Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18303/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 1 April 2014
On 17th April 2014

Before

UPPER TRIBUNAL JUDGE DAWSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MUHAMMAD IQBAL RAO
Respondent

Representation:

For the Appellant: Ms A Everett, Senior Presenting Officer
For the Respondent: Mr C Jacobs, instructed by Bureau for Migrant Advice & Policy

DETERMINATION AND REASONS

1. The challenge by the Secretary of State to the determination of First-tier Tribunal Judge A Baldwin is on a narrow basis. The judge allowed the appeal under Article 8 against the decision to remove the respondent who is a national of Pakistan born 14 August 1968 as an illegal entrant.
2. On 8 October the respondent applied for leave to remain on Article 8 grounds based on family life with an Indian national, Ms Begum, who has indefinite leave to remain and with reference to his personal circumstances which included a fear from the Pakistan army and the police as a result of his political activities. The appellant refused the application on 12 May 2013 for reasons set out in a letter of the same date focusing on Article 8. As to the asylum claim, it was indicated that this should be made in person at the Asylum Screening Unit.
3. The appellant's challenge to the judge's decision is that:
"The IJ [had] not considered the guidance in the case of Gulshan (Article 8 - new Rules - correct approach) [2013] UKUT 640 (IAC) namely that there are good grounds for granting leave to remain outside the Immigration Rules it is necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the Rules. [emphasis added]
The IJ [had] omitted to consider whether there are good grounds for granting leave outside the Rules and whether there are compelling circumstances for considering the appeal outside of the Immigration Rules.
As the appeal was allowed on the basis of Article 8 outside the Immigration Rules it is submitted this is a material omission."
4. As was accepted by Ms Everett, the preamble to HC 194 provides that "if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the Rules in force on 8 July 2012". She acknowledged the limited nature of the grounds of challenge and, furthermore, accepted there was no challenge to the judge's conclusions on the Chikwamba point which had been the broad thrust of the Secretary of State's reasons for refusing the application. She explained that she did not make application to vary the grounds. After taking instructions she nevertheless maintained the ground of challenge on the basis that despite the application having been made in 2011, since the decision was made in 2013 and thus after the new Rules had come into force, the judge was required to have regard to the new Rules as part of the Article 8 analysis.
5. By way of response, Mr Jacobs adopted my observation that the challenge appeared to have been misconceived. It was not the respondent's case that he met the requirements of the old Rules. In his Article 8 findings, the judge had, in any event, used language which indicated that he had made the right approach illustrated as follows:
"That said I found the oral testimony of Mrs Begam and her three daughters highly credible and I accept the evidence of him playing a significant part in their lives since the children arrived in the UK in 2008 is compelling"
and
"I have no doubt whatsoever that if the appellant were now required to return to Pakistan it would be very upsetting for his wife's children ... the appellant's wife, I have no doubt at all would be absolutely devastated were he to have to move back to Pakistan, a country not that of her birth and upbringing ... it would be completely unreasonable to expect her to abandon her job and family in order to live in Karachi."
In addition he observed,
"he has not proved he was in the UK before 2004 but ten years with the same partner is clearly a durable marital relationship which should not be interrupted absent very good reason ... this is a genuine and durable marriage where separation of the spouses would be traumatic for the wife and extremely upsetting for the appellant ... effective immigration control does not demand him to return and were he to do so a number of people who love him very much would be caused a great deal of unnecessary upset."
6. Ms Everett had nothing to say by way of response.
7. I am not persuaded the judge materially erred in law on the narrow basis asserted in the grounds. Having regard to the date of the application, I do not accept that it was incumbent upon the judge to examine the case through the prism of the new Rules despite the decision having taken place after those Rules came into force. There would be no purpose otherwise for the preamble. Cranston J in Gulshan indicated at [26] that the fact that the respondent in that case did not qualify under the Rules did not mean those Rules could be passed over without analysis: "the Rules should have been the starting point, not least because the Secretary of State rested her decision - the decision the respondent was appealing - on the Rules".
8. In the case before me the Secretary of State made no reference to the new Rules in the reasons for refusal and furthermore it would not have been permissible for her to do so in the light of the timing of the application.
9. As to the second limb of the ground, the challenge that the judge had omitted to consider there were good grounds for granting leave outside the Rules and that there were compelling circumstances is not sustainable as this is precisely what the judge did. The grounds do not challenge the substance of that exercise. Although the decision by the judge was a generous one, it was within the permissible range of findings available on the evidence. The judge correctly directed himself as to the law and reached findings on the evidence. As acknowledged by Ms Everett, there is no challenge to the judge's treatment of the Chikwamba aspect.
10. For these reasons the challenge to the determination is not made out and the appeal is dismissed.

11. Since dictating this determination, the Court of Appeal in Edgehill & Anor v SSHD[2014] EWCA Civ 40 has clarified the position as to the new Rules vis a vis applications made before 9 July 2012. That decision provides authority for the conclusion I have reached in [7] supra. I see no reason to recall the parties to address me on this new decision.

Signed

Date 17 April 2014

Upper Tribunal Judge Dawson