Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16646/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 March 2017
On 16 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Sikandar Noormohmed Vohra
(ANONYMITY DIRECTION not MADE)
Respondent

Representation:
For the Appellant: Mr D Clarke, Home Office Presenting Officer
For the Respondent: Mr S Karim of Counsel, instructed by M A Consultants (London)

DECISION AND REASONS
Background
1. The appellant in this case is the Secretary of State and the respondent is Mr Sikandar Noormohmed Vohra, a citizen of India born on 25 February 1955. However, for the purposes of this Decision and Reasons, I refer to the parties as they were before the First-tier Tribunal when Mr Vohra was the appellant.
2. Mr Vohra had applied for leave to remain in the United Kingdom on 25 June 2014 on the basis of his private and family life. The respondent refused that application in a decision dated 20 April 2015. In a Decision and Reasons promulgated on 15 September 2016, following a hearing on 17 June 2016, Judge of the First-tier Tribunal Shamash allowed the appellant’s appeal under Appendix FM, under paragraph 276ADE and under Article 8 of the ECHR.
3. The Secretary of State appealed for permission on the grounds that the First-tier Tribunal Judge materially misdirected herself in finding that the appellant’s spouse would be unable to live with the appellant in India. It was submitted that at [20] the First-tier Tribunal Judge referred to “objective evidence” in regards to Pakistani and Bangladeshi nationals being unable to apply for an Overseas Citizen of India cardholder. The judge considered from this that the appellant’s spouse would “not be granted status”.
4. The Secretary of State’s grounds argued that the fact that the appellant’s spouse would not qualify for registration as an Overseas Citizen of India cardholder was of no relevance in considering whether or not the appellant’s spouse would be able to gain entry clearance to India as a spouse. The judge had failed to identify why the spouse of an Indian national regardless of the nationality would ever be required to apply for registration as an Overseas Citizen of India.
5. It was further argued that the passage referred to by the judge was of no relevance to those making applications to enter or remain in India as a spouse and was referring to those who wished to be registered as ‘Indian Overseas cardholders’ and the reference to Pakistani and Bangladeshi nationals was a reference to those who may or may not have been born in pre-partition India. It was submitted that this was the sole reason for the judge finding that there were insurmountable obstacles to the appellant’s return to India and it was submitted that the judge had materially erred in law.
6. Mr Clarke relied on the grounds for permission to appeal. He conceded that the grounds for permission overstated the meaning of the background evidence evidence; the material, at pages 84 and onwards of the appellant’s bundle before the First-tier Tribunal, indicated that one of the conditions for issuing a Persons of Indian Origin (PIO) card was in the alternative that the person was the spouse of a citizen of India or of a PIO and has been for two or more years. He conceded that it was not the case that this evidence simply referred to those who may or may not have born in pre-partition India. Nor was it the case that the evidence made no reference to those who wished to enter or remain in India as a spouse.
7. However, Mr Clarke submitted that the evidence even on this point was unclear. Under the subheading, at page 89 of the appellant’s bundle, the question was asked:
“Can foreign nationals, who are not otherwise eligible for OCI, get OCI if they are married to persons who are eligible for OCI?
The spouse of foreign origin of a citizen of India or spouse of foreign origin of an Overseas Citizen of India cardholder registered under Section 7A and whose marriage has been registered and subsisted for a continuous period of not less than two years immediately preceding the presentation of the application.”
8. Although one of the subsequent questions in the same document indicated that an applicant who has held nationality of Pakistan or Bangladesh is not eligible for OCI, it was Mr Clarke’s submission that the preceding question on foreign nationals “who are not otherwise eligible for OCI” considered the possibility of such foreign nationals obtaining OCI if they were married to those eligible for OCI or citizens of India. He submitted that this potentially was an exception to the barrier on citizens of Pakistan or Bangladesh being eligible for OCI and that this did not address the substantive issue of whether an individual spouse could obtain a right to stay in India even if they were a Pakistani national.
9. Mr Clarke submitted that there was no adequate evidence to support the finding that the appellant’s wife could only visit him in India for a maximum of 90 days. Even if that was correct there was no discussion as to whether an extension could be applied for or what the position was in relation to spouses of Indian citizens who were nationals of Pakistan; the background evidence was not what one might expect in relation to the visa requirements for someone wishing to settle as a spouse.
10. Mr Clarke made submissions in relation to the fact that the Secretary of State’s grounds for permission had not specifically addressed the fact that the judge had also allowed the appeals under paragraph 276ADE and under Article 8 outside of the Immigration Rules. He submitted that the judge’s findings, including that it was her primary finding that the sponsor could not join the appellant in India “as she would not get a visa” infected the judge’s findings under paragraph 276ADE and Article 8 outside of the Immigration Rules notwithstanding that the judge had made other findings under these provisions.
11. Mr Karim submitted that the grounds only challenged EX.1 and the insurmountable obstacles point and that there had been no challenge in respect of paragraph 276ADE or Article 8 outside of the Immigration Rules. It was his further submission that the judge had not used the issue of the appellant’s wife relocating to India as a trump card and that there would be little sense in the judge allowing the appeal under three separate headings for the same reasons. He submitted that the tests were separate and different.
12. In relation to Appendix FM EX.1 Mr Karim submitted that there was some evidence before the First-tier which suggested that Pakistani nationals would be discriminated against in India. However, he accepted that the judge’s findings went beyond this in finding that:
“There was really only one significant fact in this case which brings this case into a category which would make the refusal of leave exceptionally harsh, it is that the appellant and his wife are respectively Indian and Pakistani nationals. The tensions between the two countries mean that it is impossible for the appellant’s wife to settle in India because she is a Pakistani national by birth (AB 88 – 90).”
13. Mr Karim submitted that the judge’s findings at [31], that this meant that the appellant’s wife could visit him in India for a maximum of 90 days, appeared to be based on paragraph [14] and the oral evidence of the appellant and he could not point to any objective evidence which support this evidence.
14. Mr Karim submitted that at [41], in relation to Article 8, the judge had relied on other factors including that the sponsor was a vulnerable lady who suffers from a number of medical conditions and there was a very real chance that she would be unable to meet the financial requirements. He submitted that it was open to the judge to accept the appellant’s evidence in relation to this. It was his principal submission that the respondent had not challenged the judge’s findings under paragraph 276ADE or under Article 8 outside of the Immigration Rules.
15. Mr Clarke in reply submitted that in absence of other evidence it was not open to the judge to reach this conclusion in relation to the laws of another country. He submitted that this was analogous to the current circumstances in relation to proxy marriages where it must be demonstrated that they meet the relevant requirements of the law of the country in question and that it is not sufficient in those cases to rely on a mere printout as to the legal position.
Discussion
16. Mr Karim did not submit with any great force that the judge had not made a material error in relation to his findings as to the ability of Pakistani nationals to settle in India. The information before the First-tier Tribunal specifically addressed applications of “Overseas Citizens of India” (OCI). Although this included “spouses of foreign origin” whose marriage has subsisted for a period of not less than two years, the information was silent on a number of points including the position for spouses of Indian nationals who have been married for less than two years regardless of their nationality. It cannot be said that this “Indian visa information” produced before the First-tier Tribunal is decisive (as the judge had found it to be) as to whether the appellant’s wife could settle in India with her husband.
17. The information is also ambiguous as to the position for foreign nationals given that it refers to a route for foreign nationals “who are not otherwise eligible for OCI”. This could potentially include those of Pakistan or Bangladesh nationality. It is entirely unclear whether they too are precluded from this exception. There is no information in this evidence as to any other visa routes, other than Overseas Citizen of India.
18. I am further not satisfied that the judge gave adequate reasons for reaching the conclusion that the appellant’s wife could only visit him for a maximum of 90 days given that this conclusion was based both on the appellant’s evidence and also on the judge’s erroneous conclusion that the background country information indicated that there was no route for the appellant’s wife to settle given that she is a Pakistani national. The background information did not support such a finding.
19. I do not accept Mr Karim’s submission that the judge would not have made findings she did under Paragraph 276ADE(1) and Article 8, if she made those findings for the same reason.
20. The judge was explicit in her Decision and Reasons including at [30] that:
“There was really only one significant fact in this case which brings this case into a category which would make the refusal of leave exceptionally harsh, it is that the appellant and his wife are respectively Indian and Pakistani nationals. …”
21. The judge, when considering paragraph 276ADE, indicated that “in many ways this paragraph is difficult to interpret in the context of the facts of this case because the principal obstacle to reintegration is that the appellant has married a Pakistani.” Although the judge went on to find “I accept that he no longer has real ties in India and is elderly I therefore find that there are significant obstacles to his reintegration” this was “because of his marriage”.
22. Similarly, in relation to Article 8 outside of the Immigration Rules the judge found that the appellant has not worked legally in the United Kingdom:
“and has had no status and but for the exceptional circumstances in this case his appeal would fall to be refused. Whilst the test under EX.1 is different my findings under proportionality are based on the same factors as my findings under EX.1.”
23. It is not the case that had the judge would have inevitably reached those findings if she had not been mistaken in relation to the sponsor’s claimed inability to live in India. The judge appears to indicate that the case would have otherwise failed except for the “very exceptional circumstances” which echoes her consideration at paragraph [30] of “really only one significant fact” which was the mistaken issue on India.
24. The findings of the First-tier Tribunal are infected by the error in relation to the issue of the appellant’s spouse’s eligibility to live in India. It is Robinson obvious and I have considered what was said by the Court of Appeal in HS (Afghanistan) [2009] EWCA Civ 771 in relation to the enlargement of grounds of appeal and I am satisfied that this is one of those exceptional circumstances. A material error of law in regard to EX.1 would also be material to the judge’s subsequent findings which, I am satisfied, cannot stand without the primary finding on EX.1.
Notice of Decision

The decision of the First-tier Tribunal materially errs in law and cannot stand. Due to the nature and extent of the findings of fact required including that the appellant’s representative intends to provide further expert evidence in relation to the position of Pakistani national spouses in India, the decision is remitted to the First-tier Tribunal, other than to Judge Shamash, for a fresh hearing. No findings of fact are preserved.

No anonymity direction was sought or is made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No application for a fee award is sought or is made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson