The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09719/2015


Heard at Field House
Decision & Reasons Promulgated
On 26 October 2017
On 20 November 2017




Secretary of State for the Home Department




For the Appellant: Mr M Diwncyz, Senior Home Office Presenting Officer
For the Respondent: Mr A Chohan of Counsel


1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal. I will refer to the Secretary of State as such throughout and to Mr Khan as the claimant to avoid confusion.
2. The claimant is a citizen of Pakistan who was born on 4 January 1985. He entered the United Kingdom on 28 September 2008 with a student visa valid until 30 June 2010. It is not entirely clear from the papers before me what applications were subsequently made by the claimant for leave to remain in the United Kingdom.
4. The claimant applied on 18 December 2014 for leave to remain in the UK outside the Immigration Rules. The Secretary of State refused his application in a decision made on 20 February 2015. It is that decision that was appealed against to the First-tier Tribunal.
The appeal to the First-tier Tribunal
5. The claimant first appealed against the Secretary of State's decision to the First-tier Tribunal in 2015. On 2 July 2015 First-tier Tribunal Judge J S Law dismissed his appeal. The First-tier Tribunal considered the appeal on the papers. The appeal was dismissed on the basis that the claimant had failed to submit the grounds for the appeal and no explanation had been provided for that failure. Having considered the papers the judge concluded that there were no circumstances that would render it inappropriate for the appeal to be determined without a hearing and therefore considered the matter. In the absence of any grounds of appeal the judge found no basis to conclude that the Secretary of State's decision was not in accordance with the Immigration Rules. The claimant applied for permission to appeal against that decision and submitted that grounds of appeal had been faxed to the Tribunal. First-tier Tribunal Judge Hodgkinson granted permission to appeal to the Upper Tribunal. In a decision promulgated on 27 October 2015 Deputy Upper Tribunal Judge Peart dismissed the claimant's appeal. Having considered the papers in the file the Upper Tribunal found no evidence of any grounds of appeal having been received by the Tribunal. The Upper Tribunal therefore concluded that the First-tier Tribunal decision did not contain a material error of law and dismissed the claimant's appeal.
6. The claimant then applied for permission to appeal to the Court of Appeal. The grounds enclosed documents that it was asserted should have been filed in the claimant's file with the Tribunal. This included a fax confirmation report which confirmed that seventeen pages were sent on 9 March 2015. On 14 June 2016 Vice President Ockelton indicated that he proposed to set aside the decision of the Upper Tribunal and direct that the matter be reheard inviting submissions to the contrary within fourteen days, having considered the proof of faxing of seventeen pages of documents to the First-tier Tribunal. On 1 August 2016 having received no response Vice President Ockelton set aside the decision of Judge Peart and remitted the appeal to the First-tier Tribunal. Thus the appeal came for hearing before First-tier Tribunal Judge Herbert in November 2016.
7. In a decision promulgated on 6 January 2017 First-tier Tribunal Judge Herbert OBE allowed the claimant's appeal. The First-tier Tribunal found that there would be insurmountable obstacles to the claimant and his wife integrating into Pakistan. The judge found that the claimant was entitled to leave to remain under the Immigration Rules, Appendix FM and Exception EX.1. The judge also went on to consider Article 8 outside of the Immigration Rules. He found that there can be said to be insurmountable obstacles to the claimant and his spouse relocating to Pakistan. The judge allowed the appeal under the Immigration Rules and also under Article 8.
8. The Secretary of State applied for permission to appeal against First-tier Tribunal Judge Herbert's decision. On 3 August 2017 Acting Resident Judge Appleyard granted the Secretary of State permission to appeal.
The hearing before the Upper Tribunal
9. The grounds of appeal assert that the First-tier Tribunal Judge erred in law by allowing the appeal under the Immigration Rules. It is asserted that the judge failed to recognise the high hurdle of the test of insurmountable obstacles set out in EX.1. Reference is made to paragraphs 19 to 21 of the First-tier Tribunal decision and the factors identified by the judge that he considered were sufficient to justify the test. Those factors plainly cannot satisfy the test in light of the guidance given in the case of Agyarko & Others (on the application of) v SSHD [2015] EWCA Civ 440. It is asserted at paragraph 20 of the decision that the judge expressly refers to the convenience of the couple which is plainly an irrelevant and erroneous consideration. In light of the fact that the British sponsor had herself only arrived in the United Kingdom in 2016 having lived in Pakistan for the vast majority of her life and that her entire family remain there, it is hard to see that a judge properly directed as to the test to be applied could have reached a rational conclusion that EX.1 was met.
10. The grounds also assert that the appeal allowed outside the Rules on Article 8 was vitiated by a material error being tainted by the judge's misdirection as to the insurmountable obstacles test. There is a complete failure to identify any compelling circumstances justifying allowing the appeal outside of the Rules. Reference is made to the case of Treebhawon & Others (NIAA 2002 Part 5A - compelling circumstances test) [2017] UKUT 00013 (IAC). The Article 8 consideration is based on a factual mistake, at paragraph 24, where the judge finds that the claimant has always been in the UK lawfully and that Section 117B(4) was not relevant to the appeal. The claimant has been an overstayer since August 2014, the current application having been made out of time in December 2014.
11. Mr Diwycyz relied on the grounds of appeal. He submitted that it is clear from the case of Agyarko that the test for insurmountable obstacles is a high hurdle to be overcome and that the judge had failed to apply the test correctly.
12. Mr Chohan submitted that one of the reasons for refusal was because the appellant could not meet the financial requirements. He referred to the case of MM (Pakistan) and said that clearly now the financial requirements are not set in stone. He submitted that the judge did consider that there were compelling factors in this case. He submitted that there has been a change in the circumstances which would have to be taken into account and that EX.1 clearly is relevant to any remaking of the decision as the claimant and his wife now have a baby. He submitted that the couple have not hidden any factors. The claimant was earning but was unable to meet the requirements for the threshold of earnings. The judge may well have found that the circumstances were exceptional.
13. In reply Mr Diwncyz submitted that the judge relied on inconvenience to the couple.
14. With regard to insurmountable obstacles the judge set out at paragraph 22:
"22. Taking all those factors into the round I find that in this finely balanced case under the Immigration Rules it can clearly be said that there are insurmountable obstacles to the appellant and his spouse relocating to Pakistan. The primary reason for this is that although the appellant has been in the United Kingdom since 2008 and has not been back to Pakistan since he spent the majority of his life there and is clearly able in terms of language, culture and custom to reintegrate into society. His wife first came to the United Kingdom although a UK citizen on 1 January 2016 and would face losing her UK citizenship if she was forced to reintegrate back into society in Pakistan. That would present them with clearly some hardship and some practical difficulties in that they would both lose their employment and accommodation with the appellant's sister in the United Kingdom but they would face an insurmountable obstacle in that his wife would have to relinquish a UK citizenship. Coupled with the other factors that would amount to an insurmountable obstacle. In this situation the couple should not be forced to relocate. I therefore do not find that paragraph EX.1 applies to the relocation of the appellant and his UK citizen spouse.
15. The judge has erred in his approach. The insurmountable obstacles are the obstacles to family life continuing outside the UK. The judge has not considered insurmountable obstacles in terms of family life outside the UK, he has focused on what they would lose in the UK. The judge found that the appellant was able to re-integrate in Pakistan but considered that the appellant's wife would have to relinquish her UK citizenship (although he does not specify why) and that this would present them with some hardship and practical difficulties because they would both lose their jobs in the UK and accommodation here. The focus should have been on the obstacles to their family life continuing in Pakistan that the couple would face.
16. In EX.2 insurmountable obstacles is defined:
"For the purposes 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. In Agyarko & Others the court found:
45. By virtue of paragraph EX.1(b), "insurmountable obstacles" are treated as a requirement for the grant of leave under the Rules in cases to which that paragraph applies. Accordingly, interpreting the expression in the same sense as in the Strasbourg case law, leave to remain would not normally be granted in cases where an applicant for leave to remain under the partner route was in the UK in breach of immigration laws, unless the applicant or their partner would face very serious difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship.
18. The 'test' is a stringent one and represents a high hurdle. To demonstrate that there are insurmountable obstacles the appellant will have to show that there are very significant difficulties which cannot be overcome or that there would be very serious hardship. Both the appellant and his partner have lived in Pakistan for the majority of their lives and there is family in Pakistan. The factors set out by the judge cannot on any reasonable interpretation of the test meet that high hurdle. The judge has in essence set out a test of inconvenience. There was an error of law in the approach adopted by the judge and in his failure to apply the high threshold required to meet the insurmountable obstacles test.
19. The judge went on to consider the case outside the Immigration Rules.
23. ? There are grounds for demonstrating that removal would be unjustifiably harsh given the length of time the appellant has been here and the citizenship of his wife. I therefore go on to consider the appellant's application outside of the Immigration Rules under Article 8 of the ECHR. In doing so I have regard however to Section 117A to D of the 2002 Nationality, Immigration and Asylum Act 2002 implemented by Section 19 of the Immigration Act 2014. I acknowledge Section 117B that the maintenance of immigration control is in the public interest and that persons who seek to enter or remain in the United Kingdom are able to speak English because persons who can speak English (a) are less of a burden on taxpayers and (b) are better able to integrate into society.
24. ? The appellant's wife does have UK citizenship and rights and responsibilities and entitlements to which she would be forced to abandon should she be forced to follow her husband back to Pakistan. The appellant himself is now well integrated into UK society, lives with his sister-in-law and her husband in a three bedroomed house. They are both working and clearly have aspirations to make a future for themselves in the United Kingdom. There would in my view follow grave consequences for both should the appellant be forced to remove himself back to Pakistan as on the face of it he would have no means of support, accommodation or accommodation to turn to. I do accept that his father is still a resident of Pakistan but most of his family is in the United Kingdom. His wife has family both in Pakistan and in the UK but it would be a considerable interference with his and his wife's private and family life for him to be removed and for her to have to follow him back to Pakistan.
28. On the slightly unusual facts of this case I find that it would be wholly disproportionate to the maintenance of effective immigration control given that this is a genuine and subsisting marriage that the decision to be made here and it be made in favour of the appellant remaining in the United Kingdom together with his wife to continue their private and family life in the United Kingdom. I find that as a matter of fact that they would face great hardship even for a period of several months' separation and financial insecurity should the appellant be forced to return to Pakistan with his wife having to make the invidious decision of whether to accompany him or to wait in the United Kingdom for his application to be made. Neither provides a sensible course of action and the reasonable and proportionate decision is to allow the application under Article 8 of the ECHR outside of the Immigration Rules."
20. The judge's assessment of proportionality centres on what he considers to be grave consequences, namely the appellant 'would have no means of support, accommodation or accommodation to turn to. I do accept that his father is still a resident of Pakistan'. This runs entirely counter to his earlier finding that the appellant could re-integrate into Pakistan. The judge's consideration of proportionality is at best confused. In finding that 'it would be wholly disproportionate to the maintenance of effective immigration control' the reasons given are 'that this is a genuine and subsisting marriage [and] that the decision [is] to be made here'. In Agyarko and others the court held:
57. That approach is also appropriate when a court or tribunal is considering whether a refusal of leave to remain is compatible with article 8 in the context of precarious family life. Ultimately, it has to decide whether the refusal is proportionate in the particular case before it, balancing the strength of the public interest in the removal of the person in question against the impact on private and family life. In doing so, it should give appropriate weight to the Secretary of State's policy, expressed in the Rules and the Instructions, that the public interest in immigration control can be outweighed, when considering an application for leave to remain brought by a person in the UK in breach of immigration laws, only where there are "insurmountable obstacles" or "exceptional circumstances" as defined. It must also consider all factors relevant to the specific case in question, including, where relevant, the matters discussed in paras 51-52 above. The critical issue will generally be whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.

21. The judge has not applied the relevant case law correctly. On the facts of this case the factors identified by the judge cannot sensibly be described as very strong or compelling.
22. The judge found that the best place to decide such cases of family life is in the UK without requiring a person to leave to go back to the country of origin and make an application form there following Chikwamba [2008] UKHL 40. In R (on the application of Chen) v SSHD (Appendix FM - Chikwamba - temporary separation - proportionality) IJR [2015] UKUT 00189 (IAC) it was held that there may be cases where temporary separation to enable an individual to make an application for entry clearance may be disproportionate. However, in all cases, it will be for the individual to place before the Secretary of State evidence that such temporary separation will interfere disproportionately with protected rights. It will not be enough to rely solely upon the case-law concerning Chikwamba v SSHD [2008] UKHL 40. It is not clear that an application form Pakistan would be certain to succeed and no factors other than the fact that the appellant's wife is a UK citizen, the financial cost and the appellant's employment. At paragraph 20 the judge found that 'there is no logical reason why he should be forced to return to Pakistan simply to apply for entry clearance when he is eligible to remain under the Immigration Rules in the United Kingdom now' and most telling is the judge's summary that 'the balance of convenience?falls in favour of the appellant.' The judge appears to have approached the issue on the basis of convenience and has not correctly applied the relevant case law.
23. For the reasons set out above the decision of the First-tier Tribunal contained material errors of law. I set that decision aside pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 ('TCEA').
24. I considered whether or not I could re-make the decision myself. I considered the Practice Statement concerning transfer of proceedings. I am satisfied that the nature and extent of judicial fact finding that is necessary in order for the decision in the appeal to be re-made is such, having regard to the overriding objective, that it is appropriate to remit the matter to the First-tier Tribunal.
25. I remit the case to the First-tier Tribunal for the case to be re-heard de novo by the First-tier Tribunal at Taylor House before any judge other than Judge Herbert OBE pursuant to section 12(2)(b) and 12(3)(a) of the TCEA. A new hearing will be fixed at the next available date.
26. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
Notice of Decision

The appeal of the Secretary of State is allowed. The case is remitted to be heard by the First-tier Tribunal at Taylor House before any judge other than Judge Herbert OBE.

Signed P M Ramshaw Date 19 November 2017

Deputy Upper Tribunal Judge Ramshaw