Tribunal decisions

The decision

IAC-fH-nl-V3

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/13807/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 August 2016
On 30 September 2016

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

irfan ali khan
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Khan, instructed by Adam Bernard Solicitors
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a national of Pakistan who appealed to a judge of the First-tier Tribunal against the respondent's decision of 26 March 2015 to remove him from the United Kingdom under Section 10 of the Immigration and Asylum Act 1999.

2. The appellant arrived in the United Kingdom on 8 February 2004 with entry clearance as a student. He was granted further periods of leave until an application for leave to remain under Article 8, made on 10 February 2012, was refused on 28 June 2013 and that refusal was maintained after reconsideration on 19 August 2014. He applied for leave to remain under Article 8 on 19 January 2015 and that application was refused on 26 March 2015.

3. The application was made on the basis of seeking leave to remain on account of his private life. He was not working. He had not been convicted of any criminal offences. He had siblings in Pakistan. It was said on his behalf that he had made many friends and had developed strong social ties in the United Kingdom since his arrival in 2004 and he was also actively contributing to the economy after he finished his studies. He had passed the requisite tests in knowledge of English and life in the United Kingdom.
4. The respondent refused his application on the basis that the grounds on which he had applied for leave to remain were not covered by the Immigration Rules and she was not satisfied that his circumstances were sufficiently compelling to justify a grant of indefinite leave to remain on an exceptional basis outside the Immigration Rules. He did not qualify for leave to remain on the basis of family life because he did not claim to have a partner or child in the United Kingdom. He did not qualify for leave to remain under paragraph 276ADE of HC395 on the basis of his private life because he had not lived in the United Kingdom for long enough and the respondent was not satisfied that there were any very significant obstacles to his integration into Pakistan if he returned there. He had lived there for 22 years previously and had his siblings there. It was not accepted that there were any exceptional circumstances which, consistent with his right to respect for his private and family life, warranted a grant of leave to remain outside the Immigration Rules.
5. The judge heard evidence and came to conclusions on it. He did not accept that the appellant's brothers and sisters had disowned him and excluded him from his family property. The reasons for this are set out in some detail at paragraph 34 of the decision. In the alternative if he had severed his ties with his immediate family he was of an age where he was old and mature enough to be able to settle in Pakistan without the need for family support and he had friends in the United Kingdom who had supported him here and who could provide for him again. No credible objective evidence had been provided to support the appellant's claim that he would have difficulties in finding employment in Pakistan. The claim was considered under paragraph 276ADE and the judge noted that the appellant had not lived in the United Kingdom long enough to qualify for leave to remain on the basis of the length of his residence in the United Kingdom. He was not satisfied that there were any very significant obstacles to the appellant's integration into society into Pakistan given that he had lived there until 2004 and was familiar with the way of life there and the language.
6. The judge said that he then turned to Article 8 outside the confines of the Immigration Rules. The real question in his view was whether removal in the interests of enforcing immigration control would be a proportionate interference with the appellant's private life. Although the appellant might prefer to stay in the United Kingdom and may have made a number of friends here, Article 8 did not give him a right to decide that he would enjoy private life here. His wishes had to be balanced against the public interest in enforcing immigration control. The judge noted the terms of section 117B of the Nationality, Immigration and Asylum Act 2002. The appellant had established his private life at a time when his right to remain in the United Kingdom was precarious and as a consequence little weight should be attached to that private life. He was young enough to be able to rebuild a private life for himself in Pakistan by finding employment there, resuming old friendships there and making new friendships there also. He could resume contact with his old friends in Pakistan and make new friends there and keep in touch with his friends that he had made in the United Kingdom. The fact that he spoke English was not a factor militating in his favour. His good character similarly was said to carry little weight. Although he had been in the United Kingdom for almost twelve years, he had been here illegally for over four years and should have returned to Pakistan before his last leave expired. The appeal was dismissed under Article 8.
7. The appellant sought and was granted permission to appeal on the basis that the judge had not referred to the existence of circumstances which would justify a consideration of whether there would be a breach of Article 8 outside the Rules and that it was arguable that the judge's failure to identify those circumstances which had implicitly been found to exist rendered the foundation of the proportionality exercise unsafe given the uncertainty arising as to the degree of weight attached to the unexpressed circumstances leading to a consideration of whether there would be a breach of Article 8 outside the Rules, set against the weight attached to the other factors referred to by the judge in carrying out the proportionality exercise.
8. Mr Khan argued that the judge had erred in law in failing to state, when going outside the Rules looking at Article 8, what factors had been considered in coming to that view. The error was material because those factors were not specified and the weight given to them was unclear as to whether or not they outweighed the public interest.
9. In his submissions Mr Duffy relied on the Rule 24 response. He argued that the grounds were simply attempts to reargue the case. Article 8 had been considered outside the Rules and nothing had been identified that the judge had not considered. The judge had adopted a belt and braces approach which was unnecessary but in doing so that could not be said to be a material error of law.
10. By way of reply Mr Khan argued that it was a question of the exercise of discretion and whether the proportionality exercise had been properly carried out and that was unclear and one could not be sure as to the judge's approach to proportionality.
11. I reserved my determination.
12. The essence of the challenge to the judge's decision, as argued by Mr Khan and encapsulated at ground 5, is that the judge in going on to consider Article 8 outside the Immigration Rules and conducting the assessment of proportionality must be taken to have accepted that there were compelling circumstances not sufficiently recognised under the Rules. In failing to explain what he found those to be or why he found them to be outweighed by the public interest it was impossible for the Tribunal to understand his reasoning. It was also argued that he had failed adequately to consider such matters as the amount of time the appellant had been in the United Kingdom, the changes to the Rules which might otherwise have enabled him to make an alternative Tier 4 application, the fact that he had been a generally law-abiding person, had not tried to work illegally or make a dishonest application on the basis of a sham marriage and had explained the family pressures contributing to his decision to remain in 2011.
13. I agree with Mr Duffy and the points made in the Rule 24 response. In essence what the judge appears to have done is to decide the matter outside the Rules on an alternative basis, although it is clear from his conclusions that the appeal could not succeed under the Rules and that conclusion was clearly a correct one. The appellant could not satisfy the requirements of paragraph 276ADE for the reasons given by the judge. As a consequence it was unnecessary for the judge to consider Article 8 outside the Rules and I agree with Mr Duffy that it must be the case as a consequence that there is no materiality to any error in that regard. But in any event if consideration outside the Rules had as such been necessary, it is perfectly sound. The judge took into account the relevant matters referred to in the grounds and in submissions and came to proper conclusions on them in the context of the evaluation that he was making. His decision cannot be said to be marred by a failure to identify what compelling circumstances existed that merited a consideration of the situation outside the Rules. What the judge had to say from paragraph 38 onwards was essentially irrelevant in light of his proper findings in respect of paragraph 276ADE. What he said taken on its own could not be said to amount to a failure to give a proper consideration to proportionality. Had that been a relevant issue, it was addressed perfectly properly in the course of those paragraphs. Accordingly, I find no error of law in the judge's decision and his conclusion dismissing the appeal is maintained.

Signed Date

Upper Tribunal Judge Allen