Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18839/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 12th December 2016
On 19th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MRS SIDRA TANVEER
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr. D Mills, Home Office Presenting Officer
For the Respondent: Mr. N Ahmed, instructed by BLC Solicitors

DECISION AND REASONS
1. The appellant before me is the Secretary of State for the Home Department and the respondent to this appeal, is Mrs Sidra Tanveer. However, for ease of reference, in the course of this determination I shall adopt the parties’ status as it was before the First-tier Tribunal (FtT). I shall in this determination, refer to Mrs Sidra Tanveer as the appellant, and the Secretary of State as the respondent.
2. The respondent appeals the decision of FtT Judge Phull promulgated on 15th December 2015 allowing the appellant’s appeal under the immigration rules “because it is not in accordance with the law”.
3. The appellant is a Pakistani national. She arrived in the UK on 16th December 2012 with leave to enter as a Tier 4 (General) student, valid until 18th November 2014. She made an application for further leave to remain as a student and submitted a CAS issued by the London Metropolitan College. Before a decision was made upon that application, the sponsor licence issued to London Metropolitan College was revoked. The appellant was given a further 60 days, until 31st January 2015, to make a further application to the respondent. On 27th January 2015, she applied for leave to remain, not as a student, but as the partner of a person present and settled in the UK. The application was refused for the reasons set out in the respondent’s decision of 5th May 2015 and it is that decision, that gave rise to the appeal before the FtT.
The decision of the First-tier Tribunal
4. The Judge sets out the evidence at paragraphs [5] to [11] of her decision. The Judge found the appellant and her partner Mr. Ahmed, to be credible witnesses. At paragraph [20] of her decision, the Judge states:
“… In terms of Appendix FM partner route, l find on balance that the Appellant does not meet all the requirements of E-LTRP. She (sic) and the appellant married Islamically and have a child together. I accept their evidence that they have been in a relationship since April 2014 and married in June 2014 and are living together in a relationship akin to marriage. I find on balance that the birth of their child is prima facie evidence that theirs is a genuine and subsisting relationship.”
5. Having found that the appellant does not meet all the requirements of E-LTRP of Appendix FM, the Judge went on to consider the submission made on behalf of the appellant, and recorded at paragraph [23] of the decision, that EX.1.(b) applies because the appellant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen and there are insurmountable obstacles to family life with that partner continuing outside the UK. The Judge found at paragraph [28] that if the appellant’s partner were to return to Pakistan with the appellant, he would be unable to enjoy the face-to-face contact with his two children from his previous marriage, and that could have an adverse impact on their welfare and best interests. She found at paragraph [29] that the appellant and Mr. Ahmed would face very significant difficulties in continuing their family life together outside the UK, because Mr Ahmed cannot leave the UK and abandon his contact with his two sons. At paragraph [30], she found that on the other hand, if Mr. Ahmed remains in the UK, as is his right as a British Citizen, and the appellant returns to Pakistan with their child, Mr Ahmed would be denied the right to enjoy his relationship with this new family.
6. The Judge then states:
“32. In summary I find on balance that the arrangements with (H) and (A) cannot be overcome from a distance by telephone alone. These are young children that require love, constancy and the knowledge that they have parents that care for them and are interested in their lives. To maintain the same level of contact from Pakistan would in my judgement entail very serious hardship for Mr Ahmed because telephone contact alone will not be sufficient. If it were, social services would not have allowed supervised contact to take place because they clearly consider face-to face contact to be important.
33. Even if I am wrong and I believe I am not, I accept the submission that the documentary evidence in the appellant’s bundle was sent to the respondent. However there is no reference to the evidence relating to Mr Ahmed and his relationship with (H) and (A). Certainly there is nothing in the refusal to suggest that the caseworker has considered section 55 of the Border, Citizenship and Immigration Act 2009, in relation to these two children and their relationship with Mr Ahmed.
…
35. I find on a thorough reading of the refusal that the respondent has failed to undertake a proper analysis of the best interests of the Mr Ahmed’s children and a careful examination of all the relevant factors as well as the impact on his relationship with the appellant for the reasons considered above. I find on balance this failure renders the decision unlawful and not in accordance with the law.
36. For all these reasons I allow the appeal under the immigration rules and in the alternative, I allow the appeal because it is not in accordance with the law and the appellant awaits a lawful decision.
7. It appears that the Judge allowed the appeal because she found on the evidence, that the appellant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, and there are insurmountable obstacles to family life with that partner continuing outside the UK. Alternatively, the respondent’s failure to consider s55 of the Border, Citizenship and Immigration Act 2009, in relation to the relationship between Mr Ahmed and his two children renders the decision to be one that is not in accordance with the law.
The appeal before me
8. The respondent advances three grounds of appeal. First, insofar as the Judge concluded the decision was not in accordance with the law because the respondent had failed to consider the best interest of the appellant’s partner’s two children, the appropriate course was to remit the matter to the respondent for a lawful decision to be made. Second, insofar as the Judge allowed the appeal under the Immigration Rules by reference to paragraph EX.1, the Judge erred as to the application of paragraph EX.1. Third, the Judge makes no adequate findings as to whether the requirements of paragraph 276ADE of the Immigration Rules are met.
9. Permission to appeal was granted by First-tier Tribunal Judge Kelly on 13th May 2016. The matter comes before me to consider whether or not the determination by First-tier Tribunal Judge Phull involved the making of a material error of law, and if so, to remake the decision.
10. On behalf of the respondent, Mr Mills submits that the Judge erred in allowing the appeal under the immigration rules because paragraph EX.1 does not apply, and is not reached in this case. He relies upon the decision of the Upper Tribunal in Sabir (Appendix FM – Ex1 Not Free Standing) (Pakistan) [2014] UKUT 63 in which the Tribunal confirmed that paragraph EX.1 is “parasitic” on the relevant Rule within Appendix FM that otherwise grants leave to remain. It is a component part of the relevant leave granting rule. Mr Mills submits that the appellant’s partner cannot satisfy the definition of a “partner” that is set out in the rules. The appellant’s case, at its highest, is that she and Mr Ahmed began a relationship in April 2014 and have been living together since their Islamic marriage on 22nd June 2014. The Judge found at paragraph [20] of her decision that the appellant does not meet all the requirements of paragraph E-LTRP, and paragraph EX.1 cannot therefore apply.
11. Mr Mills submits that insofar as the Judge found that the decision was not in accordance with the law because the respondent had failed to consider the best interests of the children in accordance with her duty under s55, the appropriate course was to simply remit the matter to the respondent, for a lawful decision to be made.
12. In reply, Mr Ahmed submits that the Immigration Rules are in fact met. He submits that where there has been a finding of a genuine and suggesting relationship, there is no good reason for excluding a partner from the UK. He submits that the Immigration Rules must be interpreted so that they are consistent with the Article 8 rights of the appellant and in doing so, where the Judge has found that the appellant and her partner are in a genuine and subsisting relationship, and that the ”relationship was akin to marriage”, this must be interpreted as being sufficient to meet the definition of a “partner”. Alternatively, the appellant fell within the definition of a “fiancé” under GEN1.2(iii) given her and her partner’s intention to get lawfully married under UK law.
13. Mr Ahmed also refers to the requirements for limited leave to remain as a parent set out at paragraph R-LTRPT.1.1. Mr Ahmed submits that the applicant meets the requirements of paragraphs E-LTRPT.2.3 because her child, a British Citizen lives with Mr Ahmed, who does not qualify as a partner. He submits that the definition of a “partner” under GEN. 1.2 of Appendix FM, must be applied consistently throughout, and if the appellant’s partner is not to be regarded as a “partner” for the purposes of the “partner route” under Appendix FM, he must equally “not be a partner” for the purposes of paragraph E-LTRPT.2.3 (b)(ii). Mr Ahmed submits that as the Judge was entitled to, and correctly allowed the appeal under the Immigration Rules, the question of remittal to the respondent for a lawful consideration of s55 does not arise. He submits that the decision of the FtT Judge discloses no material error of law, and that I should dismiss the appeal.
DISCUSSION
14. The Judge found at paragraph [20] of her decision that the appellant does not meet the requirements of E-LTRP. She was right to do so. GEN.1.2. of Appendix FM provides that for the purposes of Appendix FM, “partner” means:
(i) The applicant’s spouse;
(ii) The applicant’s civil partner;
(iii) The applicant’s fiancé(e) or proposed civil partner; or
(iv) a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application unless a different meaning of partner applies elsewhere in this Appendix.
15. As Mr Mills submits, the appellant’s case at its highest, is that she and Mr Ahmed began a relationship in April 2014 and have been living together since their Islamic marriage on 22nd June 2014. The appellant made her application on 27th January 2015. On her own account, the appellant had been living with Mr Ahmed for seven months at the date of her application. The Appellant cannot therefore meet the definition of ‘partner’ set out at GEN.1.2.(iv).
16. I reject the submission made by Mr Ahmed that the appellant met the requirements of the immigration rules as a fiancé. In order to satisfy the requirements to leave to remain as a partner, paragraph E-LTRP.1.12 provides that the applicant’s partner cannot be the applicant’s fiancé(e) or proposed civil partner, unless the applicant was granted entry clearance as that person’s fiancé(e) or proposed civil partner. The requirement cannot be met by the applicant and she gains no assistance by now claiming to be the fiancé of Mr Abid Ahmed.
17. I also reject the submission made by Mr Ahmed that the appellant meets the requirements of paragraphs E-LTRPT.2.3 because her child, a British Citizen lives with Mr Ahmed, who does not qualify as a partner. GEN.1.2.(iv) expressly provides that ‘partner’ means “a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application, unless a different meaning of partner applies elsewhere in this Appendix”. Paragraph E-LTRPT.2.3(b)(ii) of Appendix FM expressly provides for a different meaning of partner for the purposes of paragraph E-LTRPT.2.3, as is permitted by paragraph GEN.1.2.(iv).
18. In my judgement, having correctly concluded that the appellant does not meet the requirements of E-LTRP, the Judge erred in concluding that the appeal could succeed under the Immigration Rules by reference to paragraph EX.1 of the rules. In order to meet the requirements for leave to remain as a partner, an applicant must meet all of the requirements of Section E-LTRP: Eligibility for leave to remain as a partner; or satisfy R-LTRP.1.1(d). That is:
(i) The applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
(ii) The applicant meets the requirements of paragraphs E-LTRP.1.2-1.12. and E-LTRP.2.1.; and
(iii) Paragraph EX.1, applies.
19. As I have said above, the Appellant cannot meet the definition of ‘partner’ set out at GEN.1.2.(iv). The appellant cannot meet the relationship requirement under E-LTRPT.1.2 of Appendix FM. This provision is mandatory and clearly could not be satisfied on the facts of this case. Once that has been established, and in light of the Upper Tribunal decision in Sabir [2014] UKUT 63 (IAC), EX.1 could not be relied on by the appellant.
20. It follows that insofar as the Judge allowed the appeal under the Immigration Rules by completing a free-standing assessment of whether the applicant has a genuine and subsisting relationship with a partner who in the UK and is a British Citizen, and by considering whether there are insurmountable obstacles to family life with that partner continuing outside the UK, the Judge erred in law, and her decision must be set aside.
21. I must therefore consider the appropriate disposal of this appeal. The Judge found at paragraphs [33] and [35] of her decision that the respondent had failed to consider her duty under s55 and that the failure renders the decision of the respondent unlawful and not in accordance with the law. To that end, at paragraph [36] of her decision, the Judge states “..I allow the appeal because it is not in accordance with the law and the appellant awaits a lawful decision.”. Thus the Judge allowed the appeal against the Secretary of State’s decision, as not being in accordance with the law, but remitting the matter back to the Secretary of State for a lawful decision to be made, having considered her duty under s55.
22. Mr Mills submits that once the decision of the FtT to allow the appeal under the immigration rules is set aside, the appropriate course is to remit the matter back to the respondent for a lawful decision to be made, as was anticipated by the Judge of the FtT. Mr Ahmed did not seek to persuade me that that was not the appropriate course to adopt. In all the circumstances, I am satisfied that that is the appropriate course for me to adopt.
Notice of Decision
23. The decision of the First-tier Tribunal to allow the appeal under the Immigration Rules did involve the making of an error on a point of law, and that decision is set aside.
24. I re-make the decision in the appeal, allowing the appeal against the Secretary of State’s decision of 5th May 2015, as not being in accordance with the law and remit the matter to the Secretary of State for a lawful decision taking account of her duty under s55 of the Borders, Citizenship and Immigration Act 2009.
Signed
11th April 2017
Deputy Upper Tribunal Judge Mandalia

FEE AWARD
Although I have set aside the decision of the FtT to allow the appeal under the Immigration Rules, the decision of the First-tier Tribunal to allow the appellant’s appeal because the decision of the respondent is not in accordance with the law has been upheld by me. The FtT decided to make a fee award and considering my decision the decision of the FtT to make a fee award in favour of the appellant shall stand.
Signed
11th April 2017
Deputy Upper Tribunal Judge Mandalia