Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA /13402/2012

THE IMMIGRATION ACTS

Heard at Bradford
Determination Sent
On 11 April 2013

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

AHINA SEHAR KHAN
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr T Hussain, instructed by Kabir Ahmed & Co Solicitors
For the Respondent: Mrs R Pettersen, a Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. 1. The appellant, Hina Sehar Khan, was born on 6 March 1982 and is a female citizen of Pakistan. The appellant had appealed against the decision of the respondent dated 28 May 2012 to refuse her leave to remain in the United Kingdom on the basis that to remove her from the United Kingdom would not breach Article 8 ECHR. Her appeal to the First-tier Tribunal (Judge Sarsfield) was dismissed in a determination promulgated on 1 August 2012. The appellant now appeals, with permission, to the Upper Tribunal.
2. The appellant suffers from rheumatoid arthritis and self-administers weekly injections. She first came to the United Kingdom as a student in October 2003. Her leave was extended until December 2008 when it expired. An application for further leave to remain as a student was made in early 2009 but that application was refused. The appellant continued to study in the United Kingdom until June 2009 and then withdrew from her studies because of her medical condition. She was served with a notice of her liability to be removed on 7 September 2009. She went through an Islamic marriage on 2 October 2010 and subsequently contracted a civil marriage with her husband on 26 March 2012. She now seeks to remain in the United Kingdom and prevent her removal to Pakistan on the basis of her family and private life in this country.
3. I find that Judge Sarsfield’s determination should be set aside for legal error. Paragraphs 11-18 of the determination (which is only 22 paragraphs long) are what may be referred to as “standard paragraphs” setting out familiar jurisprudence but making little, if any, attempt to apply that jurisprudence to the facts which the judge had found. It is asserted that the judge made errors of fact in the findings at [9] and, whilst many of the findings and observations may be valid and based on the evidence that had been before the Tribunal, the actual analysis of the Article 8 ECHR appeal appears to consist of nothing more than what the judge says at [19]:
“In addition to my above findings, the appellant has known her situation was precarious for some time. Her mother could return with her to assist in Pakistan and her husband has agreed that he would go there if she returned. I find it would be reasonable for her husband to go to Pakistan with the appellant. If not, she can return and apply for a visa to re-enter the UK as any separation is unlikely to be long-term. I am aware that spouse visa applications are dealt with expeditiously in Pakistan – 88% in 40 days and 100% in 60 days, so any separation could be of limited nature. Contact with those in the UK can remain in the meantime.”
4. Not only is that attempt to apply the law to the facts in the appeal brusque, it is also confused. Where the judge finds that “her husband has agreed that he would go there if she returned. I find it would be reasonable for the husband to go to Pakistan with the appellant” the judge appears to have proceeded to reach his findings on basis of facts which was entirely contrary to what he had been told in oral evidence. At paragraph 5, the judge recorded that the appellant’s husband (Mr Daniel Butterworth) had told the Tribunal that he could “not go to Pakistan as he did not know the language, would not get a job, was employed as a care assistant and had his family in the UK. Even if it was to be on a short-term basis, he could not get sufficient leave.” The judge went on to record that, “If the appellant went to Pakistan to apply for entry, [Mr Butterworth] would support her. Even though the choice was to go with his wife to Pakistan or let her return alone, he would not let her go alone.”
5. At [5], the judge recorded Mr Butterworth as having said that he was not prepared to live permanently in Pakistan with his wife but would be prepared, if absolutely necessary, to return with her whilst she made an application for entry clearance. It is not at all clear whether the judge’s finding quoted at [4] above refers only to Mr Butterworth returning permanently with the appellant to Pakistan to continue family life there or a temporary visit whilst the appellant makes an application for entry clearance. I find the confusion surrounding that finding alone is sufficient to render the determination unsatisfactory. The judge needed to make an objective finding based on all the relevant evidence (i.e. not simply following what Mr Butterworth had told him in evidence) as to whether it would be reasonable for Mr Butterworth and the appellant to return permanently to live in Pakistan. Such a finding would have disposed of the Article 8 appeal without further consideration. If, on the other hand, the judge was referring only to temporary return to Pakistan whilst an entry clearance application is made, then I agree with Mr Hussain that, notwithstanding the fact that he has referred to Chikwamba at [18], he has not properly engaged with that authority or sought to apply its principles to the facts as he had found them in this case. Mr Hussain also told me that if the appellant made an application out of country for entry clearance, the United Kingdom sponsor would be required to earn no less than £18,600. Mr Butterworth does not earn that much and an application for entry clearance at the present time would be certain to fail.
6. Judge Sarsfield has failed to make any proper findings regarding the appellant’s immigration history and how this may affect the application of Chikwamba (see, in particular, [42] of Chikwamba). He has not taken any account of the likely outcome of an application for entry clearance succeeding. These are issues which the First-tier Tribunal should have considered but failed to consider in dismissing the appeal. The reasoning of the First-tier Tribunal is neither adequate nor cogent.
7. I set aside the determination of the First-tier Tribunal. Further, I consider that this is an appropriate case to be remitted to that Tribunal (not Judge Sarsfield) to make fresh findings of facts and to apply the relevant jurisprudence (including Chikwamba) to those findings.
DECISION
The determination of the First-tier Tribunal which was promulgated on 1 August 2012 is set aside. The appeal is remitted to the First-tier Tribunal to remake the decision.

Signed: Upper Tribunal Judge CLIVE LANE
Judge of the Upper Tribunal
Date: 30 May 2013