Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17670/2015

THE IMMIGRATION ACTS

Heard at: Field House
on: 9 March 2017
Decision and Reasons Promulgated
on: 27 March 2017

Before
Deputy Upper Tribunal Judge Mailer

Between
Mrs Esther Boamah
no anonymity direction made
Appellant
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Mr A I Corban, Corban Solicitors
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Ghana, born on 23 July 1960. She appeals with permission against the decision of First-tier Tribunal Judge Kimnell, promulgated on 11 August 2016, dismissing her appeal against the decision of the respondent dated 28 April 2015 to refuse her leave to remain in the UK.
2. The background to her appeal is not in dispute and has been set out by Judge Kimnell.
3. The appellant arrived in the UK as a visitor with leave valid until 1 November 1999. She was subsequently granted an EEA residence card valid from 4 August 2004, which was subsequently revoked.
4. On 25 February 2015 she applied for leave to remain on family and private life grounds. She claimed to have been living with her partner, Mr Yeboah Smith Asiamah, a British national of Ghanaian descent, since June 2011.
5. The application was refused under the partner route as the appellant had not provided the original passport for Mr Asiamah. It was acknowledged that they had a genuine and subsisting relationship. There are no dependent children.
6. Private life was considered under paragraph 276ADE of the Rules. There would not be very significant obstacles to the appellant's re-integration into Ghana. Nor were there exceptional circumstances justifying a grant of leave outside the Immigration Rules.
7. Judge Kimnell noted that her representative contended that the appellant met Appendix FM as well as paragraph 276ADE (vi) of the Rules. She also relied on “classic Article 8 principles” contending that the appeal should be allowed on that basis” [10].
8. He heard evidence from the appellant. Her partner's children live with their mother but the appellant has contact with them, seeing them every two weeks. She has an elderly mother and a sister residing in Ghana in addition to friends. She has nobody else [11].
9. She had lived with her mother and sister prior to coming to the UK. She claimed that she did not have a place to which she could return as everyone has now made their own lives. She has been present in the UK for 17 years, looking after her partner, and has friends in addition to her partner’s children. He cannot leave his children in the UK. He is employed here and has health issues.
10. As her partner is British and because of his illness it would not be possible to contemplate even a temporary separation whilst she returns to Ghana to make an application for entry clearance.
11. Mr Asiamah gave evidence which the Judge summarised from [16] onwards. He has resided in the UK for 22 years. He earns £1,200 a month net as a porter. He sees his children every two weeks. They are aged 18, 16 and 14. His children do not want to see the appellant leave the UK. They “would wish” to see their father marry the appellant.
12. Mr Asiamah will not travel to Ghana to join the appellant because of his children here, as well as his employment, friends and home in the UK where he is happy [18].
13. As to the possibility of the appellant returning to Ghana to make an application for entry clearance, that would involve a lot of money. Mr Asiamah travelled to Ghana in January 2016. He returns to Ghana every two years. He has a surviving sibling there. His health is “not too good.” A period of separation would affect him [19].
14. He has full time employment and travels to work on foot and by bus.
15. In Judge Kimnell's Decision and Reasons from paragraph [24} he noted that this is an appeal on family and private life grounds.
16. He found that the appellant is a national of Ghana, who came here in 1999 aged 38. She is a qualified healthcare worker and has worked in that capacity for many years. She previously married a Dutch national. The marriage broke down in 2008. She is not divorced from her husband, who has returned home.
17. She has lived in a relationship akin to marriage with Mr Asiamah since 2011. He accepted that her sponsor is employed in the UK. The documentary evidence on that point was “extremely thin” [26]. Most of the bank statements included in the documentary evidence are simply summary pages “….without showing deposit for example of salary, and evidence from DWP from 2013 dates back to 2013 and is not in the least bit helpful” - [26].
18. He accepted that the sponsor has some health issues such as hypertension, asthma and lower back pain as well as osteoarthritis in his knees and lower urinary tract symptoms. He did not however accept that his health conditions can properly be described as poor as he is able to carry out full time employment as a porter apparently having no mobility issues [28].
19. It was submitted that pursuant to paragraph 276ADE of the Rules, there are “insurmountable difficulties” to family life continuing outside the UK, namely, the sponsor's health and his parental responsibilities, his citizenship and other ties to the UK - [29].
20. Judge Kimnell did not accept that those amounted to very significant obstacles preventing family life between the appellant and sponsor taking place in Ghana. The sponsor is of Ghanaian origin. He has a brother living there and he visits every few years. The children do not live with him. It would be open for him to return from Ghana to visit his children if needs be in the future. He is capable of working. However, that is academic in the sense that he has said in terms that if the appellant leaves the UK he will not accompany her [30].
21. It was accepted that the sponsor had not submitted his original passport with the application. The fact that the respondent had previously seen the sponsor's passport did not however excuse the appellant from submitting it with the current application. The appellant therefore did not meet the requirements under the partner route [31].
22. Judge Kimnell then referred to the Article 8 submissions. He accepted that the appellant has a family and private life in the UK, living as she does with the sponsor and given her record of employment and other elements of private life here.
23. The decision to remove her has sufficient gravity to engage Article 8. It requires the sponsor to make a choice. He is a British national with health issues. Whilst they are not in themselves sufficiently serious to amount to a significant obstacle under the Rules, they are a consideration when judging whether it is reasonable to expect him to remove himself to Ghana - [35].
24. The Judge then sought to carry out a balancing exercise in accordance with the Razgar principles. The weight to be attached to the public interest in maintaining and enforcing immigration control is normally a weighty factor. It is particularly so in the case of an appellant such as this, who has overstayed in the UK for a very significant period of time. She held a residence card until 2008. Since then, she has had no legal basis for remaining in the UK.
25. On the other hand, it appeared from the respondent's decision that the only requirement the appellant failed to meet under the partner route was the provision of an original passport. It was contended that the respondent could have ascertained the details from a copy. The limited degree in which she failed to meet the Rules may lessen the importance to be attached to the maintenance of immigration controls [37].
26. She speaks English and is capable of being self sufficient. However, her private life has been built up whilst she has been present in the UK illegally, and that includes her relationship with her sponsor [38]. She does not have a parental relationship with his children. She has contact but is not a biological mother and is not married to him. The children live with their mother and will continue to do so.
27. Judge Kimnell noted that in addition to the s.117B issues there are other matters. Whilst it cannot be said that there are very significant obstacles to family life taking place between them in Ghana, it is probably not reasonable to expect the sponsor to return there. He has said he will not do that. He has children here with whom he wishes to maintain regular contact. He has employment and a home here and is a British national. He uses the NHS for his illnesses, which whilst not serious are of legitimate concern to him [41].
28. The appellant has family in Ghana. He did not accept that she has so adapted to the customs and traditions in Britain that it would be impossible for her to return to Ghana where she continues to have family and with whom she resided before coming here – [43]. The appellant has the option of making an application for entry clearance as a spouse or partner from Ghana, provided the requirements of the Rules can be met.
29. He noted that there is some uncertainty as to whether the financial threshold would be met. It appears that the sponsor provided evidence showing that he is paid £16,836.56 per annum which is less than the £18,600 threshold. It is not clear whether the shortfall can be met by additional work or savings. It appeared that at the moment, they probably would not be met, but, if anything, that may make it more desirable that the appellant should be put to proof on the point and establish that the Rules can be met and that they are capable of self sufficiency so as to avoid dependence on public funds - [44].
30. Having weighed all those factors, he concluded that to require the appellant to return to Ghana where she has the option of making an entry clearance application, is not a disproportionate interference with her Article 8 rights, her partner or any other person affected.
31. In the application for permission to appeal the appellant raised grounds under EX.1 as well as Article 8. On 16 December 2016, Upper Tribunal Judge Martin granted the appellant permission to appeal on the sole basis that it is arguable that the Judge erred in failing to consider Appendix FM and paragraph EX.1 as it is possible that the appellant may be able to succeed on the basis of R-LTRP, given that her partner, with whom it is accepted she has a genuine and subsisting relationship, has regular direct contact with his children in the UK.
32. Mr Corban, who did not represent the appellant at the hearing before the First-tier Tribunal, adopted the grounds of appeal. He contended that the decision is incomplete because of a failure to consider the provisions of Appendix FM, paragraph EX.1(b) of the Rules.
33. Nor were reasons given as to why the appellant did not meet the requirements of the partner route. It was accepted that the respondent had seen the sponsor's passport. Confirmation of his status in the UK was no reason for the Judge to refuse to consider Appendix FM, paragraph EX.1(b). The section applied and ought to have been decided by the Judge with full reasons for concluding that the appellant did not meet the requirements.
34. It had been accepted that the parties had a genuine and subsisting relationship. The sponsor had health issues and it was probably not reasonable to expect him to return to Ghana. He has children here.
35. Mr Corban also argued that the Judge did not undertake a balancing exercise in relation to proportionality, 'properly or at all' under Article 8. It was “Wendesbury unreasonable and irrational”. It was not reasonable to expect her partner to relocate with her to Ghana and the appeal should have been allowed on those grounds. If it was reasonable for him to relocate with her, the Judge has failed to consider the best interests of his children.
36. The conclusion that there are no insurmountable obstacles to family life with his partner continuing outside the UK is “not compatible with the facts.” If the children have a relationship with their father it is unreasonable. No adverse credibility findings have been made.
37. On behalf of the respondent, Mr Tarlow relied on the Rule 24 response. The Judge has given a balanced decision. He has considered whether there would be significant obstacles to family life taking place in Ghana. He noted that the children do not live with their father. It was a choice as to whether he wished to visit them.
38. On the evidence, the Judge came to a balanced conclusion. The current appeal constitutes a mere disagreement on the facts. He only sees the children every two weeks.
Assessment
39. It has been contended that the Judge did not consider, or properly consider, paragraph EX.1(b) of the Rules and the Article 8 decision is flawed.
40. Paragraph EX.1 applies if the applicant has a genuine and subsisting relationship with a partner who is in the UK and who is a British citizen, and there are insurmountable obstacles to family life with that partner continuing outside the UK.
41. It is provided at paragraph EX.2 that for the purpose of paragraph EX.1(b), insurmountable obstacles means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK which could not be overcome or would entail very serious hardship for the applicant or their partner.
42. I have set out in detail the Judge's approach to the submissions. He noted that there was 'no serious issue between the parties as to the facts' [25]. He set out the relevant relationships, including the fact that the sponsor has three children residing in the UK with their mother, with whom he has regular contact. He also accepted that the sponsor has some health issues which he set out at [28].
43. He did not however accept that Mr Asiamah's health condition could properly be described as poor as he is able to carry out full time employment as a porter and did not have any mobility issues [28]. That finding has not been challenged and was available on the evidence produced.
44. Having regard to the relevant facts, he concluded at [30] that they did not amount to very significant obstacles under of paragraph 276ADE(vi) of the Rules preventing family life taking place in Ghana. He set out his reasons for that finding at [30]. The sponsor has Ghanaian origins including a brother living there. He visits Ghana every two years. His children do not live with him. It would be open for him to return from Ghana to visit them if needs be in the future. He had however made it clear that if the appellant left the UK he would not accompany her.
45. I find from the foregoing that Judge Kimnell has given proper reasons based on the evidence for his finding that there would not be very significant obstacles preventing family life continuing in Ghana.
46. Even if he erred in failing to consider the appeal under paragraph Ex.1(b) of the Rules he was bound to conclude on the basis of the evidence that he assessed with regard to paragraph 276ADE(vi), that in the circumstances there would not be very significant difficulties which would be faced by the applicant or her partner in continuing their family life together outside the UK which could not be overcome or would entail very serious hardship for the applicant or her partner. Any error was therefore not material.
47. With regard to the Article 8 claim the Judge has set out in detail the relevant evidence, having properly directed himself in accordance with the Razgar formulation. In concluding that the proposed interference would be lawful in the circumstances, the Judge has properly considered and weighed the respective relevant interests in the balancing exercise. The conclusions he came to are not in any way irrational and were supported by the available evidence.
Notice of Decision
The decision of the First-tier Tribunal Judge did not involve the making of any material error on a point of law. It shall accordingly stand.
No anonymity direction is made.

Signed Date 25 March 2017
Deputy Upper Tribunal Judge C R Mailer