Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13093/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 September 2016
On 30 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

isuru nadeeshan wickrama arachchige
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Martin of Counsel instructed by Biruntha Solicitors
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS
Background
1. The appellant in this case is a citizen of Sri Lanka born on 16 April 1993. The appellant entered the UK on 19 September 2011, with entry clearance as a Tier 4 Student valid from 19 July 2011 until 6 September 2012. The appellant was granted an extension valid until 30 January 2015. On 30 January 2015 the appellant applied for further leave to remain as the spouse of a British citizen, [CJ]. The respondent refused that application on 16 March 2015. The appellant's appeal against that refusal was dismissed by Judge of the First-tier Tribunal Wright in a decision promulgated on 22 March 2016.
2. The appellant appeals with permission to the Upper Tribunal on the grounds that (1) the judge erred in his assessment of EX.1, and (2) that the judge erred in his consideration of Article 8 outside of the Immigration Rules.
Decision on Error of Law
3. Mr Martin submitted that the judge's consideration of EX.1 was contained solely in paragraph [35] of the decision despite the length of the decision. It was submitted that it was not sufficient to show that all the factors were considered and that appropriate weight had not been given. He submitted that it was not enough to say, as the judge had, that he was applying the guidance in the case of Agyarko & Others [2015] EWCA Civ 440. Mr Martin submitted that the appellant's case could be distinguished from Agyarko which was a judicial review and in which there had been very little evidence including a weak statement, whereas in this case the judge had heard evidence from all the family members. Looking at the appellant's wife, if she faced serious difficulties in relocating to Sri Lanka which could not be overcome that would be sufficient. It was Mr Martin's submission therefore that the judge needed to give greater consideration and it was insufficient to say as he had done that the appellant's wife was working in the UK and that she could work there or her husband could look after her.
4. Mr Martin submitted that the reality for the appellant's wife was that in this country she is very engaged including with her career as a hairdresser, but in Sri Lanka she could not progress if she could not speak to the customers in their language or read products. If she cannot do that and if her husband is at work it was submitted that she could not engage in life in Sri Lanka. It was his submission that these were arguably very significant difficulties and that there was not an adequate assessment by the judge.
5. In relation to ground 2 it was submitted that the judge's assessment of Section 117B was inadequate and it was argued that the judge had failed to give weight to the positive factors, for example there was no suggestion that the appellant is anything other than fluent in English or a burden on taxpayers and that the weight given by the judge at [44] was only in relation to negative factors.
6. Mr Martin relied on the case of Hayat [2012] EWCA Civ 1054. He indicated that this was in the skeleton before the First-tier Tribunal and the judge failed to address this issue. At paragraph 46 the judge addresses the Chikwamba point and relies on the case of Chen v SSHD IJR [2015] UKUT 00189 (IAC). However Mr Martin submitted that as with Agyarko, the case of Chen had been a judicial review whereas the case of Hayat was a live appeal and the court set out in Hayat how Tribunals should apply the Chikwamba guidance and that they should focus on distinguishing between those lawfully here (as was the case of this appellant) and those not; and secondly that the respondent should identify a reason why someone should have to jump through the entry clearance hoop.
7. Mr Martin further submitted that there were no findings in relation to the wider Article 8 issues including the impact of the decision on Mr and Mrs [J], the appellant's parents-in-law, and the impact of her departure which Mr Martin submitted lent weight to the Article 8 assessment.
8. Ms Fijiwala relied on the respondent's Rule 24 response. It was her submission that the judge had properly considered that the appellant's wife is British, had lived here and has two jobs and also referred in paragraph [35] of his decision to the fact that the appellant's wife mainly pursues a hairdressing career. She submitted that the judge was entitled to find that there were no insurmountable obstacles to the appellant and his wife relocating to Sri Lanka. She further submitted that the judge's determination must be read as a whole and at [44] the judge had considered relevant factors including that the appellant had family in Sri Lanka and that although the appellant's wife had been caring for her mother she had the support of her husband and her adult son in the UK and that the partner's mother's health was now a lot better.
9. Ms Fijiwala pointed to paragraph [15] of the decision where the judge had considered that the appellant and her partner had previously rented accommodation which would be a relevant consideration for the return to Sri Lanka. In addition, at [43], it was recorded that the appellant's wife said she was prepared to go to Sri Lanka. At [45] the judge took into consideration that neither the appellant nor his partner are suffering from any medical conditions.
10. Ms Fijiwala relied on paragraphs 21 to 25 of Agyarko & Others [2015] EWCA Civ 440 (above). Paragraphs 21 to 25 set out that insurmountable obstacles is a high hurdle and that a fact sensitive approach has to be taken. She submitted that the judge had undertaken such a fact sensitive approach and had made sustainable findings. Although Mr Martin had relied on the fact that the case of Agyarko had little evidence which was distinguishable from this case, it was submitted that the judge assessed the evidence in this case. Ms Fijiwala also relied on the case of Wasif [2016] EWCA Civ 82. In particular paragraph 60 refers to the fact that someone could not speak the relevant language would fall "far short" of constituting an insurmountable obstacle to relocation. At paragraph 61 of Wasif the Court of Appeal indicated that Agyarko established the stringency of the insurmountable obstacles test and that no special features, about the circumstances or background of that appellant took the case out of the ordinary, had been identified. Ms Fijiwala submitted that there were no special features in this appellant's case. Any alleged error was therefore not material.
11. In relation to ground 2, Ms Fijiwala submitted that the judge was correct in his approach in finding that there were no compelling circumstances and applying SS (Congo) & Others [2015] EWCA Civ 387 and Ms Fijiwala relied on paragraphs 33 and 34 of SS (Congo).
12. However the judge went on in the alternative to consider Article 8 and Ms Fijiwala submitted that the judge was entitled to take into account the issue of entry clearance and the judge quoted from Chen (above) at paragraph 46 of his decision. Temporary separation is not disproportionate and the judge had taken into account that there was evidence that the application would take four to six weeks and that the appellant's wife could get two weeks off work. There was nothing irrational about that finding. In relation to Hayat Ms Fijiwala submitted that the judge had to take into account all the factors, not just policy reasons, and in any event the judge had found that family life could continue in Sri Lanka and that there were no insurmountable obstacles under EX.1.
13. In respect of Agyarko, paragraph 31, Ms Fijiwala acknowledged that where there are no insurmountable obstacles it is possible to succeed. However, such a case would need to establish exceptional circumstances and Ms Fijiwala submitted that given that the judge found that there were no compelling circumstances, that were not sufficiently recognised under the Rules, to warrant consideration outside Article 8, it was clear the judge was not satisfied that there were exceptional circumstances. At paragraphs 29 and 30 Agyarko the fact that there is not insurmountable obstacles does not mean that a case cannot be exceptional. The court found that there is a gap between EX.1 of Appendix FM and what Article 8 might require in some cases but this does not mean that the issue of insurmountable obstacles to relocation drops out of the picture where there is reliance on Article 8 and that the issue of insurmountable obstacles is a material fact to be taken into account which the judge properly did in Ms Fijiwala's submission at [42].
14. Ms Fijiwala relied on the recent Court of Appeal of Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803 which sets out at paragraphs 61 to 65 confirmation that at best factors in an appellant's favour can only be neutral factors. In addition Ms Fijiwala pointed out that Rhuppiah, at paragraph 65, found that financial independence means independence not just of the state but of others and that the appellant in this case was not independent financially as he was dependent on his wife.
15. Ms Fijiwala relied on Rajendran (Section 117B - family life) [2016] UKUT 138 where it was confirmed that it is an established feature of Article 8 jurisprudence that precariousness is a criterion of relevance to family life as well as private life cases. Although the "little weight" provisions of Section 117B(4)(a) and (5) of the Nationality, Immigration and Asylum Act 2002 are confined to private life, this does not mean that when answering the public interest question a court of Tribunal should disregard "precarious family life"and given that the provisions of Section 117 are not exhaustive in certain cases it may be an error of law for a Tribunal to disregard relevant public interest considerations. It was Ms Fijiwala's submission that the judge had taken into consideration that the appellant had originally arrived in the UK for a temporary purpose and it was clear that his status had been precarious, as set out in the judge's findings at [42]. It was submitted that for all these factors there was no error in the judge's approach.
16. Mr Martin submitted that there was a danger in reading in the judge's findings under Article 8 to his decision under EX.1 as different questions were addressed. Under paragraph EX.1 the judge was considering the couple moving to Sri Lanka permanently whereas Article 8 was concerned with a temporary stay. Mr Martin argued that it was not enough to point to Wasif and say that a court considered a fact in a certain way. It is clear that these cases are fact sensitive and just because another party may have been in a position to learn the language that does not mean it is the same for this appellant. He submitted that there was no consideration of the implications for the appellant of moving to Sri Lanka for the rest of her life. Whilst obstacles might over time be overcome Mr Martin reminded that EX.2 does not require its literal meaning but it is a case of looking to see if there are very serious hardships or a very real difficulty for an appellant. In relation to Hayat the respondent must point to sensible reasons for requiring entry clearance and it was submitted that the judge had not provided these reasons.
Ground 1
17. The judge was not satisfied that there were insurmountable obstacles to family life with the appellant's partner outside the UK in Sri Lanka and the judge took into consideration, at [35] that this was the case despite the fact that the appellant's wife is a British citizen, had lived in the UK all her life, was living with her parents along with the appellant and was in two jobs, namely pursuing a hairdressing career.
18. The judge also applied the jurisprudence in Agyarko (above) (as discussed in detail in the submissions from the representatives). The judge set out that insurmountable obstacles means the "very significant difficulties which would be faced by the applicant or their partner in continuing their family life outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner". It is evident therefore that the judge had in mind the relevant test and had taken into account all the factors.
19. That those factors are not set out in detail at paragraph 35 is not a material error in the judge's decision. Read in its entirety, the judge had regard to all the relevant factors and the obstacles which would be faced by the appellant and his partner if they had to relocate to Sri Lanka. I am satisfied that the judge had in mind the potential implications for the appellant, his partner and their families, of relocation to Sri Lanka
20. Although Mr Martin submitted that there was a danger in reading across the judge's findings made in the context of his alternative Article 8 decision, as those findings were made only in the context of a temporary stay in Sri Lanka, I am not satisfied that this is the case. Although the judge did consider, in his Article 8 reasons, the proportionality of the appellant returning to make entry clearance, he also considered a more permanent move including finding at paragraph [42] that there was no evidence to show that the appellant, for example, could not set up his business in Sri Lanka as opposed to in the UK. It is not the case that the findings in relation to Article 8 were confined to a temporary stay therefore and these include findings in relation to the appellant's partner's mother and the fact that she continues to have the support of her husband and her adult son in the UK. This is relevant not just to a temporary stay in Sri Lanka but to a permanent move by her daughter. The judge considered, at [44], that the appellant would have the support of his family in Sri Lanka and found that the appellant's claim that his father had difficulties in Sri Lanka was not established. Again this is relevant not just to a temporary return to Sri Lanka but a permanent move. The judge also considered that the couple could keep in contact if the appellant's wife now chose not to return to Sri Lanka. The judge took into consideration at [43] that the appellant's partner had admitted that she would be prepared to go to Sri Lanka although the judge noted this was contrary to the appellant's evidence.
21. I am not satisfied therefore that any material error has been disclosed in the judge's consideration of EX.2 of Appendix FM and whether there were insurmountable obstacles. In any event, even if the judge erred in not providing further reasons at [35], such an error would be material given that I am satisfied that read as a whole his decision discloses cogent reasons for not being satisfied in this particular case, that there were insurmountable obstacles to relocation to Sri Lanka.
22. The fact that the judge did not make a specific finding in relation to language is not a material error when considered in the context of all the findings, including that the appellant's partner had at one stage been prepared to go to Sri Lanka, and the relevant jurisprudence.
23. I am not satisfied that any material error is disclosed in ground 1.
Ground 2
24. The judge was entitled to find as he did at [40] that there were no compelling circumstances in this case not sufficiently recognised under the Immigration Rules and the judge relied on Sunassee [2015] EWHC 1604 including that where there are no such circumstances it will be sufficient for a decision maker to say so. In addition there was no error in the judge's reliance on the principle, also expressed at paragraph 33 of Sunassee, that the failure to qualify under the Rules will tend to suggest that the public interest requires refusal of leave to vary, unless some countervailing factors are present which are not already taken into account under the Rules. Where there are no compelling circumstances justifying such a consideration, the appeal could not be properly allowed and any claimed subsequent error by the judge in his alternative consideration of the appellant's case under Article 8 cannot be material.
25. I am not satisfied in any event that the judge's approach to Article 8, in his alternative findings, disclosed any material error. The judge was entitled to be satisfied as he was that it was not disproportionate to require the appellant to return, for the reasons he gave from [42] to [46]. The judge also properly took into account as part of the proportionality balance, that it was a material factor that there were no insurmountable obstacles to relocation.
26. There was no error in the judge's approach to Section 117B and I am bound by the Court of Appeal's decision in Rhuppiah (above) that the most that can be said for factors such as the appellant's ability to speak English, was that these are neutral factors. There is no error in the judge not mentioning factors as positive weight tor for the appellant. Indeed, if he had done so, this may well have constituted a material error. Equally, the judge was entitled, in the wider public interest assessment not confined to the factors in Section 117B, to give weight to the fact that the appellant was only in the UK for a temporary purpose and that he came here with the intention of returning to Sri Lanka to set up his own business. The judge was entitled to consider as he did that this was a precarious family life case (Rajendran (above) applied).
27. Although it might be found in exceptional cases that an Article 8 case outside the immigration rules could succeed even where there are no insurmountable obstacles and that a gap exists, the judge made no error in not finding this to be such an exceptional case including finding as he did that there were no compelling circumstances.
28. There was no error in the Tribunal's approach to the Chikwamba point. The judge relied on the Tribunal's guidance in Chen (above) considered the court of Appeal in Hayat in some detail:
'Mr Palmer relied upon para 30c) and d) of Hayat to suggest that there must be a 'sensible reason' to require an individual to make an application for entry clearance from abroad. I reject the submission. I do not accept that, in using the phrase 'sensible reason', Elias LJ was setting out the test for applying the guidance in Chikwamba, not that he reversed the burden of proof. The burden remains upon the applicant to place before the Secretary of State all material that he or she relies upon to suggest that removal pursuant to the refusal of leave would breach Article 8 (Kotecha, at para 56).'
29. I similarly reject the argument that Hayat set out a test for applying Chikwamba, or that the burden of proof is reversed. The judge gave adequate reasons, including at [46] considering the short time for consideration of an entry clearance application, as to why in this case removal would not be disproportionate. There was nothing irrational in that approach.

Notice of Decision
30. I am not satisfied that the decision of Judge Wright discloses any material error of law. The decision shall stand. The appellant's appeal is dismissed.
Anonymity
No anonymity direction was sought or made and there were no reasons before me which would indicate that such a direction would be appropriate.

Signed Date: 29 September 2016

Deputy Upper Tribunal Judge Hutchinson

Fee Award
As the appeal is dismissed there can be no fee award.

Signed Date: 29 September 2016

Deputy Upper Tribunal Judge Hutchinson