Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19423/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19th January 2017
On 20th January 2017

Before

UPPER TRIBUNAL JUDGE JACKSON

Between

GURJIT SINGH
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms. C Charlton, legal representative
For the Respondent: Mr S Withwell, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant appeals against the decision of First-tier Tribunal Judge Baldwin promulgated on 12 August 2016, in which his appeal against the Respondent's decision to refuse his application for leave to remain on human rights grounds dated 29 April 2015 was dismissed.
2. The Appellant is a national of India born on 20 December 1967, who first arrived in the United Kingdom illegally on 8 February 2000. The Applicant claimed asylum after arrival which was refused by the Respondent and his appeal against that refusal was dismissed on 1 November 2001. Further submissions were made by the Appellant which were refused by the Respondent on 3 December 2013. The application for leave to remain on human rights grounds which is the subject of this appeal was made by the Appellant on 10 February 2015.
3. The Respondent refused the Appellant's application on the following three grounds. First, under paragraph EX.1 of Appendix FM of the Immigration Rules, the Respondent found that although the Appellant had a genuine and subsisting relationship with a British Citizen partner, there are no insurmountable obstacles to that relationship continuing in India. The Appellant's partner had visited India and would be relocating with the Appellant who would be able to help her to adapt to life there. The Appellant's partner's children were adults who were working and able to lead independent lives in the United Kingdom maintaining a relationship with their mother in India.
4. Secondly, the Respondent refused the application under paragraph 276ADE(vi) of the Immigration Rules as the Appellant had spent 33 years of his life living in India and there was nothing to suggest there would be any significant obstacles to his reintegration there.
5. Finally, the Respondent considered whether there were any exceptional circumstances outside of the Immigration Rules but found none.
6. Judge Baldwin dismissed the Appellant's appeal on all grounds on the basis that there were no very significant or insurmountable obstacles to life continuing in India and reference was made to the Appellant's flagrant disregard for immigration law by overstaying since 2001. The Appellant's removal was not found to be a disproportionate interference with his right to respect for private and family life under Article 8 of the European Convention on Human Rights.

Grounds of Appeal
7. The Appellant appeals the decision of Judge Baldwin on three grounds. First, that he failed to make findings in relation to paragraph 276ADE of the Immigration Rules; secondly, that he failed to consider the Appellant's partner and her children and thirdly, that he came to an erroneous decision when conducting the proportionality exercise under Article 8 of the European Court of Human Rights.
8. Permission to appeal was granted by First-tier Tribunal Judge Garratt on the basis that it was arguable that the judge did not give consideration to the application of human rights under the Immigration Rules before identifying compelling circumstances enabling consideration of Article 8 issues outside of them on the basis set out in the Court of Appeal decision in SS (Congo) v Secretary of State for the Home Department [2015] EWCA Civ 387.
9. At the oral hearing, it was submitted on behalf of the Appellant that there was no proper assessment of paragraph 276ADE of the Immigration Rules and in particular there had been no consideration of the evidence that:
the Appellant's partner would not be able to pursue her career in India (given the objective evidence of the difficulties faced by women in India and that although she spoke Punjabi, she could not read or write it);
the Appellant left India in poor circumstances just before the birth of his second child which his ex-wife and her family were understandably upset by, such that he could not return to his home area but also could not relocate as he did not know any other area;
the Appellant and his partner would be destitute on return to India;
the outcome of any application for entry clearance is uncertain and the application from abroad would itself be disproportionate;
the Applicant's partner's children would culturally continue to live in the family home until marriage;
the Respondent had not at any time pursued enforcement action against the Appellant such that EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 applied.
10. It was submitted on behalf of the Respondent that the oral submissions amounted to no more than disagreement on the facts and a reiteration of the Appellant's claim rather than identification of any error of law. In any event, it was submitted that although provisions of the Immigration Rules could have been set out more specifically by Judge Baldwin, that all of the relevant findings of fact and conclusions were in fact made. Judge Baldwin had properly directed himself as to the relevant law and had clearly considered both paragraph 276ADE of the Immigration Rules (shown by his reference to the Appellant not having been residence for 20 years and no very significant obstacles to life in India) and Appendix FM (by the references to no insurmountable obstacles in family life continuing in India).
11. Further, it was submitted that no Tribunal properly directing itself to the Immigration Rules, section 117B of the Nationality, Immigration and Asylum Act 2002 or relevant case law, including Agyarko and others v Secretary of State for the Home Department [2015] EWCA Civ 440 could have reached the conclusion that the Appellant's removal from the United Kingdom would be a disproportionate interference with his right to private and family life under Article 8.

Findings and Reasons

12. In very broad terms, Judge Baldwin sets out the main relevant provisions of the Immigration Rules, section 117B of the Nationality, Immigration and Asylum Act 2002 and questions for the assessment of Article 8 of the European Convention on Human Rights (although these are not the five questions set out in Razgar [2004] UKHL 27) in paragraphs 16 to 22 of the decision. To that extent, it is clear that Judge Baldwin is aware that there are separate provisions relevant to this appeal to be considered. However, when it comes to the findings in the decision, there is no clear assessment of the Appellant's circumstances under each of the distinct provisions under the Immigration Rules or any identification of compelling circumstances to consider the claim outside of the Immigration Rules in accordance with SS (Congo). There is instead a global conclusion in paragraph 27 that there are no very significant obstacles or insurmountable obstacles to life continuing in India and that it would not be disproportionate or unreasonable for the Appellant to be removed to India.

13. The decision of Judge Baldwin contains errors of law in that it fails to make distinct findings with reference the separate relevant provisions of the Immigration Rules or outside of them, on each of the following three issues in this appeal. First, whether the Appellant meets the requirements of paragraph EX.1 of Appendix FM, specifically whether there are insurmountable obstacles to family life continuing outside of the United Kingdom. Secondly, whether the Appellant meets the requirements of paragraph 276ADE(vi) of the Immigration Rules, specifically whether there are very significant obstacles to his reintegration in India. Thirdly, whether there are compelling circumstances to consider the claim outside of the Immigration Rules and if so, following the five stage approach set out in Razgar and taking into account the factors in section 117B of the Nationality, Immigration and Asylum Act 2002 when conducting the proportionality assessment, to assess whether the Appellant's removal would be in breach of Article 8.

14. For the following reasons, the errors of law identified are not however material in this case. Within paragraphs 24 to 27 of the decision are sufficient findings of fact on the evidence before him to show that the conclusions reached overall in dismissing the Appellant's appeal were correct. Taking the Appellant's claim at its highest, on no legitimate view could his appeal succeed under the Immigration Rules or outside of them. Judge Baldwin found in paragraph 26 that the Appellant's partner would be able to join him in India and that she has travelled there twice without the Appellant and has a year-long multi-visa for India. The Appellant's partner speaks Punjabi and would be assisted by the Appellant in India. The Appellant's partner's children are adults and are able to live independently, together if needed, in the United Kingdom without their mother. On these findings and in accordance with Agyarko, the Appellant can not meet the requirements of paragraph EX.1 of Appendix FM to the Immigration Rules as there are no insurmountable obstacles to continuation of family life in India.

15. Judge Baldwin found in paragraph 26 that even if the Appellant was anxious about returning to his home area given the circumstances with his ex-wife's family, there is no reason why he could not relocate elsewhere. The Appellant lived in India for the first 34 years of his life. On these findings and in the absence of any evidence of the claim that he would be destitute on return, the Appellant can not meet the requirements of paragraph 276ADE(vi) of the Immigration Rules.

16. In paragraph 27, Judge Baldwin does not find any exceptional, compelling or compassionate circumstances. However, findings are in any event made as to the factors in section 117B, that the Appellant has never been granted leave to remain and has shown a flagrant disregard for immigration law by remaining here unlawfully since 2000 (paragraphs 24 and 27). The public interest in immigration control is set out, as is the knowledge of the Appellant and his partner about his precarious immigration status (and in fact deliberate choice to continue that way rather than taking the legal advice obtained to return to India to make an entry clearance application). In these circumstances, the Appellant could not on any legitimate view succeed in his appeal on human rights grounds outside of the Immigration Rules.

Notice of Decision

The decision of the First-tier Tribunal which was promulgated on 8 August 2016 did not involve the making of a material error of law in dismissing the appeal that requires the decision to be set aside and remade. The decision to dismiss the appeal is accordingly confirmed.

No anonymity direction is made.

Signed Date 20th January 2017

Upper Tribunal Judge Jackson