does meet the definition of "partner", save for the fact that they had not been living together for two years prior to the date of application.
21. The relationship requirements for leave to remain as a partner are contained in section E-LTRP.1.2 to E-LTRP1.12.
22. The Appellant's partner is a British citizen. They are both over the age of 18 and are not within a prohibited degree of relationship. They have met and their relationship is genuine and subsisting. They intend to live together permanently in the UK and there is good reason currently why they are not living under the same roof but it has no impact on their continuing intention to live together permanently. All the requirements therefore of E-LTRP.1.2 to E-LTRP1.12 are met.
23. As regards the immigration status requirements in E-LTRP.2.1 and 2.2, the Appellant is not in the UK as a visitor, with a period of leave of six months or less, nor has he temporary admission or temporary release and is not in breach of the immigration laws.
24. The next requirements are the financial requirements contained in E-LTR P.3.1 to E-LTR P.3.4 which I will come back to.
25. Finally there is an English language requirement and South Africa is not one of the countries named as exempting him from the requirement and I have no evidence that he has been educated to degree level in English. He is not exempt from the English language requirement therefore unless paragraph Ex.1 applies. In considering the requirements of Ex.1, I find that Ex.1 (b) applies. Ex.1(b) requires the Appellant to be in a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK or in the UK with refugee legal humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.
26. In this case, given the state of the Appellant's health and the fact that he does not have the finances to support his ongoing medical care in South Africa then the prognosis for his survival would be poor and on that basis there are indeed insurmountable obstacles to his family life with his partner continuing in South Africa.
27. The remaining question, referred to above is that of finances. Neither the Appellant nor his partner had come to court with any of the documentation to show that they meet the financial requirements. I therefore gave permission, with the consent of Mr Duffy, for the Appellant to supply, within 14 days, appropriate documentation to show he meets the requirements of Appendix FM.
28. Those 14 days have long passed and no evidence has been provided.
29. The Appellant does not therefore meet the requirements of Appendix FM and given all the matters I have taken into account in connection with Appendix FM there are no other matters not already considered that would leave to considering the appeal outside the Immigration Rules.
30. Accordingly, in redeciding the appeal it is dismissed

Notice of Decision
The Secretary of State's appeal to the Upper Tribunal is allowed such that the Appellant's appeal against the Secretary of State's decision is dismissed.
There has been no application for an anonymity direction and I see no reason to make one and I do not do so.

Signed Date 31st August 2016

Upper Tribunal Judge Martin