Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19012/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 13 February 2017
On 11 April 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Hilda Tinashe Usiku
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr Diwnycz, Senior Home Office Presenting Officer
For the Respondent: Mr Madanhi, Genesis Law Associates Limited

DECISION AND REASONS
1. I shall refer to the respondent as the appellant and the appellant as the respondent (as they appeared respectfully before the First-tier Tribunal). The appellant, Hilda Tinashe Usiku, was born on 6 August 1986 and is a female citizen of Zimbabwe. The appellant first entered the United Kingdom as a student in September 2007. On 21 September 2013, she married her Zimbabwean partner and submitted a further application for leave to remain. That application was refused with no right of appeal in-country. A further application was made by the appellant which was refused on 7 May 2015. The respondent accepted that the appellant was in a genuine and subsisting relationship with her spouse but contended there were no insurmountable obstacles to family life continuing outside the United Kingdom. Accordingly, the appellant failed to satisfy Appendix FM, EX1. There were no exceptional circumstances or private life considerations which would assist the appellant in satisfying paragraph 276ADE of HC 395 (as amended).
2. The appellant appealed to the First-tier Tribunal (Judge Lever) which, in a decision promulgated on 17 July 2016, allowed the appeal under the Immigration Rules and in respect of Article 8, ECHR. The appeal turned on the absence or presence of insurmountable obstacles preventing the appellant returning to Zimbabwe to make an out of country application for entry clearance. At [21], Judge Lever found that such obstacles did exist. The appellant had not lived in Zimbabwe for more than nine years, was a lone woman and had no relatives or friends who would assist her. If the appellant chose to return with her husband [23] then she would not be as vulnerable (because she would not be a lone female) and it was likely that the appellant’s husband would lose his job and that there would be “two individuals in Zimbabwe without accommodation employment or money and realistically with little or no prospects.” The judge also found that this was “one of those few cases” which should succeed outside the Immigration Rules [26]. There seemed to be little doubt that the appellant would succeed in an out of country application to return as a spouse given that the appellant’s husband earns about £30,000 per annum.
3. The grounds of appeal suggest that the judge’s findings were “speculative and arguably irrational.” The appellant and her husband are well educated and healthy Zimbabwean citizens and it was not rational to suggest that they had “no prospects” of establishing a family life with themselves in their home country.
4. EX1(b) provides:
The applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection and there are insurmountable obstacles to family life with that partner continuing outside the UK.
5. EX1(b) clearly envisages a permanent state of affairs which might render the enjoyment of family life abroad in the longer term impossible or, at least, very problematic; it may but does not necessarily cover also a temporary stay abroad whilst an application is made for entry clearance. The question therefore, is whether the judge’s finding that, even if the husband went back to live in Zimbabwe with the appellant, there would be insurmountable obstacles to the couples pursuing such a course of action. The judge’s findings regarding the lack of friends or a support network has not been challenged. Likewise, there was no challenge to the judge’s finding (“in all likelihood”) that the appellant would lose his job in the UK and that the couple would be without accommodation, employment and prospects in Zimbabwe. The grounds assert otherwise but do not take account (as the judge did) of the poor economic position of even graduate workers in Zimbabwe at the present time. Ultimately, the question resolves to one of perversity; was it perverse of the judge, on the basis of the evidence before him, to find that insurmountable obstacles of family life existed? In this case, a very experienced judge has taken a characteristically robust view of the facts but I am unable to say that no judge, properly directing him or herself, could properly conclude that insurmountable obstacles existed on this particular factual matrix. I fully accept that a different Tribunal may well have come to a different conclusion; however, that is not the point. Judge Lever had the benefit of hearing oral evidence and I have no doubt at all that he has considered “all the evidence in this case” as he stated that he had done. [21]. His finding on the central issue (in effect, whether there are insurmountable obstacles to the couple continuing their family life in Zimbabwe) was, in my opinion, available to him on the evidence. He has supported his findings with clear and cogent reasoning. In the circumstances, therefore, I can identify no error of law and the appeal is dismissed.
Notice of Decision
6. This appeal is dismissed.
7. No anonymity direction is made.

Signed Date 1 April 2017

Upper Tribunal Judge Clive Lane