Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19101/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 August 2016
On 21 October 2016
Prepared 24 August 2016

Before

UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

miss Consuelo Del Rostrio Calderin Manchego
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Ms Z Ahmad, Senior Presenting Officer
For the Respondent: Mr M Dayal of MDL Solicitors

DECISION AND REASONS

1. In this decision the Appellant is referred to as the Secretary of State and the Respondent is referred to as the Claimant.

2. The Claimant, a national of Colombia, date of birth 3 December 1976, appealed against the Respondent's decision dated 16 April 2015 to refuse leave to remain as a domestic worker in a private household by reference to paragraph 159H and paragraph 159G(ii) and (iii) of the Immigration Rules HC 395 (as amended) (the Rules) on 16 April 2015. Her appeal came before First-tier Tribunal Judge C A S O'Garro (the judge) who on 5 February 2016 allowed the appeal under the Rules.

3. Permission to appeal was sought on 10 February 2016 and granted by First-tier Tribunal Judge Andrew on 15 July 2016. The Secretary of State's first challenge was that there was a failure to provide adequate reasons to establish that there were insurmountable obstacles to family life continuing outside of the United Kingdom. A subsidiary part of that ground was that the judge had failed to adequately reason the basis of those insurmountable obstacles and in doing so had failed to make reference to the background material which supported the judge's view of the risk of kidnapping in Colombia.

4. The second challenge was that the judge had failed to make a finding that the Appellant's partner was a 'partner' as defined either under the Rules or at all. It was agreed that the judge had failed to consider whether the relationship was akin to marriage. It would seem, in all likelihood, that the person settling the grounds of appeal had only the judge's decision when drafting the grounds: Had that person also had the case file and the submissions made together with the evidence of the Appellant and her partner it is quite possible that the grounds would have been drafted differently.

5. For our part we were satisfied that the judge set out in the decision [D] the position as claimed by the evidence of the Claimant and the Claimant's partner (see D14, 18, 19). The judge further correctly addressed the relevant parts of Appendix FM and in particular paragraphs EX.1 and EX.2 as to the factors relevant to the consideration of whether insurmountable obstacles exist to prevent the relocation of the Claimant's partner to Colombia.

6. It is accepted that the judge explained his reasoning in D29 in relation to the case of Agyarko [2015] EWCA Civ 440 and evidently understood the threshold of insurmountable obstacles. At D30 the judge said:
"I now turn to this Appellant and her partner's particular circumstances. I have taken into account that the Appellant's partner is Iraqi. He has never been to Colombia and he does not speak the language. He has no understanding of the culture or mores of Colombia. There is also the security situation in Colombo [sic] [Colombia] as noted from the objective evidence which talks about kidnapping being a real treat [sic] [threat] as terrorist groups and other criminal organisations continue to kidnap and hold civilians, including foreigners for ransom."
The judge continued, D31:
"I find the fact that the Appellant's husband will have difficulty finding employment due to language difficulty and understanding the culture as well as the mental fear he would have in them going about their daily lives due to the fear of kidnapping or being harmed by criminals, makes relocating to Colombia filled with practical difficulties."
The judge continued, D32:
"Taking account of what the courts said about interpreting 'insurmountable obstacles' in a sensible and practical rather than a literal way, I am satisfied that there is insurmountable obstacles to the Appellant and her partner relocating to Colombia".
7. Whilst we might not have written the decision in the same way, we are assessing whether or not what was explained contained adequate or sufficient reasons. It is clear what the considerations were that the judge found demonstrated insurmountable obstacles. The judge reached that view by reference to background material, whose origins and sources are unchallenged, and identified the threats to foreigners from life in Colombia. The sources are a United Kingdom and a U.S. Department of State document. The basis of the judge's conclusion is understandable. If it is generous decision then that is a matter for the judge and we can only interfere if there is an error of law.

8. It is also correct to say that the background evidence does refer to the risk of kidnapping to foreigners and visitors to Colombia. The judge at paragraph D30 makes reference to background evidence, which can only be the two reports referred to. In the circumstances failing to actually quote parts of those documents does not disclose an error of law. It is not said that either of the two documents cited to the judge did not disclose the element of risk which the judge found there to be from kidnapping or harm. In the circumstances that part of ground 1 of the Secretary of State's appeal has no substance.

9. In relation to ground 2 we found that the evidence before the judge by way of statements from the Claimant and her partner together with the oral evidence and cross-examination, of which we have the notes, served in advance of the hearing from Mr Dayal, show that issue was not being taken over the nature of their relationship. It was not being asserted that they were not in a relationship akin to marriage. It is notable that it was not an issue originally raised by the Secretary of State. Whilst it is correct that the Secretary of State did not consider paragraph 276ADE or Appendix FM of the Immigration Ruled but the fact is that this issue was not pursued by the Secretary of State's representative at the hearing before the judge. Ultimately it was agreed, as the note confirms, that the relationship between the Claimant and her partner was not in issue nor was it raised by the Presenting Officer.

10. In the circumstances we were satisfied that there was no error of law. Mr Dayal raised various references that showed the longstanding nature of the Claimant and partner relationship and its permanence but these did not take the matter any further.

11. In these circumstances we are satisfied that the Secretary of State's grounds have not established any error of law: By and large they appear to be a disagreement with the findings made by the judge. We emphasise that we might not have reached the same decision on the evidence as to insurmountable obstacles but simply because we might disagree does not demonstrate an error of law. The Original Tribunal's decision stands.

NOTICE OF DECISION

There is no material error of law in the decision of First-tier Tribunal Judge O'garro, dated 5 February 2016. The appeal is dismissed.

ANONYMITY

No anonymity was sought nor is it required.

Signed Date 18 October 2016

Deputy Upper Tribunal Judge Davey