Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA097722015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 15 June 2016
On 16 June 2016

Before

Deputy Upper Tribunal Judge MANUELL

Between

Mrs SOMIRUN NESSA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms S Aly, Counsel
(Instructed by M-R Solicitors)
For the Respondent: Mr K Norton, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

1. The Appellant appealed with permission granted by First-tier Tribunal Judge Nicholson on 2 May 2016 against the determination of First-tier Tribunal Judge Wylie who had dismissed the Appellant's appeal seeking settlement on Article 8 ECHR grounds as the spouse of British Citizen. The decision and reasons was promulgated on 3 November 2015.

2. The Appellant is a national of Bangladesh. She had entered the United Kingdom as a visitor on 6 July 2014 and on 25 November 2014 had sought further leave to remain. She is the second wife of her sponsor. She had lived separately from him for most of their married life. She had not been eligible to apply for entry clearance as a spouse to the United Kingdom because her marriage was polygamous, however the sponsor's first wife had died in 2012. The Appellant now wished to live with the sponsor and to care for him, as he was now elderly and frail. Her children by her marriage to the sponsor live in the United Kingdom. The judge found that the Appellant had shown no private life, having been in the United Kingdom only four months as at the date of her application. The Appellant was unable to satisfy the Immigration Rules. The judge found that there was no interference caused by the refusal decision, because family life between all relevant persons could continue as it had always done. Alternatively the Appellant and the sponsor could live together in Bangladesh, where he could access medical attention as he might require. In any event the Appellant could seek entry clearance from Bangladesh in accordance with Appendix FM of the Immigration Rules. The Secretary of State's decision was proportionate. Hence the appeal was dismissed.

3. Permission to appeal was granted (with little obvious enthusiasm) because it was considered arguable that the judge had erred in describing the burden of proof for Article 8 ECHR purposes. It was recognised in the grant that the point was possibly academic because the judge had examined the material alternatives.

4. Standard directions were made by the tribunal. A rule 24 notice opposing the appeal was filed by the Respondent.

Submissions

5. Ms Ahmed for the Appellant relied on the grounds of onwards appeal and grant. In summary she argued that the judge had erred in her proportionality assessment. Razgar [2004] UKHL 27 had not been followed by the judge. The burden had been not been on the Appellant to show that it was unreasonable for her family life to be conducted in Bangladesh, but rather on the Secretary of State. The judge had placed the bar too high,

6. Mr Norton for the Respondent, having noted the interchange between the tribunal and Ms Ahmed during submissions, wished to rely on the rule 24 notice and wished to add nothing further.

No material error of law finding

7. In the tribunal's view the grant of permission to appeal was generous, as indeed the terms of the grant indicated. The grant identified two apparently conflicting lines of authority on the burden of proof in Article 8 ECHR cases, AS (Pakistan) [2008] EWCA Civ 1118 and PG (United States of America) [2015] EWCA Civ 118. Sensibly Ms Ahmed did not seek to invite the tribunal to make any ruling on the question, which will await consideration by the Court of Appeal in an appropriate appeal. There was no skeleton argument and no relevant authorities were provided for the tribunal to consider this interesting question. Ultimately in the present appeal it was an evaluative exercise rather than one based on notions of burden of proof. The legal framework set out by the judge at [29] to [30] cannot be said to be positively mistaken.

8. This was plainly the right course for counsel to have taken, because in reality the judge had considered the facts of the appeal in the round, finding with sustainable reasons that the Secretary of State's decision caused no interference with the Appellant's chosen form of family life: see [59] of the decision. It was obvious that the sponsor and the Appellant had married in Bangladesh in the knowledge that she would not be able to live in the United Kingdom during the currency of the first marriage. Nevertheless the Appellant and the sponsor had a family together in Bangladesh. It would, of course, have been possible for the Appellant's sponsor and his first wife to have lived in Bangladesh, which was their mutual country of origin, and where polygamy is recognised, but not extensively practised. Later the Appellant's children chose to live in the United Kingdom. It was open for the Appellant to apply for entry clearance under Appendix FM of the Immigration Rules from 2012 onwards.

9. The judge also considered the alternative position (see [63]) recognising that the threshold for interference in Article 8 ECHR terms is low. The judge gave careful and thorough consideration to the facts on that alternative basis. She gave full and sustainable reasons for her proportionality findings, adverse to the Appellant.

10. The judge no doubt had in mind Lord Carnwath's statement at [57] of Patel [2013] UKSC 72: "It is important to remember that article 8 is not a general dispensing power." The grounds of appeal are no more than an expression of disagreement with a properly reasoned decision.

11. The tribunal finds that there was no material error of law.

DECISION

The making of the previous decision did not involve the making of a material error on a point of law. The decision stands unchanged.

Signed Dated 16th June 2017

Deputy Upper Tribunal Judge Manuell