Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: IA/19062/2015

THE IMMIGRATION ACTS

Heard at Stoke
Determination Promulgated
On September 8, 2016
On September 13, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Before

MR MOHAMMED MAIJ UDDIN AHMED
(NO ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
Appellant Mr Muquit, Counsel, instructed by Taj Solicitors
Respondent Mr Bates (Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant, a citizen of Bangladesh, applied on July 11, 2011 for leave to remain under article 8 ECHR. The respondent refused this application on April 11, 2014 and the appellant appealed on April 24, 2014 under section 82(1) of the Nationality, Immigration and Asylum Act 2002.

2. The appeal was originally heard by Judge JS Law on October 17, 2014 and in a decision promulgated on October 30, 2014 he dismissed the appellant's claim under article 8 ECHR. The appellant appealed that decision and permission to appeal was given. The case was then listed before Upper Tribunal Judge Plimmer (formerly Deputy Upper Tribunal Judge Plimmer) on May 13, 2015 and in a decision promulgated on May 20, 2015 she found there had been a material error and remitted the appeal back to the First-tier Tribunal.

3. The case was then listed before Judge of the First-tier Tribunal Coates on January 21, 2016 and he also dismissed the appeal under article 8 ECHR in a decision promulgated on January 27, 2016.

4. The appellant sought permission to appeal that decision on February 9, 2016 on the ground the judge had erred. Permission to appeal was granted by Judge of the First-tier Tribunal Phillips on June 28, 2016 and the matter was then listed before me on the above date.

5. The respondent filed a Rule 24 response dated July 5, 2016 in which she opposed the grant of permission.

6. The First-tier Tribunal did not make an anonymity direction and pursuant to Rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008 I make no order now.

SUBMISSIONS

7. Mr Muquit adopted his skeleton argument and submitted there were three limbs to the appeal.

8. The first limb concerned the Judge's impartiality or as he put it the "lack of it". Paragraphs [19] and [22] were significant as was the concession by the respondent that the relationship was genuine and subsisting. He submitted that the Judge embarked on an unnecessary examination of the witnesses and in paragraph [22] stated, "? One cannot help but wonder why they decided to marry so soon after their first meeting, given the possible difficulties and complications which might arise from all these factors. That is why I say it is a matter which can be taken into account when considering proportionality." This approach infected the proportionality assessment he later carried out and amounted to an error in law.

9. The second limb of his argument concerned the Judge's mistaken conclusion in paragraph [24] of his decision that the appellant and his wife met whilst the appellant was here unlawfully. This was factually incorrect and in making this finding he again approached the issue of proportionality incorrectly. The Judge specifically stated, "Section 117B(4)? clearly applies to this appeal?" and in doing so he made inappropriate findings against the appellant which were then carried into his proportionality consideration. Whilst it is accepted the decision of Rajendran (s117B-family life) [2016] UKUT 000138 (IAC) extends precariousness to family life but the Judge did not consider his family life was precarious-merely unlawful.

10. The third limb of his submission centred on the Judge's statement in paragraph [28] that the test to be met was "insurmountable obstacles". This was not the test he should have applied and he again erred in his assessment under article 8.

11. The Judge's in assessing proportionality failed to give sufficient weight to the appellant's wife's illness and the fact the appellant was her carer.

12. Mr Bates relied on the Rule 24 letter and submitted having found the Immigration Rules were not met this the Judge was entitled to take this into account when considering article 8 ECHR. Whilst the Judge did erroneously state the appellant had been here unlawfully and apply the wrong test nevertheless when considering the whole of the decision he submitted there was no material error.

13. With regard to the first ground of appeal the Judge had to consider proportionality. At paragraph [19] he noted a lack of information of how they met and he was entitled to ask questions to enable him to look at the bigger picture. The appellant's immigration status was precarious and following the decision in Rajendran (s117B-family life) [2016] UKUT 000138 (IAC) the Judge needed to ascertain more information to enable him to consider whether the relationship was formed in precarious circumstances. He also needed to understand her medical condition and how she coped before they met and whether there was any social services involvement. These were factors that would form part of a proportionality assessment. No concerns were raised by the appellant's counsel at the hearing and the submission the Judge acted unfairly has no foundation.

14. With regard to the second ground of appeal the Judge erroneously stated the appellant had been here unlawfully when the relationship began. Whilst this was an error it was not material because the Tribunal in Rajendran (s117B-family life) [2016] UKUT 000138 (IAC) made clear that family life formed in precarious circumstances was a factor to have regard to. The Judge properly questioned them about the possibility of returning and making an entry clearance application and he did not err in his approach.

15. The final ground advanced has no merit because in paragraph [32] he applied the exceptionality test before balancing various issues and concluding it was proportionate to require the appellant to leave.

16. Although there were some errors they were not material.

17. Mr Muquit responded to these submissions and argued that the Judge's approach to precariousness was also flawed because he approached it from the position the appellant was here unlawfully.

18. Having heard their submissions, I reserved my decision.

DISCUSSION AND FINDING ON ERROR IN LAW

19. The appellant was granted permission to appeal on three grounds. Each ground is capable of showing an error in law and must therefore be considered individually.

20. The first ground argued was that the Judge adopted an approach that went against the respondent's stated position. Mr Muquit argued that by embarking on his own fact finding enquiry the Judge acted impartially and erred. In granting permission to appeal Judge of the First-tier Tribunal Phillips accepted it was arguable that the Judge's approach could indicate and unfair or prejudicial approach.

21. In assessing this ground, it is necessary to read the decision as a whole and not merely select individual paragraphs. After setting out the history to the appeal the Judge turned his attention to the evidence and between paragraphs [11] and [18] he set out the oral evidence of the appellant and his wife. He noted at paragraph [16] that "? it is pertinent to acknowledge that the respondent has accepted in the reasons for refusal letter that the marriage between Mrs Ahmed and the appellant is valid and subsisting. That is an express concession which has not been withdrawn."

22. It is against this that the Judge then commented at paragraph [19] that "there was virtually nothing in the witness statements or other documents about the circumstances in which the appellant and his wife met or how their relationship developed and resulted in marriage only a short time after their first meeting".

23. The Judge makes it clear in his decision that he asked questions to "clarify this aspect of the background to the appeal".

24. Mr Muquit submits this was inappropriate and by doing so the Judge erred. I disagree. The Judge was dealing with a claim outside of the Rules under article 8 ECHR. He would be required to assess the relationship, including how they met, how their relationship developed, the appellant's wife health and what the appellant knew of it as well as other general issues. It seems to me that this is the exercise undertaken by the Judge and when the appellant's representative was given the option to ask further questions it seems he declined. There is no evidence that the appellant's representative objected to any of the questions posed by the Judge.

25. Despite Mr Muquit arguing the Judge went behind the respondent's concession I note that in paragraph [22] the Judge states "As I have already acknowledged the respondent has accepted that the marriage ? is valid and subsisting. I do not seek to go behind that concession."

26. However, the Judge make clear that in assessing proportionality he could take the circumstances into account. This did not mean he went behind the respondent's concession. That concession was the marriage was genuine and subsisting. The Judge's finding did not undermine that concession but concentrated on possible reasons for the marriage. He concluded that paragraph by saying the information could be taken into account when considering proportionality.

27. Having considered the relevant part of the decision I am satisfied that the Judge's approach did not demonstrate impartiality, unfairness or prejudicial.

28. The second ground of appeal concerned the Judge's finding that family life was created when he was in here unlawfully. The evidence is that the appellant entered the United Kingdom as a working holidaymaker on September 17, 2008. He had leave to remain in this country until September 4, 2010. It is agreed that:

a. The appellant and his wife met in March 2010 and in June 2010 they submitted an application for approval to marry.
b. They went through an Islamic wedding on July 21, 2010.
c. The married on April 9, 2011.
d. The appellant became an overstayer and only applied to extend his stay on April 20, 2011.

29. The Judge wrongly stated that the appellant's wife became aware at a very early stage that the appellant had no immigration status. It is unclear what "very early stage" was meant to represent but perhaps the Judge's finding in paragraph [30] explains what the Judge was thinking because he wrote, "She knew from the outset that he had no permission to be in the United Kingdom and that he was an overstayer".

30. The Judge was wrong and Mr Bates recognised this in his submissions. However, the argument presented by Mr Bates was that this was not material.

31. The fact remains that the appellant has been here unlawfully since September 2010. He did nothing about his status until April 2011 by which time he and his wife had lawfully married. His application based on his family life was lodged eleven days after they married.

32. Mr Muquit's point is that in considering proportionality the Judge approached that assessment from the stance that little weight should be attached to his family life because he had been here unlawfully.

33. Mr Bates submits that although the Judge was wrong on that point it is immaterial because little weight should be attached to family life created in "precarious circumstances". The foundation of his argument is the Tribunal decision of Rajendran (s117B-family life) [2016] UKUT 000138 (IAC).

34. The Tribunal stated -

"39. It follows that when answering the "public interest question" posed by s117A(2)-(3) a court of tribunal should not disregard "precarious family life" criteria set out in established Article 8 jurisprudence. Indeed in certain cases, given that ss.117A-D considerations are not exhaustive, it may be an error of law for a court or tribunal to disregard such criteria. The proportionality assessment involved is capable of cutting two ways. It may be in certain cases that relevant extraneous "family life" considerations will strengthen an applicant's Article 8 claim as regards the question of proportionality... In other cases, however, extraneous "family life" considerations may weaken, at least in some respects, an applicant's Article 8 claim. One such example might be where the applicant's family life has been established or altered in character at a time when the applicant's immigration status is precarious.

40. That "precariousness" is a criterion of relevance to family life as well as private life cases is an established part of Article 8 jurisprudence: see the observations by Sales J (as he then was) at [38]-[43] in Nagre on what he called (at [42])"precarious family life" cases. At [41] he summarised the position as being that:
"The approach explained in the Strasbourg case-law indicates that where family life is established when the immigration status of the claimant is precarious, removal will be disproportionate only in exceptional cases?"

41. More recently the Grand Chamber in the case of Jeunesse v Netherlands, app.no.12738/10, 3 October 2014 has reaffirmed at [108] that:

"108. Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. It is the Court's well-established case-law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8?

45. As we have seen s.117B(4)(a) and (5) do not in fact "require" little [or to use the judge's term "less"] weight to be given to family life in the UK. At least in a case such as the appellant's (which was not one concerned with genuine and subsisting relationships between partners or children), s11B(4)(a) and (5) are silent about "family life"

46. However, we cannot see that this error was in any way material. The judge's assessment began at [25] with a self-reminder that he was only concerned with a claim on Article 8 grounds outside the Rules and earlier at [8] he had set out case law dealing with such claims, including Nagre. Having addressed the nature of the appellant's family life circumstances in [30]-[33], the judge then said that he turned to the 5 stage Razgar test and stated that he accepted that the appellant's family life ties in the UK engaged Article 8. In [35]-[37] the judge identified a number of factors bearing on the assessment of whether the interference with the appellant's private and family life ties would be proportionate or not. What then follows in [38]-40] is clearly an ongoing assessment of the "public interest" question having regard to private and family life."

35. The thrust of this specific ground of appeal is that the Judge erred because he approached the appellant's family life from the stance it was unlawful and reminded himself about section 117B(4) of the 2002 Act in paragraph [24] of his decision. However, the Tribunal made clear that such an approach will not always be an error because where family life was approached in precarious circumstances then it would only be in exceptional circumstances that a claim would succeed under article 8 ECHR.

36. I have therefore looked beyond the Judge's error in saying they formed family life whilst he was unlawfully and considered his approach to the evidence generally. The Judge noted he was an overstayer- a situation accepted by the appellant. The Judge then considered the appellant's wife's medical condition and noted she had the same problems before she met the appellant and that her condition was unlikely to improve. He noted the time frame for the relationship and then the parties met and he ultimately considered whether there were exceptional circumstances. The word exceptional of course features widely in article 8 jurisprudence and it was referred to in Rajendran.

37. The Judge made findings about the marriage and circumstances that were clearly open to him and whilst he was wrong to say the relationship began whilst he was here unlawfully I am satisfied that error was not material because the same concerns he raised in his decision equally applied to a relationship formed in precarious circumstances and as identified in the decision he then had to consider all of those factors as part of a proportionality assessment.

38. I am therefore satisfied that Ground Two is not made out.

39. The final ground of appeal centres again on language used in the Judge's decision. Having examined the appellant's wife's medical condition and the facilities available in Bangladesh the Judge then stated at paragraph [28] "The test of insurmountable obstacles is indeed a high one". It is this phraseology that Mr Muquit argues is incorrect and amounts to an error in law.

40. The phrase "insurmountable obstacles" originates from Section EX.1(b) of Appendix FM of the Immigration Rules. When examining the appellant's wife's circumstances and whether she should go to Bangladesh the Judge stated in paragraph [30] "I have little doubt that it would be difficult for Mrs Ahmed to relocate to Bangladesh but I am not persuaded that the difficulties she would face would be truly insurmountable"

41. If the Judge had refused the appellant's appeal at that juncture then I would agree with Mr Muquit that the Judge made an error in law but in fact the Judge went further.

42. From paragraph [31] onwards he then starts to consider exceptionality and section 117B factors. He correctly reminded himself that the appellant's task in showing removal amounted to a disproportionate interference was all the more difficult where family life was established at a time when his immigration status was precarious. An appellant would have to show exceptional reasons why removal would amount to disproportionate interference. He then went onto consider whether such circumstances applied in the appellant's case and he found none. He referred to a number of reasons including (1) The appellant's wife knew his immigration status was precarious; (2) he was an overstayer by the time they actually married; (3) the appellant had family members in Bangladesh; (4) the appellant could re-integrate himself as he had spent his formative years there; (5) His ability to speak English would benefit him in Bangladesh; (6) The appellant's wife medical conditions were pre-existing (earlier finding).

43. He concluded at paragraph [34] that removal was proportionate.

44. So whilst he wrongly referred in his decision to "insurmountable obstacles" I am satisfied that when he considered the issue of proportionality he did apply the correct test.

45. Whilst there were errors I am satisfied they did not amount to material errors either on their own or collectively.

46. I therefore dismiss his appeal under article 8 ECHR.

DECISION

47. There was no material error in respect of article 8 and I uphold the Judge's decision.

Signed: Dated: September 13, 2016

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

No fee award is made.

Signed Dated: September 13, 2016

Deputy Upper Tribunal Judge Alis