Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14602/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 November 2016
On 21 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

mr bin wang
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Adewole, instructed by Liberty & Co Solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS
Background
1. The appellant in this case is a citizen of China born on 19 July 1968. The appellant applied for indefinite leave to remain on the basis that he is the spouse of a person present and settled in the UK and it was not disputed that his wife, previously a citizen of China, is now a British citizen having been granted citizenship on 20 November 2015. The respondent refused the appellant's application on 9 March 2015. It was raised and it was noted in the refusal letter that the appellant could not benefit from paragraph 319E of the Immigration Rules (indefinite leave to remain as a dependant of a points based migrant) as the appellant did not have leave as a Tier 1 dependant at the time he submitted the application and his spouse was not granted indefinite leave to remain as a Tier 1 Migrant. However the appellant's application was considered under the marriage Rules.
2. In a decision promulgated on 3 March 2016 Judge of the First-tier Tribunal Thanki dismissed the appellant's appeal under the Immigration Rules and under Article 8 ECHR.
3. The appellant appealed with permission from the Upper Tribunal on the basis that the judge arguably erred in law in his approach to and findings in respect of Article 8. At paragraph [50] the judge had found that the appellant's removal would breach Article 8 as it would be a disproportionate interference with his family life with his British citizen wife if he returned to China including doing so only to obtain entry clearance. However, at paragraph [55] having considered Section 117B, the judge then made an opposite finding, namely that removal would be proportionate and that finding appeared to be on the basis that "the requirements of Section 117B" were not met. Both the inconsistency in these findings and the judge's seeming consideration of Section 117B in isolation were arguable errors of law.
Error of law consideration
4. Mr Adewole relied on the grounds of permission. He relied on the fact that the judge had found that the appellant had established family life and that it would not be proportionate for the appellant to return to China and continue his family life with his British citizen wife. The judge also found that it would not be proportionate for the appellant to have to make an application to return to the UK. It was further submitted that it was wrong for the judge to refuse the appeal on the basis that the appellant could not meet the requirements of the Immigration Rules. Mr Adewole also made submissions including that it was not in the public interest to require the appellant to make an application from abroad.
5. In his submissions Mr Avery conceded that the judge's decision was slightly baffling including his positive findings at paragraph [50] followed by his dismissal of the appeal. The judge's findings had started off by looking at the Immigration Rules but, as I indicated at the hearing, he had failed to make any specific findings in the body of his determination under the Immigration Rules. His findings then morphed into an Article 8 consideration outside of the Immigration Rules.
6. I am satisfied that the judge's findings disclose a material error of law such that the opposing conclusions he reached in relation to Article 8 were irrational. I therefore set aside his decision in its entirety.
Re-making the Decision
7. I indicated at the hearing that I would re-make the decision. Mr Adewole confirmed that there were no changes of circumstances in this case and both parties indicated that they were happy to proceed on the day. Mr Adewole also confirmed that no oral evidence would be required and that he was relying on the papers already before the court.
8. The appellant had provided a bundle including his witness statement, a skeleton argument, the sponsor's witness statement and further documents in support which were not indexed but included, but not limited to, the decision by the respondent and the refusal letter together with a copy of the sponsor's British passport details, a copy of what would appear to be the couple's marriage certificate, although I note that this was not translated, and some further documents including the appellant's P60 and a contract of employment for the sponsor.
9. It was not disputed that the evidence recorded at the First-tier Tribunal included the appellant adopting his witness statement and confirming under cross-examination that he could not live in China as his wife now had British citizenship and had lived in the UK for over ten years. The appellant and his wife had married in China and had lived there for two years before the appellant's wife came to the UK. The appellant confirmed that he had worked previously part-time in the UK in a restaurant but was not currently in employment. The appellant confirmed in oral evidence that he had worked in China. The appellant's evidence was also recorded that he did not wish to return to China with his wife as this would take time for his application for settlement to be considered and he could not return on his own as he did not wish to be separated from his wife. The appellant confirmed that he had last visited China in June 2012 and had occasional contact with his family as did his wife.
10. The evidence before the First-tier Tribunal also records oral evidence from the appellant's wife, the sponsor, Ms Lachao Wang who adopted her witness statement and gave evidence in English. (The appellant gave evidence with the assistance of a Mandarin interpreter).
11. Ms Wang confirmed that she did not wish to be separated from her husband and did not wish to return to China so an appropriate application could be made there. Under Cross-examination she said she was now a British citizen and had demonstrated evidence of her British passport. It was confirmed that the couple did not have children. The sponsor gave evidence about visiting her mother in China in 2012 and also visiting the appellant's family. It was confirmed that the couple did not have any family in the UK. She also confirmed that her husband had previously worked but had stopped in April 2015. The sponsor stated that ever since she had come to the UK her husband had been her dependant and she had applied for indefinite leave to remain which was granted and then they had been advised they could apply for indefinite leave to remain for the appellant. The sponsor said that she had received university degrees in the UK and obtained citizenship and that the couple had never lived apart. It was also recorded that the sponsor became very distressed at the prospect of being separated from her husband when it was suggested that the appellant could return to make an application.
12. I have taken into consideration all the evidence including the evidence that was before the First-tier Tribunal and the written evidence and the submissions which were also recorded in the decision of Judge Thanki.
Findings and Reasons
13. The appellant is a citizen of China and has been in the UK as his wife's dependant since 2009. It was recorded and not disputed before me that the appellant's wife the sponsor had been in the UK for thirteen years, whereas the appellant has been in the UK for seven years. The respondent refused the appellant's application under Appendix FM as the appellant could not meet the requirements for indefinite leave to remain as a partner. It was also not disputed before me that the appellant could not meet the requirements for leave to remain as a partner under Appendix FM.
14. It was Mr Avery's submission that under Appendix FM EX.1(b) there are no insurmountable obstacles to family life with that partner continuing outside the UK.
"EX.1:
...
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK."
EX.2:
For the purposes of paragraph EX.1(b) 'insurmountable obstacles' means that very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome would entail very serious hardship for the applicant or their partner."
15. The respondent also considered that under paragraph 276ADE in relation to private life the appellant had lived some twenty years in the UK and it was found that he had ties including social, cultural or family with China. Therefore the respondent was satisfied that the appellant could relocate to China having lived there for the majority of his life.
16. I am not satisfied that it has been demonstrated that there are "insurmountable obstacles" to family life between the appellant and his partner continuing outside of the UK. I have taken into consideration all of the evidence including that the appellant has been in the UK for approximately seven years. I note that his wife has been in the UK for thirteen. The appellant's application indicates that the appellant and the sponsor met on 15 September 2007 in Shenyang China and that the couple began living together on 5 March 2008 which is also cited as the date of the couple's marriage in China. The appellant did not enter the UK as his wife's dependant until 22 March 2009. The couple would appear therefore to have lived apart at some point in the early part of their relationship. Even if they had not there was no adequate evidence before me as to what the insurmountable obstacles were to family life continuing outside the UK.
17. Although I accept that the sponsor has lived in the UK for some time and that she is now a British citizen, it is not disputed that she was born a citizen of China and lived there for a large part of her life (and I note that the appellant's application refers to the couple living together in a relationship from 5 March 2008 when they were married in China).
18. The sponsor is therefore culturally familiar with China. I have considered that the couple do not have any children. Although I accept that they both may have developed ties in the UK and that it may cause some inconvenience including for the sponsor to relocate her life, and I note that there was evidence of her employment in the UK (and it was submitted she only gets 28 days leave), I am not satisfied that that would constitute very significant difficulties even if the appellant's wife had to leave her employment and seek new employment in China (and I take into consideration that she will have added to her skills whilst in the UK). I note that the evidence confirmed that both the appellant and the sponsor are still in contact with their families in China and there was no adequate evidence to indicate that those families could not assist the appellant and the sponsor in re-establishing in China either temporarily whilst the appellant makes an application to return or permanently if that is what they decide to do.
19. I am not satisfied in all the circumstances that the appellant has discharged the burden of proof on him to demonstrate that there are insurmountable obstacles to family life continuing with his partner outside of the UK.
20. In the circumstances I am further not satisfied, applying the relevant case law including SS (Congo) [2015] EWCA Civ 387 and Agyarko and Others [2015] EWcA civ 449 that any circumstances have been identified that might be considered compelling enough to require a grant of leave to remain outside of the Immigration Rules. The facts, including that the couple might not want to be separated, even temporarily and that the sponsor has built a life in the UK and is now a British Citizen, are insufficient in my findings to constitute compelling reasons. A failure to meet the requirements of the Immigration Rules is a relevant factor to take into consideration. I am not satisfied that there has been any gap identified between section EX.1 and the requirements of Article 8. I am therefore not satisfied that consideration outside of the Immigration Rules is required.
21. I am satisfied that the assessment under the Immigration Rules provides a complete answer. The Court of Appeal in Sunassee [2015] EWHC 1604 confirmed:
'The law is that there is always a second stage, but where all relevant considerations have been weighed under the rules and there are no compelling circumstances not sufficiently recognised under the rules it will be enough for the decision maker to simply say 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.'
22. I am satisfied therefore that the appellant's appeal cannot succeed either under the Immigration Rules or otherwise.
Summary of Decision
23. The decision of the First-tier Tribunal discloses a material error of law such that the decision falls to be set aside. I re-make the decision dismissing the appellant's appeal.
No anonymity direction was sought or is appropriate in this case.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD
As I have dismissed the appellant's appeal there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Hutchinson