Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18025/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 August 2016
On 13 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MCCLURE

Between

Ms Ana [R]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms L Appiah of Vine Court Chambers
For the Respondent: Ms A Brocklesby-Weller, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Original Appellant, Ms Ana [R], date of birth 15th March 1982 is a citizen of the Philippines. Having considered all the circumstances I am satisfied that it is not necessary to make an anonymity direction.
2. This is an appeal by the Respondent against the decision of First-tier Tribunal Judge Jessica Pacey promulgated on 22nd January 2016. I have kept the designation of the parties as they appeared in the First-tier Tribunal.
3. By the decision of the 22nd January 2016 Judge Pacey allowed the Appellant's appeal against the decision of the Respondent to refuse her further leave to remain to remain in the UK.
4. By a decision taken on 25th July 2016 First-tier Tribunal Judge Simpson granted permission to appeal to the Upper Tribunal. Thus the matter appeared before me to determine in the first instance whether or not there was an error in law in the original determination.
Factual background
5. The appellant entered the United Kingdom on 5 February 2012 as a Tier 4 student with leave valid until 8 June 2013.
6. Whilst in the United Kingdom the appellant met and began a relationship with Mr [LH]. They appear to have met on 12 May 2012 and they began to live together on 21 July 2012. They married on 9 January 2013 in the Philippines. Thereafter they appear to have returned to the United Kingdom, to continue to their lives together in the UK.
7. On 18 October 2013 the appellant made an application based on Article 8 of the ECHR. It appears that that application was refused on 13 November 2013. There was an application for the decision Respondent to be reconsidered on 25 November 2013.
8. On 17 November 2014 the appellant was served with an IS151A as a precursor to a removal decision being taken. Whilst the appellant made further submissions the refusal of the Article 8 claim was upheld on 6 January 2015.
9. By decision taken on 24 April 2015, the appellant's application for further leave to remain having been refused, the respondent refused the appellant's Article 8 claim. The appellant appealed against that decision. The appeal was heard and allowed by Judge Pacey.
10. In refusing the appellant's application the respondent had given the following reasons for refusal: -
a) The application as a partner was considered under Appendix FM R-LTRP. Insufficient evidence had been submitted to show that there was a genuine and subsisting relationship. The appellant did not meet the requirements of E-LTRP .1.7., as there were no children, and, as it was not accepted this was a genuine relationship, EX.1. did not apply.
b) Further in any event even if there was a genuine relationship with a partner there was no evidence that there were insurmountable obstacles to their relationship continuing in the Philippines. Therefore EX.1(b) did not apply.
c) The appellant therefore did not meet the requirements of R-LTRP.1.1.d.
d) Consideration was given to the appellant's private life under paragraph 276 ADE but the appellant had not been in the United Kingdom for the prescribed periods and there were no very significant obstacles to the appellant's reintegration into her country of origin. Therefore the appellant did not meet the requirements of 276ADE (1)(vi).
e) Thereafter consideration was given to whether there were any exceptional circumstances justifying consideration of article 8 of the ECHR outside the Immigration Rules.
f) Having assessed all the factors it was decided that there were no exceptional circumstances warranting consideration of Article 8 outside the Immigration Rules.
11. In coming to that conclusion consideration was given to all the facts advanced on behalf of the appellant. The appellant had claimed that there would be no work for either her or her husband; that she had no family she could rely upon in the Philippines; and no ties. She claims to be settled in the United Kingdom with her husband and had a close connection with her in-laws including her father-in-law who suffered depression. It was asserted that Philippines was a corrupt and poor country and that there was nothing there for the couple in the Philippines. However it was asserted that there was no evidence to show that she and her husband would not be able to find work as both of them were young and in good health. The appellant studies and the skills learnt in the UK would be advantageous in the Philippines. It was considered that the appellant had social and cultural ties in the Philippines. Given that her husband had been aware of her immigration status he should have been aware that she may be removed. No evidence had been submitted to show insurmountable obstacles in the Philippines.
Error of Law
12. I would note that the only reason given within the letter of refusal for refusing the application under the Immigration Rules Appendix FM was that the respondent was not satisfied that this was a genuine and subsisting marriage.
13. It was conceded before the judge that the appellant could not meet the requirements of the rules. The judge commenced to consider whether or not the appellant could succeed under Article 8 of the ECHR.
14. Within the grounds of appeal it is suggested that the judge has failed to consider whether or not there are exceptional circumstances warranting consideration of the appeal outside the Immigration Rules on the grounds of Article 8. It is submitted that in taking that course the judge has made a material error of law. Reliance is placed upon the case of Singh v SSHD [2015] EWCA Civ 74, which supports the approach advocated in the case of Nagre 2013 EWHC 720.
15. A careful reading of paragraph 21 and 20 indicate that the judge did not merely commence on a consideration of Article 8. The judge looked at the circumstances to check whether or not Article 8 was engaged and whether or not the circumstances justified considering the appeal on Article 8 grounds. In paragraph 22 the judge clearly indicates that Article 8 is engaged and consideration of Article 8 is warranted in the circumstances on the basis that the appellant has made an honest mistake in the past as to dates; that the husband of the appellant now earns sufficient to meet the financial threshold within the Immigration Rules; that this was a genuine and real marriage; and that accordingly the prospects of an application from abroad succeeding are that much higher. Accordingly the judge has considered whether or not it is appropriate to consider Article 8 in the circumstances. The judge has identified the factors which she believes justify consideration of Article 8 outside the rules. The judge has even referred to the issues of exceptionality and the case law relevant thereto within paragraphs 34 and 35 of the decision.
16. The judge has thereafter made a careful assessment of all the relevant factors relating to Article 8. The judge has carefully considered the circumstances, which the appellant and potentially her sponsor would face in the Philippines. She gives reasons for finding that the UK national sponsor would not be able to find employment. She has noted the dyslexia of the sponsor. She has also noted the connection between the appellant and her in-laws and the medical problems of the in-laws.
17. At the time of the hearing the judge was satisfied that the sponsor was in employment and was earning sufficient to meet the requirements of the rules. The judge also found this was a genuine and subsisting relationship.
18. It is further suggested that the judge has failed to consider Section 117 of the 2002 Act properly. The appellant status in the United Kingdom was precarious. In line with the case of AM (s 117B) Malawi [2015] UKUT 0260(IAC) it is submitted that the judge has failed to identify the factors weighing in the appellant's favour in considering that they outweigh factors identified in the statutory provision. Again as set out above the judge has clearly given a careful assessment of the circumstances of the appellant and the sponsor and has given valid reasons for coming to the conclusions that she has. Equally the judge has referred to case identified and was clearly mindful of the factors necessary to justify the conclusion that she came to.
19. As a final matter it is suggested that the judge has failed to make proper assessment of the fact that an application could be made from abroad, as identified in the case of R (on the application of Chen) IJR [2015] UKUT00189(IAC). Judge "makes a specific finding that she was specifically satisfied on the basis of the evidence presented that there were compelling circumstances which rendered the decision of the respondent disproportionate.
20. The judge has properly assessed all the factors and given valid reasons for finding that consideration of Article 8 was in the circumstances justified. She has thereafter given ample reasons to justify the conclusion that the decision was not proportionately justified. In the circumstances the judge has fully justified the conclusion that the appeal should be allowed.
21. In the circumstances the judge has given valid reasons for coming to the conclusions that she has and there is no error of law in the decision.
Notice of Decision
22. I dismiss the appeal by the respondent and uphold the decision to allow this appeal.
23. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge McClure 13 September 2016