Tribunal decisions

The decision

St
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11593/2015

THE IMMIGRATION ACTS

At Field House
on 23rd December 2016
Decision and Reasons Promulgated
on 4th January 2017

Before
DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between
MR. DENIS TANAEV
(ANONYMITY DIRECTION NOT MADE)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J. Butterworth, Counsel instructed by Zahra and Co, Solicitors.
For the Respondent: Mr Walker, Home Office Presenting Officer.

DECISION AND REASONS
Introduction

1. The appellant is a national of the Ukraine, born in 1976. He is from the Crimea, where his parents and brother live. He entered the United Kingdom in 1997 and unsuccessfully claimed asylum. In 2011 he was encountered using a passport which did not belong to him in order to obtain employment. He was subsequently sentenced to 6 months imprisonment for this. His removal was stayed following an application for leave to remain. The basis of the application initially was the length of residence here and then also because of his relationship with a Ms Rosie Chambers.

2. His application was refused in March 2015. It was considered under paragraph 276 ADE of the immigration rules. As he had not been here the necessary 20 years his meeting the rule turned on whether there would be very significant obstacles to his reintegration into his home country. The respondent concluded he could return.

3. It was accepted that he was in a genuine and subsisting relationship with Ms Chambers. He did not meet the suitability requirements in appendix FM on the basis it was conducive to the public good to exclude him from the United Kingdom because of conduct, as evidenced by his conviction. His partner came to the United Kingdom as a student in 2001 and was granted indefinite leave to remain on 28 April 2011. She became a nationalised British citizen on 14 August 2012. The issue arising was section EX 1, namely, whether there would be insurmountable obstacles to family life between the couple continuing outside the United Kingdom. The respondent concluded not.

4. No exceptional circumstances were identified which would justify the grant of leave outside the rules.

The First tier Tribunal

5. The appellant's appeal was heard by Judge Hanbury of the First Tier Tribunal. An expert report had been obtained on his behalf as to the situation in the Ukraine and in particular in Crimea. The judge accepted that the appellant might face significant difficulties in obtaining travel documentation. The judge concluded that whilst he should be able to get into the Ukraine he may not be able to return to his home area in the Crimea and he could face problems because of his Tartar surname. The judge found that his partner would face even more significant difficulties. She had never been to the Ukraine and Russia could be hostile to her British nationality. Furthermore, her Muslim faith would be unlikely to assist in her integration. The judge found matters to be evenly balanced but nevertheless dismissed the appeal.

The Upper Tribunal.

6. Permission to appeal to the Upper Tribunal was granted on the basis the judge arguably failed to give sufficient weight to the expert report in relation to obstacles faced by the couple in maintaining family life. In particular, the report indicated that his partner might only obtain temporary admission. The judge had also referred to his partner `reintegrating' and it was arguable that the judge misunderstood her status in that she was not from the Ukraine. The respondent responded by way of a rule 24 statement opposing the appeal and submitting that the appellant could return to a different part of the Ukraine with his partner.

7. At hearing the focus was upon EX 1. Mr Butterworth referred me to the respondents IDI on applying EX1.He emphasised the fact that the exception focused not only upon an applicant but also upon their partner's situation. I was directed to the specific reference in the guidance to their ability to enter and remain lawfully in the proposed country and the existence of any cultural barriers. I was referred to paragraph 22 of the decision whereby the judge accepted the expert opinion that the appellant would face difficulties obtaining the necessary passport and that his partner was likely to find cultural assimilation in Ukraine extremely challenging. I was then referred to page 14 of the expert report where reference was made to the deteriorating relations between Russia and Kazakhstan and the United Kingdom and the conclusion that an ethnic Kazakhstan and who was a British citizen would be unlikely to be granted more than a temporary visit visa for the Crimea or elsewhere in the Ukraine.

8. Mr Butterworth accepted that there was a high threshold to meet EX.1. I was then referred to paragraphs 23 and 24 of the decision. The judge referred to the couple having no children. There is mention of the appellant having family members in the Ukraine. There was also mention of his ties to that country. Reference was made to his private life in the United Kingdom which was established in the knowledge his right to be here was either illegal or precarious. At paragraph 24 the judge concluded the difficulties facing the appellant to obtain a passport were unlikely to be insurmountable and that he could continue his family life with partner in some part of the Ukraine. Consequently the judge concluded that the obstacles whilst challenging were not insurmountable.

9. Mr Butterworth argued that these two paragraphs indicated the judge was conflating the balancing exercise engaged in an article 8 evaluation with what was required for an EX 1 assessment. Paragraphs 23 and 24 were focused upon the appellant and inadequate consideration was given to his partner's situation. There was reference to them having no children. This was not relevant to the EX1 issue of ongoing enjoyment of the relationship between the appellant and his partner in another country. He submitted that the reference to the appellant's family members did not assist in the evaluation of his partner's situation. The same applied to the focus upon the appellant's ties with Ukraine but not his partners. There is reference to his employment with no consideration given to his partner's. There was no reference to the expert conclusion that his partner could only obtain entry for a limited time.

10. Mr Walker conceded that the paragraphs referred to suggested that Judge Hanbury had conflated the issues arising in EX1 with the test applicable in an article 8 assessment. The judge had acknowledged the difficulties his partner would face but the focus was upon the appellant's situation.

11. Both parties were in agreement that the reference to his partner's reintegration to the Ukraine when read in context was more likely to have been a slip rather than the judge incorrectly believing she had ties with that country.

Consideration

12. I am grateful to both representatives for the way in which the appeal has been presented and the focus on the central issue.

13. I do find merit in the arguments advanced by Mr Butterworth in relation to EX1. The provision is directed towards the enjoyment of family life and whether that can continue outside the United Kingdom. The reference to insurmountable obstacles is indicative of the high threshold involved. This is referred to in the guidance at page 26 as being different and requiring a more stringent assessment than whether it would be reasonable to expect a partner to join an applicant overseas. Examples are given of a British partner with family here; who works here; who speaks only English; not wishing to uproot themselves to travel to a country they are unfamiliar with. The guidance refers to such a situation, where there may be a significant degree of hardship or inconvenience, but suggested this would not amount to insurmountable obstacles.

14. The assessment requires focus upon the proposed country of return. A material change in the quality of life such as accommodation or employment would not usually amount to an insurmountable obstacle. In the context of this threshold the guidance does identified specific factors of relevance. One of these is the ability to stay in another country. There is also reference to cultural barriers but again in the context of a high threshold. The example given is of a same-sex couple with the prospect of substantial social discrimination.

15. The expert report is highly relevant. The judge accepted the content of the report and Mr Walker has not sought to raise any issues in relation to it. The report highlights what is described as the Crimean crisis and its effect upon citizenship. The appellant as a tartar from Crimea would face difficulties in obtaining documentation. However, the greatest difficulty relates to his partner and there is reference at page 14 to her only being able to obtain a temporary visa. The respondent's guidance refers to the ability to stay in another country: it is difficult to see how family life could continue and grow when one partner has only a temporary status in the country.

Error of law

16. Considering the decision in its entirety it is my conclusion that Judge Hanbury materially erred in law in the assessment of EX1. This is because the judge's focus was upon the situation of the appellant and that inadequate consideration was not given to his partner. This is particularly so in light of the expert report which was accepted and the evidence in relation to her gaining only a limited right to reside and difficulties she would encounter with integration. The reasoning is largely contained at paragraph 23 and refers to factors more relevant to a proportionality assessment under article 8 at the expense of focusing upon the situation of the appellant and his partner. As the application of EX1 is central to the appeal the decision cannot stand.

Remaking the decision

17. Both parties were in agreement that if I found a material error of law there was sufficient evidence in the papers for me to remake the decision. Bearing in mind the undisputed expert evidence and the comments about the appellant's partner I find that the appellant benefits from EX1. This is primarily because the accepted family life could not continue outside the United Kingdom bearing in mind the situation of the appellant's partner. Consequently, I would remake the decision allowing the appeal on this basis.

18. Because I have allowed the appeal under the rules it is not necessary to consider whether a freestanding article 8 assessment was appropriate. This was not argued but for completeness I find paragraph 26 of the decision is unclear: it suggests Judge Hanbury did not feel the circumstances were such that a freestanding article 8 assessment was justified. Alternatively, it could be read as indicating that the judge concluded the decision was proportionate and no breach occurred.

19. There are features which would justify a freestanding assessment. Family life having been accepted there are issues arising from the fact the appellant has now been here 19 years; the situation in the Ukraine and the circumstances of his partner. In terms of proportionality both have a command of English and the appellant's partner is a high earner,

Decision.

The decision of First-tier Tribunal Judge Hanbury contains a material error of law and is set aside. The decision is remade allowing the appeal under the immigration rules.

Deputy Upper Tribunal Judge Farrelly.

Fee Order

The appellant's representative has not sought a fee order. In any event I do not feel such an order would be appropriate given that the appeal has succeeded on the basis of additional information provided, principally the expert report and the arguments advanced.

Deputy Upper Tribunal Judge Farrelly.