Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA107142015
IA107152015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th May 2016
On 14th June 2016

Before

UPPER TRIBUNAL JUDGE REEDS

Between

shahid hussain (first appellant)
tayyaba abid (second appellant)
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr R Sharma, Counsel instructed by AWS Solicitors
For the Respondent: Mr S Kandola, Senior Presenting Officer

DECISION AND REASONS

1. The Appellants are citizens of Pakistan born on 18th April 1983 and 16th February 1988 respectively. They appeal, with permission, against the decision of the First-tier Tribunal (Judge Watt), who in a determination promulgated on 12th November 2015 dismissed their appeals against the decision of the Secretary of State to refuse to grant leave to remain in the United Kingdom on the basis of their family and private life.
2. Permission to appeal was granted by the First-tier Tribunal on 28th April 2016 for the following reason:-
"It is arguable that the judge erred in law by failing to make any findings on the relationship between the First Appellant and his brother who resides in the UK in the context of Article 8 of the ECHR."
3. At the hearing before the Upper Tribunal, the Appellants were represented by Mr Sharma and the Secretary of State by Mr Kandola. Neither representative had appeared in the court below.
4. There is no dispute about the factual background set out in the determination which can be summarised as follows. The First Appellant entered the UK on 3rd October 2008 as a student with leave until 31st January 2010. He had been granted entry clearance to study for a Masters degree between 2009 and 2011. He obtained his qualification in 2012. He then obtained leave to remain to study for a further course in business management until 18th January 2013 and then undertook a further course. On 4th September 2013 he was granted leave to remain as a Tier 4 (General) Student valid until 30th January 2015.
5. In September 2013, he visited Pakistan and married the Second Appellant. She was granted leave to enter as his spouse in or about November 2013. She subsequently entered the UK on 7th December 2013 and they have been living together in the UK since that date. They have two children born to them whilst in the United Kingdom in 2014 and 2015.
6. The Appellants made applications for leave to remain on the basis of their private life on 29th January 2015. The Secretary of State considered those applications but in a detailed refusal letter dated 5th March 2015, the Secretary of State refused their application under Appendix FM and paragraph 276ADE of the Immigration Rules.
7. There is no dispute as to the reasons given by the Secretary of State for refusing their respective applications and they are set out in the determination of the First-tier Tribunal at paragraphs [5] to [14] of the determination. The judge heard evidence from the First Appellant, his brother and a friend and neighbour of the First Appellant [see paragraph 21] that evidence was recorded at paragraphs [18] to [21]. The judge's findings of fact and conclusions are set out at paragraphs [20] to [29] and after having considered and evaluated the evidence in the context of the Rules, he dismissed their appeals under the Immigration Rules and on human rights grounds.
8. On behalf of the Appellants, Mr Sharma submitted that the judge had recorded the evidence at paragraph [20] that the Appellant and his brother are "moral support" for each other and at paragraph [23] recorded the submission made by Counsel that the First Appellant lived with his brother and that the case was advanced on the basis of one "outside of the Rules". Thus he submits he had family life with his brother. However, the judge failed to make findings about this within the determination. He further submitted that the Respondent had accepted in the Rule 24 response that there had been no finding in this respect and whilst he acknowledged that it was not necessary to set out every piece of the evidence, where there was a key conflict this should have been resolved.
9. He submitted that in relation to the current case the fact that the Appellant lived with someone whom he depended on for moral support was sufficient evidence upon which to make a finding of dependency and thus "family life."
10. He reminded the Tribunal that the Immigration Rules relating to Article 8 are not a "complete code" and that family life between the Appellant and his brother were not a matter that could be considered under the Rules. Thus the error of law relied upon was that the judge failed to consider family life between the Appellant and his brother.
11. Mr Kandola, on behalf of the Secretary of State relied on the Rule 24 response in which it was submitted that the First-tier Tribunal Judge directed himself appropriately having considered the submissions made by the parties and the relevant factors relating to the claim overall. He submitted that whilst a specific finding had not been made, on the face of the evidence the relationship was not one in which it could be said it was one of dependency and the brothers referred to the relationship being one of "moral support". As such, the error was not material as there appeared to be nothing upon which to indicate there was family life with the Appellant's adult brother or that it would make the decision disproportionate.
12. By way of reply, Mr Sharma submitted that the relationship between the Appellant and his brother had not been considered and was therefore a material error. He therefore submitted that in the light of that, the decision should be set aside and should be remitted to the First-tier Tribunal.
13. I reserved my decision.
14. The way in which the case was advanced before the Immigration Judge is set out at paragraphs [22] and [25]. Firstly, it was conceded that neither Appellant could succeed under Appendix FM; under the "partner route" or the "parent route" in the light of their factual circumstances. Neither Appellants were British citizens or settled in the UK with refugee leave or on humanitarian protection grounds. Furthermore, neither of the two children were British citizens nor had they lived in the UK for seven years.
15. It was submitted that each Appellant satisfied paragraph 276ADE(vi) relating to their private lives. Whilst the written grounds at [19] give the appearance that there was a challenge to the conclusions reached under paragraph 276ADE, permission was not granted on that ground but in any event Mr Sharma has not advanced any submissions on the basis that either Appellant could meet the requirements of paragraph 276ADE in the light of the factual findings made by this judge. Even if there had been such a challenge, I am satisfied that the findings of fact made were ones that were open to him and were firmly evidence-based conclusions reached from the evidence given by the respective parties.
16. Those findings can be summarised as follows. In relation to the First Appellant he was born in 1983 and had entered the United Kingdom at the age of 25 in October 2008 as a student. Therefore he had spent his first 25 years in Pakistan. The judge rejected his claim that he had no friends or social connections in Pakistan or that those social connections had been broken. The judge found that this was inconsistent with the Appellant's conduct in 2013 when he visited Pakistan in 2013 and lived there for a period of six weeks. In relation to the Second Appellant, the First Appellant had returned to Pakistan and married her in November 2013 and as a consequence she had entered the UK in December 2013 and thus had lived in the United Kingdom for a short period when placed against her lengthy prior residence in Pakistan of the previous 25 years [see paragraph 26]. The judge considered their family circumstances noting that they had two children born in 2014 and 2015 but in view of their young ages, that their private lives centred upon their parents and that they could return to Pakistan with their parents as a family unit [paragraph 26]. Consequently the judge found that none of the Appellants could meet paragraph 276ADE and that there were no significant obstacles to their integration in Pakistan.
17. It had also been argued that the circumstances of the Appellants should be considered outside of the Rules for the reasons given at paragraph [23] of the determination namely the length of residence of the First Appellant, that he had obtained qualifications in the UK and had made many friends and that he was living with his brother and was giving "moral support to his brother" and that he had not been a burden on the state and had a good command of English [see 24].
18. The ground advanced on behalf of the Appellant by Mr Sharma and set out in the written grounds is that the judge erred in law by failing to make findings on the relationship between the Appellant and his brother in the context of Article 8. As I have set out, Mr Sharma submitted that in the light of the judge's recording at paragraph [20] that the Appellant relied on his brother for moral support and at paragraph [23] recording the submission made that the Appellant lived with his brother and was giving moral support to his brother that this was evidence of family life or in the alternative could be considered as part of the First Appellant's "private life". However he submitted there was no finding on this. He described this as a "key conflict" that should have been resolved and that as the Rules are not a complete code, their relationship was not covered under paragraph 276ADE and thus should have been considered outside of the Rules.
19. In the skeleton argument prepared for the hearing by Mr Sharma, he submitted at paragraph [5] that the relevant question is whether there was an arguable substantive breach of the Appellant's Article 8 rights. I have considered with care the submissions from each of the advocates. I have considered them in the light of the determination and the evidence that was before the First-tier Tribunal and I have reached the conclusion that it is not arguable that there was a substantive breach of the Appellant's Article 8 rights and that there is no material error of law in the judge's determination. I shall give my reasons for reaching that conclusion.
20. When considering the jurisprudence relating to Article 8, if the requirements of the Rules cannot be met, and a judge finds that an Article 8 assessment outside them is required, there needs to be compelling circumstances (see SS (Congo) and others [2015] EWCA Civ 387). At paragraph [33] the court said:-
"In our judgment, even though a test of exceptionality does not apply in every case falling within the scope of Appendix FM, it is accurate to say that the general position outside the sorts of special contexts referred to above is that compelling circumstances would need to be identified to support a claim for a grant of LTR outside the new Rules in Appendix FM. In our view, that is a formulation which is not as strict as a test of exceptionality or a requirement of 'very compelling reasons' (as referred to in MF (Nigeria) in the context of the Rules applicable to foreign criminals), but which gives appropriate weight to the focused consideration of the public interest factors as finds expression in the Secretary of State's formulation of the new Rules in Appendix FM."
21. Thus it is not sufficient to simply find that if in a particular case, the requirements of the Rules are not met, an assessment outside the Rules will be required. Compelling circumstances need to be identified taking into account the public interest. Any assessment will still need to be made "through the lens" of the new Rules (see paragraphs [37] and [74] of AQ and Others [2015] EWCA Civ 250) and that reasons why an applicant fails to meet the requirements of the Rules are taken into account.
22. When that is applied to the consideration of the issues before the First-tier Tribunal, in my judgment it demonstrates that the judge had given full and proper regard to that jurisprudence. He correctly identified whether there were circumstances which would cause him to look at Article 8 outside of the Rules. Whilst he made reference to whether there were any "special circumstances" I am satisfied that when the determination was read as a whole that what the judge was referring to were "compelling circumstances". The judge then proceeded to consider this issue "through the lens" of the Rules taking into account the reasons why the parties concerned could not meet the requirements either under Appendix FM and paragraph 276ADE. The judge considered their length of residence (the First Appellant since 2008 and the Second Appellant since December 2013). He had earlier found that there were no significant obstacles to the family's reintegration to Pakistan. The parties continued to have cultural and language ties to Pakistan and in the case of both Appellants had prior lengthy residence of some 25 years and the Second Appellant had family in Pakistan. The judge also found, contrary to their evidence, that they retained friendships in Pakistan evidenced by the First Appellant living in Pakistan for six weeks in 2013 [paragraph 28].
23. The judge took into account the two children, both of whom were very young born in 2014 and 2015 and that there was nothing to say that the children could not re-establish life in Pakistan, their country of nationality. The judge considered that whilst the second child had complications at birth, there were no health needs for either child (or indeed the two adult Appellants) which would require consideration outside of the Rules. Thus the "compelling circumstances" that the Appellants' Counsel sought to rely upon as identified at paragraph [23] had been taken into account in the earlier part of the determination.
24. The judge also identified the public interest factors relevant to Section 117B and that the Appellant's private life was established at a time when his residence was precarious (see AM (Malawi)) and that he had been granted a visa for a limited purpose as a student and that the Second Appellant had entered as a spouse only for as long as the First Appellant was a student in this country. Thus the "compelling circumstances" that Counsel had sought to rely upon and as identified in paragraph [23] of the determination had been taken into account.
25. Mr Sharma submits that the First-tier Tribunal failed to consider family life with his brother and that this had amounted to a "compelling circumstance". I have considered the determination in the light of the evidence that was advanced before the judge. He recorded at [20] that the Appellant's brother gave evidence that he relied upon his brother for moral support in the UK. At [23] he records a submission that the First Appellant lived with his brother in the UK and was giving "moral support to his brother."
26. I have considered the evidence before the First-tier Tribunal both the documentary evidence and the oral evidence and I am satisfied that this was the extent of the evidence that was before the judge. The documentary evidence in the form of a witness statement from the Appellant at paragraph [9], referred to his brother's circumstances. He had come to the UK in November 2012 as a student, he had met a Portuguese national and married her and they were living together. At paragraph [20] he said that since his arrival he had lived with him and that they depended on each other for day-to-day needs and moral support. There was a witness statement from the Appellant's brother (see page 31 Appellant's bundle) and that he had lived with his brother and stated "I and my brother support each other for everything." There was no further particularisation or any further evidence concerning the asserted level of dependency either in the documentary evidence or as set out in the determination. Nor has it been substantiated in the evidence before me that there was anything more than the judge had recorded as it being "moral support". As I have set out earlier, the documentary evidence was vague and wholly lacking in detail.
27. In my judgment the evidence does not demonstrate that family life existed between the two adult siblings. The decision of Kugathas v SSHD [2003] EWCA Civ 31 (as set out in the decision of Singh and Anor v SSHD [2015] EWCA Civ 630), records Sedley LJ accepting the approach of the European Commission for Human Rights in S v The UK [1984] 40 DR 196 that
"Generally the protection of family life under Article 8 involves cohabiting dependants, such as parents and their dependant, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties."
At paragraph [19] he stated he stated that
"Returning to the present case, neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together, in my judgment enough to constitute family life. Most of us have close relations of whom we are extremely fond and whom we visit, or who visit us, from time to time, but none of us would say on those grounds alone that we share a family life with them in any sense capable of coming within the meaning and purpose of Article 8."
At paragraph [25] Arden LJ stated that
"25. Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties ? Such ties might exist if the Appellant were dependant on his family or vice versa ?"
28. The decision of Singh at [24] stated that "the love and affection between an adult and his parents or siblings will not of itself justify a finding of family life. There has to be something more."
29. In this case, the evidence in my judgment was wholly lacking and did not demonstrate any level of dependency other than "moral support" which was not particularised or evidenced any further than that. When set against the particular facts of the Appellant and his brother, namely that the First Appellant and his brother were both adults, the First Appellant had entered the UK in 2008 and his brother had not entered until 2012 and therefore had been living independently from each other during that period. Both his brother and the First Appellant had formed independent family lives of their own with their respective partners. The Appellant's brother was married to an EEA national. The First Appellant had also established a family life with his wife. Consequently I am satisfied that there was no foundation for a finding that family life existed based on the evidence that was put before the First-tier Tribunal and the nature of the relationship (even if it was considered as part of private life). It cannot be said it was of a compelling nature to demonstrate that a grant of leave outside of the Rules was warranted.
30. Therefore whilst the judge did not refer to the relationship between the Appellant and his brother, in the light of the lack of evidence and in the light of the particular circumstances I have identified above, it has not been demonstrated that this was a "compelling circumstance". Consequently, any error in the judge's approach has not been shown to have been material and on the particular facts as found by the judge it could not properly be said that they would warrant a grant of leave outside of the Rules or that their removal was disproportionate.

Decision

The decision of the First-tier Tribunal did not involve the making of a material error of law. I dismiss the Appellants' appeal.

No anonymity direction is made.

Signed Date 13 June 2016

Upper Tribunal Judge Reeds