Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13521/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 27th September 2016
On 4th October 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL
GA BLACK

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mrs SAMREEN SADIQ
(ANONYMITY ORDER NOT MADE)
Claimant/Respondent

Representation:
For the Appellant: Mr K Norton (Home Office Presenting Officer)
For the Respondent: Mr Gondal (Counsel instructed by Berkshire Law Chambers)

DECISION AND REASONS
1. I shall refer to the parties as "the Secretary of State" who is the appellant before this Tribunal and to Mrs Sadiq as "the Claimant". The Secretary of State appeals a decision and reasons by First-tier Tribunal (Judge Gillespie) ("FTT") promulgated on 7th April 2016 in which the Claimant's appeal was allowed under the Partner rules and outside the rules.
First - tier decision
2. In a decision and reason the FTT found that the Claimant met the requirements of the Immigration Rules under Appendix FM with reference to financial requirements. The Secretary of State refused the application only on financial grounds and accepted that the Claimant met the Suitability and Eligibility requirements. The appeal before the FTT turned on the issue of finance. The FTT went on to consider EX1 as to insurmountable obstacles and found that the Claimant's husband was a British citizen with a well paid job and that her extended family were settled in the UK, was sufficient to meet the test under EX1. The FTT further considered Article 8 in the alternative.
Grounds of application
3. In grounds of application for permission the Secretary of State argued that the FTT erred in law by failing to take into account that the Claimant could not meet the Immigration rules because she failed to meet Eligibility requirements as she entered the UK as a visitor. Further that the FTT erred in law by concluding that the test for insurmountable obstacles was met, contrary to the decision of Agyarko & others (on the application of) v SSHD [2015] EWCA Civ 440. The Court held that a British citizen spouse with a job in the UK was not sufficient to meet the insurmountable obstacles test.
4. In the alternative the FTT found that Article 8 outside of the Rules was engaged on the grounds that the removal was a disproportionate interference with private and family life. The Secretary of State contended that this too amounted to an error in law by the FTT which failed to consider the existence of compelling circumstances outside of the Rules following SS (Congo) and failed to properly approach the issue of proportionality and take into account the public interest factors (Rajendran (s.117B - family life) [2016] UKUT 138 (IAC).
Permission
5. Permission was granted by FTJ Page on 30th August 2016 on the grounds settled. By allowing the appeal under Article 8 the FTT had effectively allowed the Claimant to circumvent the Immigration rules via the partner route under Appendix FM. The FTT had not set out factors which rendered the circumstances compelling nor not catered for in the Rules. The test for insurmountable obstacles was not met.
Rule 24 response 15.9.2016
6. The Claimant opposed the appeal and contended that the FTT made a lawful decision. New evidence was produced of medical records confirming the Claimant's pregnancy with a due date of 14.1.2017. Mr Norton had no objection to the new evidence being admitted.

Error of law hearing
Submissions
7. Mr Norton expanded on the grounds of application. Mr Norton submitted that the FTT failed to consider the Claimant's immigration status as a visitor, and she was not eligible to make an application under the partner route. There was no challenge to the FTT finding that the Claimant met the financial requirements. It was accepted that the Claimant could now make a new application outside of the rules on the basis of her pregnancy. Mr Norton confirmed that an out of country application could take any time from 2 - 6 months.
8. Mr Gondal submitted that the Secretary of State had not relied on the eligibility criteria in the refusal letter, indeed the letter stated that it was accepted that the Claimant met the Eligibility rules for the partner route. The FTT had not considered those issues and it would be unfair to raise it now. The Claimant entered the UK on two occasions as a visitor and then after making her application outside of the rules she married. She then made an application as a spouse. She was unable to return to Pakistan because she had previously suffered psychologically and self harmed. She was now vulnerable because of the pregnancy and needed the support of the sponsor and her family. The child, when born, would be a British Citizen.
9. At the end of the hearing I reserved my decision.
Discussion and decision
10. I find that there was a material error of law in the decision and reasons of the FTT. It appears that the Secretary of State had (wrongly) accepted in the refusal letter that the Claimant was eligible under the Partner rules, this was not in fact correct as she entered the UK as a visitor which precluded her from making an in country application as a spouse. Further more I find that the FTT erred in law by failing to follow SS(Congo) guidance in that there was no consideration of the existence of compelling circumstances outside of the rules and/or that the facts as found were capable of amounting to compelling circumstances or a disproportionate interference or that they met the test of insurmountable obstacles under EX 1 (Agyarko). I allow the appeal of the Secretary of State and set aside the decision and reasons save that the findings are preserved in terms of the financial evidence and the Claimant's psychological state in Pakistan.
Re making the decision
11. I have taken into account that the Claimant is now nearly 7 months into her pregnancy and that the baby is due to be born in January 2017. I accept that the Claimant is vulnerable; her credible evidence that she had self harmed in the past was accepted by the FTT. I find that the Claimant is not able to meet the Partner Rules as she entered the UK as a visitor and fails the Eligibility requirements and so EX 1 considerations are not relevant.
12. I am satisfied that there are compelling circumstances not catered for by the Rules which justify me considering Article 8 outside of the Rules (SS Congo [2015] EWCA CIV 387). The Claimant is a vulnerable person and she is now pregnant. A return to Pakistan at this stage of her pregnancy would be extremely unsettling and she has no supportive family in Pakistan and her isolated situation there previously led to her self harming. I take the view that her private and family interests outweigh the public interests. Having regard to section 117 public interest factors (Rajendran) I find that the Claimant speaks English, there are no concerns about finance as her husband is working and earning, and there is now an unborn child to be considered. They met and married at a time when the Claimant's immigration status was precarious but not unlawful and the circumstances then were such that she could have returned to Pakistan to make an out of country application and there would have been a short period of separation. In my view the fact of the pregnancy outweighs the public interest in maintaining fair and consistent immigration controls in this instance (R (on the application of Chen) v SSHD IJR 2015 UKUT 189 (IAC). Accordingly I find that Article 8 is engaged; the Claimant has established a family life in the UK, there would be an interference with that family life as the Claimant would be required to return to Pakistan where she has no close family and to a situation where she has harmed herself, and which would not be proportionate having regard to the public interest factors in the light of the fact that she is a vulnerable woman in the later stages of pregnancy. There are compelling circumstances such that there is no public interest justification for requiring the Claimant to return to Pakistan to make and out of country application.
Decision
13. I find an error of law. The FTT decision is set aside save for the preserved findings.
I remake the decision outside of the Rules under Article 8 and allow the appeal.

Signed Date 30.9.2016

GA Black
Deputy Judge of the Upper Tribunal

NO ANONYMITY ORDER
NO FEE AWARD

Signed Date 30.9.2016

GA Black
Deputy Judge of the Upper Tribunal