Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number IA/11122/2015
IA/11126/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision and Reasons Promulgated
On 20th July 2016
On 30th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

AHMED ALI CHAPTI
SUEHEL VALI CHAPTI
(ANONYMITY DIRECTION NOT MADE)
Appellants
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Muman (Counsel, instructed by J M Wilson)
For the Respondent: Mr D Mills (Home Office Presenting Officer)

DETERMINATION AND REASONS
1. The First Appellant had entered the UK under the Immigration Rules at a time when he did not require an English language certificate in order to succeed under the Rules. His original application had been refused but following a successful appeal he entered the UK on the 2nd of December 2012 with leave expiring on the 28th of December 2014.
2. The Appellant had been party to the first instance litigation in the case of Bibi [2015] UKSC68 but did not take part in the appeals that followed. It is not disputed that the Appellant cannot meet the English language test requirements that now apply to any application he has to make. In the hearing before the First-tier Tribunal it was argued that in the circumstances it was disproportionate to require the Appellant take the test and so the appeals should have been allowed under article 8 outside the rules.
3. The Judge found that the Appellant could not succeed under the Immigration Rules, He noted specifically that the case was put on the basis of fairness. He found that the amendment to the rules was open to the Secretary of State and that paragraph 281 allowed for compassionate circumstances such as age or medical problems and he noted that it had not been suggested that the Appellant fell within any of the exceptions and it could not be suggested that the imposition of an English language test was not article 8 compliant, relying on Bibi. Having found that there were no insurmountable obstacles to family life continuing in India the appeal was dismissed under article 8.
4. The application for permission to appeal to the Upper Tribunal asserted that the Judge had erred in a number of respects. Referring to the finding in paragraph 20 that the Appellants' immigration status had been precarious it was suggested that was not correct as they had had leave to remain, were in the UK lawfully where they legitimately expected to remain and their private life warranted significant weight. It was further argued that the First Appellant's family life had developed whilst in the UK as had the First Appellant's wife's family life with his mother. It was submitted that the Judge's consideration of the Appellants' family and private lives had been inadequate and the assertion they could live in India gave no consideration to the time they had spent in the UK.
5. The application was considered by First-tier Tribunal Judge Simpson on the 3rd of March 2016. In granting permission it was noted that the Appellants had been granted entry clearance to the UK and at the time of the application were lawfully in the UK and had a legitimate expectation of settlement, in those circumstances it was arguable that their status was not precarious. It was also arguable that the Judge had not properly considered the Appellants' family life.
6. The Respondent's rule 24 response was served on the 15th of March 2016. Relying on AM (s117B) Malawi [2015] UKUT 260 (IAC) it was submitted that their presence was precarious as it was dependent on the grant of further leave. The Appellant could not meet the Immigration Rules and had no legitimate expectation to remain. Reasons for the findings under paragraph 276ADE and Appendix FM were given.
7. At the hearing Mr Muman put the case on a completely different basis arguing that the Judge had been wrong to find that the Appellant could not succeed given he had not passed the English language test. He submitted that it was not proportionate as it was not fair, he had satisfied the pre-entry tests and once in could not do so, account had to be taken of his age and level of intellect and that he had had no formal education, the evidence to the High Court was that he would find it difficult to pass the test. His wife is a British Citizen and living in the UK as such and his age was relevant.
8. Mr Muman went on, still arguing on the English language test, that the Judge had not recognised that the First Appellant did not have to pass the test. In paragraph 20 looking outside the rules was not strictly necessary, the Judge did not explore the exemptions in paragraph 284(ix), Bibi was a capacious basket and had been interpreted too narrowly. It should have been treated as a gateway to article 8.
9. For the Home Office Mr Mills noted that the grounds as drawn were narrow and were based on legitimate expectation and precariousness and that was answered by the case law, AM (Malawi). Legitimate expectation is specific and well defined and does not apply here. The expectation would be that the application would be considered under the rules that apply. Under section 117B the Judge was right to say that little weight attached to the Appellants' private life.
10. With regard to the Appellant's wife it had been thought that she was Indian with a right of abode rather than a British Citizen. She was in her 50s when she came to the UK having lived her life in India. It was open to the Judge to find that she could be expected to return there. There had been no evidence before the First-tier Tribunal to show that he had been on courses or had tutoring and, referring to paragraph 6 of his witness statement, there was no evidence of his having had assistance when he attended the offices. This was not a case where it had been shown that he could not do it if he tried. It was not compelling such that the Immigration Rules attracted little weight compared to his private and family life. Section 117B was aimed at integration and that was a continuous aim, the reasons given were more than adequate.
11. The grounds were specific and narrow as set out above. It is clear that the term precarious means that a person's presence in the UK is dependent on a grant of leave and on that basis the grounds and grant of permission are simply wrong.
12. Legitimate expectation is a limited concept and only arises in circumstances where an individual or organisation with authority makes a specific undertaking which another person is entitled to rely on. That is very clearly not the case here and it would be better if those drafting grounds of application for permission to appeal used appropriate terminology. The Appellants had an expectation that their applications would be considered in accordance with the applicable Immigration Rules. That expectation was met
13. There is no dispute taken in the grounds with the statement by the Judge in paragraph 14 that "It is not suggested that that the Appellant falls within any of the exceptions under paragraph 281." The argument put forward by Mr Muman was not raised in the grounds of application and he did not apply to amend the grounds of application.
14. Having regard to the case of Razgar [2004] UKHL 27 I have considered the 5 stages. The interference in the Appellants life is in accordance with the law, stage 3. The case of Bibi has established that the interference can be justified. So far as proportionality is concerned the First Appellant had not provided evidence to show that he had done all that could sensibly have been expected of him.
15. Mr Mills observed there was no evidence of his attending classes such as ESOL or other form of tutoring. His witness statement did not suggest that he was accompanied to where tests were held, the assistance of family members might have assisted his ability to cope with the circumstances.
16. There are a number of problems with the appeal which lead me to dismiss it. The first is that Mr Muman put the case on a basis which was very different from that raised in the grounds of application and on which permission was granted and there was no application to amend.
17. Putting that procedural matter to one side the fact is the First Appellant had not shown that he is unable to pass the test as he has not shown that he has taken reasonable steps to equip himself to do so. Had there been evidence of attendance and ESOL classes and/or tutoring and evidence that he was assisted in attending the tests then that might have been different but the evidence suggested that he had done very little to take advantage of living in the UK to improve his chances.
18. In those circumstances the finding that he did not meet the requirements of paragraph 281, apparently conceded in the First-tier Tribunal hearing, was open to the Judge and the argument appears to be an attempt to use article 8 to circumvent the rules when the evidence does not show compelling circumstances.
19. I would add that the findings in relation to article 8 and the ability of the Sponsor and Appellant to live in India were also justified. Whether the Sponsor is now a British Citizen of has ILR does not alter the finding that, given she lived for many decades in India and still converses with the Appellant in Gujarati, the finding that she could reasonably live there was open to the Judge for the reasons given.
CONCLUSIONS
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision.
Anonymity
The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I make no order.
Fee Award
In dismissing the appeal I make no fee award.

Signed:

Deputy Judge of the Upper Tribunal (IAC)
Dated: 22nd August 2016