Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13883/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22nd September 2016
On 5th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

mr pratikkumar [p]
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr D Sellwood, Counsel instructed by Rashid & Rashid Solicitors
For the Respondent: Mr K Norton, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, a citizen of India, appealed to the First-tier Tribunal against the decision of the Respondent dated 25th March 2015 to remove him from the UK on the basis that his removal would breach his rights under Article 8 of the European Convention on Human rights. His appeal was dismissed by First-tier Tribunal Judge Fletcher- Hill and the Appellant now appeals with permission to this Tribunal.
2. The background to this appeal is that the Appellant claims to have entered the UK lawfully on 4th September 2009 as a student with leave to remain until 19th April 2011. His leave to remain was subsequently extended until 2nd May 2014 and again, after a period of curtailment, until 30th March 2015 as a student. That leave was curtailed on 5th December 2014 until 8th February 2015. On 5th February 2015 the Appellant submitted an application for further leave to remain in the UK on the basis of a private life under Article 8 of the ECHR.
3. In the documents submitted to the First-tier Tribunal Judge it was claimed that the Appellant now has a partner but it was conceded that she was not a UK citizen nor settled in the UK so the Appellant could not succeed on that basis. The partner made a statement which was in the Appellant's bundle but the judge noted that she was unable to appear in court to give oral evidence because of her unclear health status and ongoing treatment for active Tuberculosis. The judge noted that at the time of the application made on 5th February 2015 the Appellant was not living with his partner nor had he mentioned his partner in his Grounds of Appeal on 8th May 2015.
4. The judge found that it had not been established that the Appellant had family life with his claimed partner for the purposes of Article 8. However she went on to find that the Appellant had established a private life and having considered the issue of proportionality she concluded that there were no insurmountable obstacles to the Appellant enjoying private life in India where his claimed partner could return as well. The judge considered Section 117 of the Nationality, Immigration and Asylum Act 2002 and concluded that any interference to the Appellant's private life would be proportionate to the Respondent's legitimate aim of the maintenance of a fair and effective immigration control.
Error of Law
5. There are three grounds put forward by the Appellant in his Grounds of Appeal to the Upper Tribunal. Firstly it is contended that the judge failed to adequately consider paragraph 276ADE(1)(vi) of the Immigration Rules. In the second ground the Appellant contends that the judge erred in failing to consider whether the Appellant had "no ties" to India. The third ground is that the judge erred in her assessment of Article 8 in relation to private and family life.
6. At the hearing before me Mr Sellwood accepted that the second ground was not arguable as the test in the version of paragraph 2676ADE (1) (vi) of the Immigration Rules in force at the time of the hearing was not whether the Appellant could establish that he had "no ties "to India but whether there were "very significant obstacles" to him integrating there.
7. In relation to the third ground Mr Sellwood submitted that the judge made a factual error in his finding at paragraph 47; "I find no evidence has been produced to show that there is any relationship between the Appellant and his claimed partner". Mr Norton accepted that this sentence does stand at odds with what the judge recorded earlier but submitted that he in the context of the whole of paragraph 47 this sentence is not fatal or determinative of the judge's approach to the evidence in this case.
8. Mr Sellwood submitted that the judge was not willing to have the Appellant's partner in the courtroom because of the question as to her medical condition and as to whether the TB that she suffers from was active. I asked Mr Sellwood whether an adjournment had been requested so that further evidence could be obtained to clarify this or to enable the Appellant's partner to give evidence and he said that it had not. In my view it is difficult for the Appellant to now argue that the judge did not give sufficient weight to the Appellant's relationship when the judge had not heard oral evidence from his claimed partner. Although it is alleged that the judge refused to allow the Appellant's partner to give oral evidence because of her health status there is no allegation of procedural unfairness and no application was made for an adjournment to seek clarity on her health status or to enable her to give oral evidence at a resumed hearing.
9. Mr Sellwood submitted that the judge had to consider the Appellant's partner's witness statements and he also had before him photographs, payslips and medical reports relating to her and he submitted that, had the judge undertaken a proper assessment of this evidence, she could have concluded that there was a relationship such as to bring the Appellant within family life under Article 8 and that had this decision been made it could have had an impact on proportionality.
10. However I note that the judge set out the Appellant's answers in cross-examination about the relationship, in particular the fact that the Appellant's partner came to the UK with leave to remain as a spouse and that her leave to remain had either ended or was coming to an end [22-26]. The judge noted at paragraph 33 that it had been accepted in submissions, on the Appellant's behalf, that he could not succeed under the Rules as a partner because of the relatively short period that they had been living together. At paragraph 38 it was noted that it was accepted that the photographs submitted in the Appellant's bundle are "necessarily self serving".
11. Although in the first sentence of paragraph 47 the judge said that there was no evidence to show that there was a relationship between the Appellant and his claimed partner, she did go on to consider the evidence before her. The judge noted that there was no mention of a relationship in the Appellant's application made in February 2015 or in the Grounds of Appeal of May 2015 despite his current claim to have been residing with her at that stage. The judge also noted that there was no evidence of the Appellant having notified the Home Office of a change of address even though he now claims to have moved in with his partner in February 2015. I therefore accept that the judge has given sufficient reasons for her finding that the Appellant had not established that he and his claimed partner have family life within Article 8.
12. It is contended in the first Ground of Appeal that the judge erred in failing to make findings in relation to paragraph 276ADE(1)(vi) of the Immigration Rules. Paragraph 276ADE(1) states as follows:

"276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. to S-LTR.4.4. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK."
13. The test therefore is whether there would be "very significant obstacles" to the Appellant's integration in India. I accept that in the findings and reasons section the judge did not, as she was required to, firstly consider the Immigration Rules, in particular paragraph 276ADE before going on to assess whether there were reasons to go on and consider Article 8 outside of the Rules. Case law such as the decision of the Upper Tribunal in R (on the application of Esther Ebun Oludoyi & Ors) v Secretary of State for the Home Department (Article 8 - MM (Lebanon) and Nagre) IJR [2014] UKUT 00539 (IAC) has established that in approaching human rights and Article 8, before going on to consider Article 8 outside of the Rules, a judge should look at the evidence to see if there is anything which has not already been adequately considered in the context of the Immigration Rules and which could lead to a successful Article 8 claim.
14. Whilst Mr Sellwood submitted that the Appellant had lost out by the judge's omission of the first stage I do not accept that the Appellant was prejudiced by this because the judge considered all relevant issues in her assessment of Article 8.
15. I find that it is obvious from paragraphs 6 to 13 that the judge was aware of the issues to be considered. It is clear from the submissions made that these issues were put to the judge, for example at paragraphs 37 and 54 (albeit in the context of proportionality under Article 8) that the judge considered whether or not there were 'insurmountable obstacles' to the Appellant integrating in India. The judge set out the reasons in paragraph 54 why she had considered that the Appellant had not established that he was in a relationship with his claimed partner and in any event he noted that she is likely to return to India where it is open to the parties to continue with their friendship if they choose to do so.
16. Given that the judge had not accepted that the couple have a family life within the context of Article 8, it is reasonable that the judge did not go on to consider a claim from the Appellant and his claimed partner that they would have difficulties in India as a result of their relationship. In his witness statement dated 4th December 2015 the Appellant says that their families have not accepted their relationship and that, as a result, the couple may suffer persecution from their families. However in her witness statement of the same date the Appellant's partner does not mention any potential difficulties simply saying that if they returned to India they would be separated and would not be able to live a peaceful life together. However this evidence is of limited weight in the context of the judge's doubts about the relationship and the judge's finding that it had not been established that there was a family life.
17. Mr Sellwood submitted that a further factor was the Appellant's partner's ill-health. However it is not clear from the medical evidence submitted to the First-tier Tribunal what the effect of return to India would have upon the Appellant's partner's health and in any event again the judge did not accept that the relationship had been as described.
18. Whilst the judge erred in her approach to Article 8 by failing to engage with paragraph 276ADE (1) (vi), the only provision of the Immigration Rules likely to be applicable to the Appellant's appeal, I am satisfied that this is not a material error because the judge addressed the same test as that set out in 276ADE (1) (vi) at paragraph 54 of the decision in the course of her assessment of proportionality. In light of her findings there, even had she separately considered paragraph 276ADE (1) (vi), she would have reached the same conclusion as those reached at paragraph 54, that is that there are no insurmountable obstacles to the Appellant's reintegration in India. This was a conclusion open to the judge on the evidence before her.
Notice of Decision

There is no material error in the decision of the First-tier Tribunal.
The decision of the First-tier Tribunal shall therefore stand.

No anonymity direction is made.

Signed Date: 4 October 2016

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 4 October 2016

Deputy Upper Tribunal Judge Grimes