Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16050/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 6 March 2017
On: 9 March 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SACHIN CHAMUNDA
(ANONYMITY DIRECTION NOT MADE)
Respondent

For the Appellant: Mr Staunton (Senior Home Office Presenting Officer)
For the Respondent: Ms Rothwell (Counsel)

DECISION AND REASONS
1. The appellant (‘the SSHD’) has appealed against a decision of the First-tier Tribunal dated 15 May 2016 in which it allowed the respondent’s appeal on Article 8 grounds. The respondent (‘the claimant’) is married to a British citizen (‘the wife’) and on 25 February 2015 applied for leave to remain on the basis of this family life.
Grant of permission
2. The SSHD was granted permission to appeal against the decision of the First-tier Tribunal by First-tier Tribunal Judge Davies in a decision dated 30 November 2016. Although permission to appeal was granted for the reasons outlined at [2] of the decision, [3-5] contradict this by indicating that there is no arguable error of law in the decision.
3. Ms Rothwell argued in written submissions that the errors made in the decision granting permission could not be corrected. I indicated to Ms Rothwell that I could consider whether permission to appeal should be granted for myself and she agreed.
4. At the hearing before me, both representatives agreed that although the First-tier Tribunal grant of permission was contradictory, I was entitled to decide for myself whether the grounds advanced are arguable. After hearing from both representatives, I announced that there was a material error of law in the First-tier Tribunal decision. The First-tier Tribunal failed to consider whether there are ‘insurmountable obstacles’ to family life continuing outside the United Kingdom, and for this reason, permission to appeal is granted.
Hearing
5. Although the SSHD lodged the appeal I indicated that the grounds are self-explanatory and I therefore heard from Ms Rothwell in response to the grounds. She argued that when the decision is read as a whole, the First-tier Tribunal adequately considered the issue of ‘insurmountable obstacles’. I did not need to trouble Mr Staunton and announced that there was a material error of law in the decision, requiring it to be remade.
6. Both representatives agreed that the findings of fact should be preserved and there was no need for a further fact-finding exercise, as the parties’ circumstances are unchanged. In the circumstances the representatives agreed that the decision should be remade by me, having heard submissions only.
7. Mr Staunton relied upon the decision refusing leave and made no additional submissions. Ms Rothwell relied upon her skeleton argument and invited me to allow the appeal. At the end of the hearing I reserved my decision, which I now provide with reasons.
Error of law
8. It is clear that it was argued before the First-tier Tribunal that the claimant meets the requirements of EX.1(b) and EX.2 of the Immigration Rules [7]. This argument is set out in full in the skeleton argument available to the First-tier Tribunal. Yet the decision omits any analysis of the requirements of the Rules and proceeds directly to considering Article 8 outside the Rules [8]. It may be that since the decision post-dates 5 April 2015 the First-tier Tribunal considered that the Immigration Act 2014 applied, so as to restrict any analysis of human rights to outside the Immigration Rules, i.e. Article 8 only. Both representatives accepted that any Article 8 assessment, in a case such as this, would be incomplete with first assessing why the claimant could not meet the Rules. Whatever the reasoning for it, the First-tier Tribunal did not consider the issue in dispute before it relating to the application of EX.1, and in particular ‘insurmountable obstacles’. Although reference is made to “obstacles to such family life continuing in Tanzania” [8], the First-tier Tribunal has completely failed to apply EX.1(b) and EX.2 to the facts of this case.
9. This is a material error for two reasons. First, in assessing the strength of the public interest the First-tier Tribunal was obliged to take into account the failure to meet the requirements of the Rules. This has not been done.
10. Secondly, and perhaps more fundamentally, when assessing the proportionality of removal of non-settled migrants from a contracting state under Article 8, several factors must be considered including whether there are ‘insurmountable obstacles’ in the way of the family living in the country of origin of the non-national concerned – see R (Agyarko) v SSHD [2017] UKSC 11 at [42]. It is therefore plain that a consideration of ‘insurmountable obstacles’ is an indispensable aspect of both the analysis under the Rules and outside the Rules. In the latter case, it is but one factor to be considered of many, and is not determinative. As noted in Agyarko at [43 and 55] and MM (Lebanon) v SSHD [2017] UKSC 10 at [42-3], in Jeunesse v The Netherlands [2015] 45 EHRR 14, the court declined to find insurmountable obstacles [43] but nevertheless found that a fair balance had not been struck. Jeunesse of course involved children whereas the instant case does not.
Remaking the decision
Approach to evidence
11. As set out above both representatives agreed that I should remake the decision based on the factual findings reached by the First-tier Tribunal together with all the relevant evidence available to me.
12. The SSHD did not dispute credibility or cogency of the evidence and I accept the evidence advanced on behalf of the claimant and his wife. I note that the First-tier Tribunal heard from the family members and found their evidence to be entirely credible.
Legal framework
13. The representatives agreed that the correct approach to an appeal raised by the claimant is to consider the Immigration Rules first. Although this appeal has been brought on ‘human rights grounds’ only, both representatives agreed that if the claimant succeeds under EX.1(b) of the Rules, it inevitably follows that he succeeds under Article 8. I must first consider whether the claimant or his wife “face very significant difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship” – see EX.2 of the Immigration Rules.
14. If this test is not met I must consider whether there would be compelling or unjustifiably harsh consequences such that the claimant’s removal would be a disproportionate breach of Article 8. This is the approach approved of by the Supreme Court in (Agyarko) at [48] (albeit that decision pre-dated the Immigration Act 2014). In conducting the proportionality analysis, I must apply the public interest considerations set out in the Nationality, Immigration and Asylum Act 2002 (as amended) (‘the 2002 Act’).
The Immigration Rules
15. I do not accept that the claimant or his wife will face very significant difficulties in continuing their family life together in Tanzania. As noted by the Supreme Court in Agyarko at [43], the ‘insurmountable obstacles’ test is a stringent one, albeit it needs to be applied in a practical and realistic sense.
16. I accept that the couple will face significant difficulties in continuing family life in Tanzania. The wife is likely to find it particularly difficult to settle in Tanzania: she has never lived there, she is very close to her own family in the United Kingdom and not close to her husband’s family in Tanzania, and employment is likely to be more difficult for her in Tanzania. I do not consider that these significant difficulties can be described as ‘very significant difficulties’ that would entail very serious hardship. The stringent test is not met.
17. It follows that the claimant cannot meet the requirements of the Immigration Rules.
Article 8 outside the Rules - proportionality
18. It is not disputed that the only question in dispute between the parties relates to the fifth question in Razgar v SSHD [2004] 2 AC 368 and I turn immediately to the issue of proportionality.
19. Proportionality is the “public interest question” within the meaning of Part 5A of the 2002 Act. By section 117A(2) I am obliged to have regard to the considerations listed in section 117B. I consider that section 117B applies to this appeal in the manner I now set out.
20. The public interest in the maintenance of effective immigration controls is clearly engaged. The claimant is unable to meet the requirements of the Immigration Rules for the reasons I have already identified.
21. The claimant was seemingly able to meet the less stringent requirements regarding English tests in the past. I am satisfied that he has been able to work in the United Kingdom between 2011 and 2012 as an accountant. This is indicative of there being no infringement of the "English speaking" public interest.
22. The economic interest is unlikely to be engaged. The claimant has been in the United Kingdom for nearly six years, having entered with valid entry clearance as a spouse in May 2011. Throughout his time in the United Kingdom the claimant has had no recourse to public funds. He was employed as a finance manager in Tanzania and accrued significant savings. He was employed in the United Kingdom as an accountant but was unable to continue with this work for reasons relating to his immigration status in 2013. The family have been largely self-sufficient for an extended period, and have been able to rely upon savings. They own their own property in Thornton Heath. The wife has relied upon benefits and continues to claim job seekers allowance. She has however held paid employment as an administrator for a number of years and is looking for work. Given this history, there is a risk that they will resort to state benefits as a family. Having considered all the evidence before me I assess the risk of this to be low. Once the claimant is given permission to work the most likely scenario is that he will once again be gainfully employed in the finance sector earning a good salary, as he has done in the recent past, when permitted to work.
23. By virtue of section 117B(4) the private life of the claimant qualifies for the attribution of little weight. It is also important to also consider whether the family life between the claimant and his wife was established when the claimant’s immigration status was precarious – see Rajendran (s117B – family life) [2016] UKUT 138 (IAC) and Jeunesse (supra) at [108].
24. It is necessary to consider the claimant’s immigration history. The claimant entered the United Kingdom on 22 May 2011 with entry clearance as a spouse to 9 December 2012. Mr Staunton accepted that although the claimant made his first application for an extension of leave to remain in January 2013, this was made within the ‘28-day window’ applicable at the time and he did not become an overstayer at that point. Mr Staunton also accepted that the claimant made three applications to extend his leave to remain as a spouse in 2013, but each of these were treated as invalid because of various failures relating to the payment of the correct fee. Mr Staunton accepted that on one occasion the application was treated as invalid because the fee paid by the claimant was too high. By the time that the claimant made an application accepted to be valid in July 2013, he no longer had leave to remain. This was not because of any conscious failure or inability to comply with immigration requirements, but was the unfortunate result of a misunderstanding of a changing and complicated application process.
25. It follows from the above summary that the claimant’s immigration status was precarious from entry to the United Kingdom to July 2013, when he became an overstayer.
26. Although the claimant’s immigration status was precarious and then unlawful, it is important to view this in context, and in light of the relevant principles on precariousness set out by the Supreme Court in Agyarko at [49-53] and the guidance in the recent Upper Tribunal decisions leading to Rajendran (supra).
27. The claimant and his wife have a long-standing relationship that is accepted to be genuine and subsisting. They met in 2006 and got married in 2009. The claimant entered the United Kingdom with entry clearance as a spouse in 2011. They therefore began their married life in the United Kingdom having a reasonable expectation that the claimant would be provided with an extension of his leave to remain. The respondent has accepted that one of the claimant’s applications in 2013 only failed because he paid a fee that was too high. By the time he paid the correct fee he no longer had leave but had taken steps to regularise his immigration status. The SSHD refused him a residence card on 19 March 2014 but no removal action followed this. There has therefore been some delay by the SSHD. The claimant made a human rights application in February 2015 which was refused in April 2015.
28. The claimant therefore entered with the appropriate entry clearance having met all the requirements of the Rules. I am satisfied that this is a case in which the couple held a reasonable belief that they would be able to comply with the Immigration Rules in order to maintain family life in the United Kingdom. This is not a case in which the parties began and developed their relationship when one party was unlawfully here or was here in a particularly obvious temporary capacity, such as, being a student. In the premises a less stringent approach is appropriate. I am satisfied that although the claimant’s immigration status was precarious in the strict sense of the term it was at the lower end of the ‘precariousness spectrum’. I accept that the claimant became an overstayer but the unfortunate chronology that led to this has been explained. I accept that there was a great deal of confusion and misunderstanding regarding the applications in 2013.
29. I have already set out the reasons why I regard there to be significant obstacles to family life in Tanzania. I accepted that these cannot be described as ‘very significant obstacles’ but these difficulties still need to be considered in the round with all the relevant factors.
30. I regard the claimant’s wife’s relationship with her elderly British citizen parents in the United Kingdom to be an important factor in this case. I entirely accept that they are dependent upon her to assist with everyday tasks and she shares an exceptionally close relationship with them and her brother. They all live on the same road. The SSHD has argued that the wife’s parents can be cared for by her brother or by social services. This fails to take into account a material consideration – it is wife who has taken on the primary caring role for her parents, as her brother has his own work and family commitments. She has done so with a reasonable expectation that she would continue living in the United Kingdom, and leaving them would cause her as the First-tier Tribunal found, and no doubt them, “considerable distress”.
31. Whilst there is a clear public interest in the claimant’s removal given his immigration status and the factual finding that he does not meet the requirements of the Immigration Rules, I regard that public interest to be at the less pressing end of the spectrum. In so finding I have taken into account the public interest considerations contained in the 2002 Act, as summarised above, and note that it is likely that the claimant will be able to meet all the requirements of the Rules if he left the United Kingdom and applied again for entry clearance. Although the wife is on state benefits the claimant is likely to be able to obtain a well-paid job in the United Kingdom and following MM (Lebanon) (supra) adequate third party support is likely to be considered acceptable evidence.
32. I have weighed the public interest in the proportionality balance but in my judgment, it does not outweigh the preponderance of compelling factors in support of family life continuing in the UK, as set out above. These include, inter alia, the very strong family, property, past and potential employment ties between the wife and the United Kingdom. Of these, the most important factor is the very close relationship between the wife and her elderly parents, their emotional and physical dependency upon her, and her emotional dependency upon them and wish to continue caring for them as she has done for many years.
33. Accordingly, I find that it would be disproportionate breach of Article 8 to require the claimant to leave the United Kingdom.

Decision
34. The decision of the First-tier Tribunal contains an error of law and is set aside.
35. I remake the decision by allowing the claimant’s appeal on Article 8 of the ECHR grounds.

Signed: Ms Melanie Plimmer Dated: 9 March 2017
Judge of the Upper Tribunal