Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15181/2015

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 13th March 2017
On 12th April 2017

Before

DEPUTY upper tribunal JUDGE RENTON

Between

m b m
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Rahman, Counsel instructed by Heritage Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellant is a male citizen of Pakistan born on 5th March 1985. The Appellant first arrived in the UK on 5th August 2010 when he was given leave to enter as a student. That leave was subsequently curtailed on 18th June 2012 whereupon the Appellant unsuccessfully applied for asylum although his appeal against that refusal was allowed on human rights grounds and the Appellant was granted discretionary leave to remain until 19th March 2014. On 13th March 2014 the Appellant applied for leave to remain on the same basis. That application was refused for the reasons given in the Respondent’s letter of 7th April 2015. The Appellant appealed, and his appeal was heard at Stoke-on-Trent by First-tier Tribunal Judge Gurung-Thapa (the Judge) on 23rd May 2016. She decided to allow the appeal under the Immigration Rules and on human rights grounds for the reasons given in her Decision dated 12th June 2016. The Respondent sought leave to appeal that decision, and on 14th October 2016 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The brief background to the appeal is that on 21st December 2011 the Appellant had an Islamic marriage with a woman named DS. They had a daughter L born on 9th January 2013. The relationship with DS came to an end and eventually the Appellant married another woman named N on 7th July 2015. Her first husband had died in August 2014 and the Appellant had formed a relationship with her shortly thereafter. N had three children by her first marriage namely RU born in 2000, ZP born in 2001, and RH born in 2003.
4. The Judge allowed the appeal initially under the provisions of paragraph EX.1.(b) of Appendix FM of HC 395. The Judge found that the Appellant had a genuine and subsisting marriage to N who was in the UK and settled there, and the Appellant, his wife, and her children formed a family unit. She also found that there would be insurmountable obstacles to the Appellant’s family life with that unit continuing outside the UK.
5. In the grounds of application, it was argued that the Judge had erred in law in coming to this conclusion as she had failed to take account of the possibility of the Appellant returning to Pakistan and seeking entry clearance from there. Any break in his relationship with his family in the UK would only be temporary. The grounds also argued that the Judge had failed to apply the provisions of Section 117B Nationality, Immigration and Asylum Act 2002 when considering the Appellant’s Article 8 ECHR rights. At the hearing, Mr Mills was candid enough to say that he could not pursue the argument in ground 1 which to him was illogical. The Judge had allowed the appeal under paragraph EX.1.(b) on the basis of there being insurmountable obstacles to the Appellant continuing his family life elsewhere. This finding was not addressed in the first ground. The second ground had merit, but was immaterial as the appeal had been allowed under Appendix FM.
6. In response, Ms Rahman referred to her Rule 24 response and was content only to say that as the appeal had been allowed under Appendix FM, to which there had been no real challenge, all other arguments were immaterial.
7. I find no error of law in the decision of the Judge which I therefore do not set aside. The Judge’s finding in respect of paragraph EX.1.(b) is explained in paragraphs 36 and 37 of her Decision. It was never in dispute that the Appellant had a genuine and subsisting relationship with his wife, and the Judge has given sufficient cogent reasons, such as the circumstances of the Sponsor’s children, for her finding of insurmountable obstacles. The Appellant’s ability or otherwise to return to Pakistan and seek entry clearance there is not relevant. As Mr Mills said, the test for insurmountable obstacles is not a balancing exercise. I therefore find no error of law in the Judge’s decision in respect of paragraph EX.1.(b) of Appendix FM and as the appeal was allowed under that provision, there is no need for me to consider if there was any error of law in the Judge’s subsequent decision to allow the appeal under the provisions of Article 8 ECHR.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making or an error on a point of law.
I do not set aside that decision.
The appeal to the Upper Tribunal is dismissed.
Anonymity
The First-tier Tribunal made an order for anonymity which I continue for the reasons given by the First-tier Tribunal.
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 10th April 2017

Deputy Upper Tribunal Judge Renton