Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10246/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 February 2017
On 28 February 2017

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

mrs gloria offei
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Y Pearl instructed by Davies Blunden & Evans Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is Mrs Gloria Offei and she is a citizen of Ghana. Her date of birth is 19 December 1982. She made an application on 20 December 2013 for leave to remain as a spouse here and that application was refused by the Secretary of State on 19 February 2014. The appellant came here in 2013 with leave as a Tier 1 partner and her spouse has been here since 2003. He was granted indefinite leave to remain before in January 2014 and became a British citizenship in September 2015. They have two children together, Nathan, their first child was born on 16 October 2014. There is now a second child of the family who was born in August 2016.

2. The appellant appealed against the decision of the Secretary of State and her appeal was dismissed by Judge of the First-tier Tribunal Tynan in a decision that was promulgated on 15 April 2016 following a hearing at Hatton Cross on 21 March 2016. The appellant made an application for permission to appeal against that decision and permission was “granted” by Judge of the First-tier Tribunal Brunnen on 8 September 2016 following an application by the appellant. The Secretary of State filed a Rule 24 response asserting that it is clear from the body of Judge Brunnen’s decision that the decision to grant permission was a typographical error and that he had intended to refuse permission and this was clear from the main body of the decision and that the slip rule (Rule 31 of the Tribunal Procedure Rules 2014) should be invoked.

3. The matter was listed before the Upper Tribunal for an error of law hearing on 19 October 2016 but that hearing was adjourned. Judge Brunnen amended his decision under the slip rule and this decision was issued to the parties on 23 November 2016. The body of the decision remains the same but it is concluded at the top of the decision that permission is refused rather than granted and the appellant as a result of this sought permission to appeal to the Upper Tribunal. I directed that the matter be listed for an oral hearing as soon as practicable to hear submissions in respect of the status of Judge Brunnen’s decisions in the light of Katsonga (“Slip Rule”; FtT’s general powers) [2016] UKUT 00228. I stated in that decision that if it is decided that the first decision is the effective decision, the UT would go on to consider whether the judge in dismissing the substantive appeal erred and that the standard directions issued by the Tribunal will apply.

4. At the hearing before me I heard submissions in relation to Katsonga. Mr Kotas had not seen a copy of my decision prior to the hearing. There was no reason why I should not apply Katsonga and in doing so I reach the unavoidable conclusion that the first decision granting permission is the effective decision. The second “decision” effectively attempts to reverse the first decision and this is outside the remit of the slip rule. I accept the difficulties as pointed out to me by Mr Kotas in relation to the remit of the grant of permission and the intentions of Judge Brunnen, but the power cannot be used to change the substance of the order. I proceeded on the basis that the hearing before me was an error of law hearing, Judge Brunnen having granted permission to appeal against the decision of Judge Tynan.

5. Judge Tynan made extensive findings, having heard the evidence of the appellant and the sponsor and having considered the evidence that was before him in relation to the eldest child (the second child had not been born at the date of the hearing). The judge’s findings and conclusions are contained at some length at paragraphs 12 to 34:

“12. The Appellant is a citizen of Ghana. She and Mr Gyasi had married on 17 May 2013. She entered the United Kingdom on 8 December 2013 when she was nearly 31 years of age.

13. The Appellant and Mr Gyasi have a son, Nathan Nana Yaw Anaafi Gyasi, born on 16 October 2014. He is therefore very nearly 18 months’ old. Nathan was at Tribunal and was a lively but happy presence.

14. Mr Gyasi is settled in the United Kingdom and is a British citizen. As a result, Nathan having been born to a British citizen is automatically a British citizen by birth. Copies of their passports, which confirm their British citizenship, were in the Tribunal file.

15. Mr Gyasi has been in the UK since he was 24 years old. He last visited Ghana in 2013. His evidence was that he has travelled to Ghana four times since coming to the UK in 2003. He has four siblings, three of whom are married. His youngest sibling is still in full-time education and he supports him financially. Mr Gyasi’s father is retired. His mother is a small trader. He is in regular contact with his family and in the course of giving evidence also referred to ongoing contact with friends from university in Ghana. He makes available financial support to his family. The statement filed with the Tribunal on 29 March indicates that Mr Gyasi has transferred over £16,000 in total to Ghana over a 7 year period (Mr Gyasi was unable to secure records going further back in time). That suggests that Mr Gyasi is supporting his family and the Appellant’s family to the tune of nearly £200 per month.

16. The Appellant does not work and is Nathan’s primary carer. Mr Gyasi referred to her as Nathan’s sole carer. Nathan is currently too young to attend nursery school. His parents are understandably ambitious for him. Mr Gyasi stated that he would have the best possible education and access to good health care in the UK and expressed his wish that Nathan should benefit from what he, Mr Gyasi, had achieved. He said, “The UK is where I want to stay”. In response to questions from Ms Kayoda he said that there were no health or care or education issues that the Tribunal should be aware of in relation to Nathan. However the further documents filed with the Tribunal by Mr Gyasi on 23 March 2016 confirm that Nathan was seen at an eye clinic on 6 January 2015 and again on 17 February 2015 and that he has a further check-up scheduled for July this year. I note the contents of a short letter of report from Ms Al-Nuaimi, a Consultant Ophthalmic Surgeon at Frimley Health NHS Foundation Trust following Nathan’s attendance at her clinic on 17 February 2015:

‘I reviewed Nathan in my paediatric ophthalmology clinic today. He was initially referred due to difficulties seeing the red reflex. Mum and Dad have no visual concerns with regards to Nathan. Indeed in clinic today he was a happy alert child. He fixed and followed well with no objection to occlusion of either eye. His eyes were straight and motility was grossly full. The dilated fundoscopy revealed clear lense and media and normal fundal examination. His refraction was in keeping with his age. I re-assured the parents. He should be seen by our orthoptist for a formal visual check when he is one year old and should all being well at that point we can discharge him from our care.’

The letter indicates a degree of anxiety on the part of the parents (reflected also in Mr Gyasi’s letter to the Tribunal dated 23 March 2016), but no material medical issues.

17. In his letter of 23 March 2016 Mr Gyasi expresses concern that if further consultations and treatment were to be required in Ghana these would have to be paid for privately as he and the Appellant have not contributed to the social security system in Ghana. He states that he would be at a further disadvantage in this regard as he believes he would be obliged to undertake a year’s National Service on return to Ghana.

18. The Appellant adopted Mr Gyasi’s evidence. She too is ambitious for Nathan. She said ‘You pray your child goes higher than you’. She referred to there being good private schools in Ghana, but that the state funded schools are poorly equipped and that many pupils struggle to attain basic standards of literacy. She contrasted the position in the United Kingdom where she feels that every child has access to a good basic education.

19. The Appellant is an only child. Her father is diabetic and has had a leg amputated as a result of his diabetes. Her mother is a seamstress and supports herself and her husband albeit with regular financial assistance from Mr Gyasi.

20. The Appellant and Mr Gyasi presented as two decent, honest individuals. They were articulate and thoughtful in their evidence. The Respondent has not questioned their honesty or credibility. In the Appellant’s case she has an acute sense of having not realised her own full academic potential, something she hopes to remedy in the UK. By contrast Mr Gyasi was educated to Degree level in Ghana and has continued his studies in the UK including studying for a Masters. He is industrious, hardworking and resourceful, and he is committed both to his own and his family’s continuing learning and development. He is evidently from an academic family and has financially supported his siblings through their educations. His evidence was that his qualifications and work experience in the UK would count for nothing in Ghana, where job opportunities, he said, depend upon who you know. Questioned by Ms Kayoda he identified this as a very significant hardship they would face if they were obliged to return to Ghana, and referred also to the resulting impact on the wider family he supports. He said, ‘I am really going to struggle’. I have noted already that the financial support he provides amounts to approximately £200 per month.

21. Mr Gyasi’s evidence was that if they were obliged to return to Ghana the first place he and the Appellant would return to would be his parent’s home, but that it is a two bedroomed property so is not somewhere they could stay long term. When asked by Ms Kayoda as to the obstacles to their return, the Appellant referred to Mr Gyasi being the backbone of both their families.

22. The requirements of sub-paragraph (a)(i) of paragraph EX.1 are undoubtedly met in this case. The Appellant has a genuine and subsisting relationship with Nathan who is under the age of 18, is in the UK and is a British Citizen. The question is whether or not it would be reasonable to expect Nathan to leave the UK.

23. Strictly, there is no need for Nathan to leave the UK. If his mother is obliged to return to Ghana he could remain with his father in the UK. However, that would be to overlook the reality that his mother is his full-time carer and his father works full time (indeed he is currently holding down two jobs). It is reasonable to assume that if the Appellant returns to Ghana, Nathan will go with her.

27. I am mindful not to consider Nathan as a parcel who is easily moveable across borders. He is a British citizen, born in the United Kingdom whose father has lived in the United Kingdom for approximately thirteen years and who is lawfully settled here. Their citizenship is a significant and weighty factor in this case. However, I am also mindful that British citizenship is not a ‘trump card’ and that I am still required under the Rules to consider whether it would be reasonable to expect Nathan to leave the UK. In particular, he is still a very young child. It will be at least another two years, possibly three years, before he enters the UK education system. Given his very young age he has no significant links with the community here, and there are no other family members in the UK. I am satisfied that he could readily adapt to life in Ghana, particularly as he would have the benefit of a close, extended family network there. I recognise that the family’s material quality of life would unlikely be to the same standard it would be in the United Kingdom, but Nathan’s parents are intelligent and highly resourceful individuals, and I am confident that they are capable of ensuring that his educational, medical and social needs will be met in Ghana. I have due regard to the fact that as a British citizen Nathan has rights which he will not be able to exercise if he moves to Ghana. He may lose the advantages of growing up and being educated in the United Kingdom. I take into account in this case as a countervailing consideration the need to maintain firm and fair immigration control, albeit Mr Gyasi is lawfully settled in the United Kingdom and is fully supporting and maintaining the Appellant and Nathan.

28. In all the circumstances I am satisfied on balance that it would be reasonable to expect Nathan to leave the United Kingdom and accordingly I refuse the appeal in so far as the Appellant does not satisfy the requirements of paragraph EX.1(a) of Appendix FM of the Immigration Rules.

29. I turn then to paragraph EX.1(b). The Appellant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen. The question I must consider is whether there are insurmountable obstacles to family life with Mr Gyasi continuing outside the UK. In Gulshan (Article 8 – New Rules – Correct Approach) [2013] UKUT 00640 (IAC), referring to how a decision maker should approach ‘insurmountable obstacles’, the Upper Tribunal said:

““Insurmountable obstacles” are dealt with in paragraph 3.2.7c of the Guidance. This states that the decision-maker should consider the seriousness of the difficulties which the applicant and their partner would face in continuing their family life outside the United Kingdom, and whether they entail something that could not (or could not be expected) be overcome, even with a degree of hardship for one or more of the individuals concerned. It is said to be a different and more stringent assessment than whether it would be “reasonable to expect” the applicant’s partner to join them overseas. For example, a British Citizen partner who has lived in the UK all their life and speaks only English may not wish to uproot and relocate halfway across the world, “but a significant degree of hardship or inconvenience does not amount to an insurmountable obstacle”. The decision-maker is advised to look at whether there is an inability to live in the country concerned. The focus should also be on the family life which would be enjoyed in the country to which the applicant would be returned, not a comparison to the life they would enjoy were they to remain here. As to cultural barriers, the guidance explains that these might be relevant in situations where the partner would be so disadvantaged that they could not be expected to live in that country. “It must be a barrier which either cannot be overcome or would present a very high degree of hardship to the partner such that it amounts to an insurmountable obstacle”.”

31. There would undoubtedly be a degree of hardship for both the Appellant and Mr Gyasi, and indeed their respective families, if they were obliged to return to Ghana. But that hardship and the inevitable inconvenience in returning to Ghana does not in my view amount to an insurmountable obstacle. At Tribunal, the Appellant and Mr Gyasi each expressed their firm desire to continue their family life in the UK and referred to the opportunities here, as well as the superior education and health systems. The Immigration Rules do not permit me to simply give effect to their expressed preference. I am required to consider the family life which would be enjoyed in Ghana were they to return. I accept that Mr Gyasi has spent much of his adult life, certainly all of his working life, in the United Kingdom. However, he is a highly qualified individual. As I have said, he is hard working and resourceful. If he were to return to Ghana with the Appellant he would have the benefit of a close family network to support him in his search for employment. He would also have the benefit of a Degree from Accra University as well as his UK qualifications and work experience. The Appellant and Mr Gyasi’s families and many friends are still all in Ghana. They could stay with Mr Gyasi’s parents whilst Mr Gyasi searched for employment and then found more permanent accommodation. In effect the Appellant and Mr Gyasi were inviting me to compare their life here in the UK with the life they might have in Ghana. That is not my task. It is very clear to me that they will be able to continue their family life in Ghana surrounded and supported by their respective families, without undue hardship or difficulty. The obstacles they face are not insurmountable or very significant. On the contrary, given Mr Gyasi’s abilities and qualifications and his family network, and given that the Appellant only came to the UK at the end of 2013, they should be in a position to overcome any obstacles without undue difficulty. Accordingly, I refuse the appeal in so far as the Appellant does not satisfy the requirements of paragraph EX.1(b) of Appendix FM of the Immigration Rules.

32. As regards paragraph 276ADE(1) of the Immigration Rules, the Appellant does not meet the requirements of paragraphs 276ADE(1)(iii) to (v). She is over the age of 25 and has not lived in the UK continuously for at least 20 years. In which case, the question is whether the requirements of paragraph 276ADE(1)(vi) are met in her case. The Respondent concluded that it could not be said of the Appellant that she has no ties (including social, cultural or family) with the country to which she would have to go if required to leave the UK. I agree. The Appellant has extensive ties to Ghana. She lived in Ghana until she was nearly 31 years of age. Her parents are still there, as are many of her friends. She has only been in the UK for a little over to years. Her husband and child are obviously here in the UK with her, but otherwise she still has strong social, cultural and family ties to Ghana. For these reasons also and given by findings above, there are no significant obstacles to the Appellant’s integration into Ghana if required to leave the United Kingdom. Accordingly, I refuse the appeal in so far as the Appellant does not satisfy the requirements of paragraph 276ADE(1) of the Immigration Rules.

33. I have considered whether there are circumstances to warrant consideration of a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules. In my view there are not. I have considered whether it would be disproportionate to remove the Appellant in circumstances where Mr Gyasi would have to follow her to Ghana if they wished to continue their family life together, especially when he is a British citizen, or because she would have to return to Ghana and make an out-of-country application for leave to enter which if granted would mean her removal might serve no good purpose. In relation to the latter issue I have due regard to the House of Lords’s Judgment in Chikwamba v Secretary of State for the Home Department [2008] UKHL 40; [2008] 1 WLR 819.

34. I am of the view that the Appellant and Mr Gyasi’s circumstances are unexceptional. I have regard to the fact that Nathan has a scheduled check-up at the eye clinic in July, but Ms Al-Nuaimi’s report which I have already referred to indicates no cause for concern. I also take into account that Mr Gyasi provides financial to both his own and the Appellant’s family, albeit both sets of parents have some income, and in the case of Mr Gyasi there are other siblings potentially to be relied upon. The withdrawal of Mr Gyasi’s support may cause some hardship and anxiety but it does not in my view amount to exceptional circumstances to warrant consideration of a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules. Finally, this is not a case where it can be said that an out-of-country application for leave to enter would clearly be successful, such that the interference with the Appellant’s family life with her husband associated with removal could be said not to serve any good purpose. The Respondent was unable to determine whether the Appellant met the income threshold and/or related evidential requirements under the Rules. That evidence was not before me on 21 March 2016. Such limited evidence as there was dated back to 2013. I am satisfied that, should Mr Gyasi elect to remain in the UK, the Appellant could and should return to Ghana to apply there for entry clearance to return to the UK. The requirement that she do so is in accordance with the law and in pursuance of the legitimate aim of the maintenance of effective immigration controls and of public confidence in their maintenance and it would not be disproportionate in the circumstances to expect her to do so.”

6. The appellant was not legally represented at the hearing before the First-tier Tribunal and Ms Pearl indicated at the hearing before me that the appellant relied on further evidence relating to the birth of a second child and the sponsor’s payslips, some of which predate the decision of Judge Tynan. There had been no application under Rule 15(2)(a) of the 2008 Procedure Rules although the appellant has for some time been represented ( from at least the time that the initial grounds of appeal seeking leave against the decision of Judge Tynan were drafted), I was not provided with a reasonable explanation why the evidence that predates the decision of Judge Tynan was not made available to him and why the evidence was not submitted properly in accordance with Rule 15(2)(a). Ms Pearl did not explain why the evidence was material but clarified that she would only seek to adduce the evidence in the event that the decision was to be remade and not at the error of law stage. Mr Kotas objected to the admission of the evidence at the error of law stage, but in the light of Ms Pearl’s clarification there was no need for me to consider admissibility at this stage.

7. The grounds are excessively long and repetitive and I asked Ms Pearl to clearly advance the appellant’s case and focus on the points that she wished to rely on. Ms Pearl’s challenge as articulated at the hearing before me is significantly narrower than the grounds. Ms Pearl relied on the following grounds;

(1) The judge when assessing reasonableness did not consider the conduct of the appellant.

(2) The judge did not consider the practical realities of separation in the Article 8 proportionality context, taking into account that the child is a British citizen.

(3) The appellant has not committed any criminal offences and has abided by the Rules. (In my view, there is a clear overlap between (1) and (3)).

(4) A further matter emerged in submissions namely the Chikwamba (Chikwamba [2008] UKHL 40) point and that the appellant could meet the income threshold and therefore the appeal was bound to succeed.

The Zambrano (Ruiz Zambrano C- 34/09) point was raised at great length in the grounds of appeal. Ms Pearl conceded that the eldest child would not be compelled to leave the UK following the decision and therefore the Zambrano point in respect of Nathan was not pursued. In any event, in my view, the judge clearly had it in mind in concluding at [23] that there would be strictly no need for the child to leave the UK.

8. There is no challenge to the evidence as recorded by the judge or to the specific findings of fact made by the judge. The arguments advanced by Ms Pearl in oral submissions are effectively a challenge to the judge’s conclusions in respect of Article 8 and the assessment of reasonableness (in the context of Appendix FM EX.1 (a) (ii) and section 117B (6) of the 2002 Act), but the challenge is very narrow ( see the [7] 1-4 above). There was no properly articulated challenge to the decision that there would be no insurmountable obstacles to family life (appendix FM EX 1. (b) or that there would be no significant obstacles to integration (Para 276ADE of the Rules). The judge properly identified the issue at [22] of the decision, namely whether it would be reasonable to expect Nathan to leave the UK (the appellant has a genuine and subsisting relationship with him and he is a British citizen). The judge concluded that it would be reasonable, having given detailed consideration to the question at [27], taking into account all material factors that weigh in favour of the appellant including the weighty factor of the child’s nationality. Full consideration of [27] and the findings generally make it clear that the judge attached significant weight to the child’s nationality in the context of reasonableness. The judge cannot be faulted for taking into account the child’s age and that he has no significant links here and a close and extended family in Ghana. There was no suggestion that the appellant had breached immigration laws and it is unarguable that the judge was not mindful of the fact that she had remained here lawfully throughout her stay here. The case was not advanced by the Secretary of State on any other basis. The decision in respect of reasonableness and proportionality must be considered in the context of the wider findings in respect of appendix FM and 276ADE.

9. The Chikwamba point is misconceived having considered the findings of the judge at [34]. There was no cogent challenge to the conclusion that there was insufficient evidence before the judge in relation to whether or not the appellant satisfied the financial requirements of the Rules.

10. The judge considered proportionality at [34]. There is no specific reference to the citizenship of the child at [34], but there was no need for the judge to repeat the full and detailed findings that had already been made in respect of the child and the decision must be read as a whole. At [27] the judge gave primary attention to the best interests of the child. The judge concluded that it would be proportionate for the sponsor to return with his family to Ghana and therefore separation of the family is not an inevitable outcome. In any event, if it is the appellant’s position that she would meet the requirements of the rules, whilst this was not an argument adequately advanced before the First-tier Tribunal, it remains the position of the appellant and the family could therefore return for a period of time whilst she made an application for entry clearance. The judge gave adequate weight to the impact on the child of the removal of the appellant.

11. The grounds as advanced by Ms Pearl in submissions do not identify an error of law. The conclusions in relation to proportionality are grounded in the evidence and adequately reasoned. It has not been established that the judge failed to take into account material evidence that was before him or placed weight on immaterial matters including the appellant’s immigration history. The assessment of proportionality is lawful and sustainable and the decision of the First-tier Tribunal to dismiss the appeal under the Immigration Rules and the wider Article 8 is maintained.

Notice of Decision

The appeal is dismissed.

Signed Joanna McWilliam Date 27 February2017

Upper Tribunal Judge McWilliam