Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09397/2015

THE IMMIGRATION ACTS

Heard at City Centre Tower Birmingham
Decision & Reasons Promulgated
On 3rd February 2017
On 20th February 2017

Before

DEPUTY upper tribunal JUDGE RENTON

Between

qijing zhou
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr D Sellwood, Counsel instructed by Baileys Solicitors
For the Respondent: Mrs H Aboni, Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The Appellant is a female citizen of the People's Republic of China born on 23rd December 1988. The Appellant first arrived in the UK on 5th August 2011 when she was given limited leave to enter. She subsequently married the Sponsor, Steven Leigh and applied for leave to remain on the basis of her family life. That application was refused for the reasons given in the Respondent's letter of 17th February 2015. The Appellant appealed, and her appeal was heard by First-tier Tribunal Judge Parker (the Judge) sitting at Stoke-on-Trent on 5th April 2016. He decided to dismiss the appeal for the reasons given in his Decision dated 19th April 2016. The Appellant sought leave to appeal that decision, and on 8th September 2016 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The application for leave to remain was refused on the basis that the Appellant and the Sponsor did not have sufficient income to satisfy the financial requirements of Appendix FM of HC 395. Further, the Appellant did not qualify for leave to remain under paragraph EX.1 of Appendix FM as there were no insurmountable obstacles to family life continuing outside the UK, and the Appellant had no children. In addition, the Appellant had not been resident in the UK long enough to benefit from the provisions of paragraph 276ADE of HC 395.
4. The Judge dismissed the appeal because he confirmed the decision of the Respondent as regards paragraphs 276ADE and Appendix FM of HC 395. He went on to consider the Appellant's Article 8 ECHR rights outside the Immigration Rules but found that there were no compelling circumstances allowing him to consider that issue, and also that the Respondent's decision was proportionate.
5. At the hearing, Mr Sellwood argued that the Judge had erred in law in coming to this conclusion. He referred to his Skeleton Argument and submitted that the Judge had erred in law firstly by failing to consider the provisions of paragraph EX.1 of HC 395. This was a material error as there was evidence contained in the Appellant's Bundle that there were insurmountable obstacles to family life continuing in China. At paragraph 22 of the Decision, the Judge had made only a passing reference to the Social Worker's report contained in the Appellant's Bundle, and only in the context of proportionality. Further, the Judge had misinterpreted the decision in SS (Congo) [2015] EWCA Civ 387 by treating it as an interim test determinative of the appeal. In any event, as the Judge had not considered the issue of insurmountable obstacles, he could not assess whether there were any compelling circumstances enabling him to consider the Appellant's Article 8 ECHR rights. As regards the proportionality assessment, the Judge had erred in law as he had not attached the appropriate weight to the Appellant's command of the English language as required by Section 117B of the Nationality, Immigration and Asylum Act 2002. More to the point, the Judge had found the Respondent's decision proportionate on the basis that the Appellant could return to China and apply for leave to enter, the Judge having found that there was a genuine and subsisting relationship between the Appellant and the Sponsor. However, this had ignored the fact that such an application would be bound to fail as the Appellant and the Sponsor owing to their circumstances would never be able to satisfy the financial requirements of Appendix FM.
6. In response, Mrs Aboni referred to the Rule 24 response and agreed that the Judge should have considered the provisions of paragraph EX.1 of Appendix FM. He had not therefore considered whether there were insurmountable obstacles to family life continuing in China, but that was not a material error of law because the Judge had dealt with that issue in the proportionality assessment. The Judge had come to a proper conclusion in respect of that assessment as the Appellant could return to China and apply for entry clearance from there.
7. I do not agree with Mr Sellwood's argument as regards the application of the decision in SS (Congo). However, I do find an error of law in the decision of the Judge so that it should be set aside. As was acknowledged, the Judge had failed to consider whether the Appellant qualified for leave to remain as a spouse under the provisions of paragraph EX.1(b) of Appendix FM. Therefore he did not decide if there were insurmountable obstacles to the Appellant's family life with her spouse continuing outside the UK. It is true that the Judge did subsequently decide that there were no compelling circumstances justifying his consideration of Article 8 ECHR outside the Immigration Rules, but that is not an identical test to that of insurmountable obstacles. The error amounts to a material error of law because it is not in dispute that the Appellant and her spouse had a genuine and subsisting relationship and therefore the only issue left to be considered under paragraph EX.1(b) was that of insurmountable obstacles. Bearing in mind the factors briefly considered by the Judge at paragraph 22 of the Decision, if the Judge had considered this issue he may well have found in favour of the Appellant. For this reason I find a material error of law in the decision of the Judge which I set aside.
8. I did not proceed to remake the decision in the appeal. That is because a material issue in the appeal remains to be decided and relevant findings of fact made.
Decision
9. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside that decision.
The decision in the appeal will be remade in the First-tier Tribunal in accordance with paragraph 7.2(b) of the Practice Statements.
Anonymity
The First-tier Tribunal did not make an order for anonymity. I was not asked to do so, and indeed find no reason to do so.

Signed Date

Deputy Upper Tribunal Judge Renton