Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19468/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd February 2017
On 20th February 2017

Before

UPPER TRIBUNAL JUDGE JACKSON

Between

ali umair
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Akinbulu of Counsel
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant appeals against the decision of First-tier Tribunal Judge Gibbs promulgated on 12 May 2016, in which his appeal against the Respondent's decision to refuse his application for leave to remain on the basis of private and family life dated 7 May 2015 was dismissed.
2. The Appellant is a national of Pakistan, born on 25 January 1988 who claims to have entered the United Kingdom on 16 June 2005. He was granted Discretionary Leave to remain from 5 October 2009 to 5 October 2012 and shortly before the expiry of that he made a further application for leave to remain which was refused on 7 May 2015. It is that refusal which is the subject of this appeal.
3. The Respondent refused the Appellant's claim on the basis that he did not fall within the family life provisions in Appendix FM of the Immigration Rules as he only had adult relatives in the United Kingdom. The claim was also refused under paragraph 276ADE of the Immigration Rules for two reasons. First, that he did not meet the suitability criteria in paragraph S-LTR1.6 of Appendix FM and therefore did not meet paragraph 276ADE(i) on the basis that it was undesirable for the Appellant to remain in the United Kingdom in light of his convictions on 21 November 2012 for driving while unfit through drink or drugs and on 16 January 2015 for possession and supply of Class B drugs. Secondly, the Appellant did not in any event meet the requirements in paragraph 276ADE(vi) because there were no very significant obstacles to his reintegration in Pakistan. The Respondent also considered whether there were any exceptional circumstances for a grant of leave to remain outside of the Immigration Rules but found none as his relationships could be maintained from Pakistan and he would be returning to a country where he has spent the majority of his life and where he is familiar with the culture, traditions and way of life.
4. Judge Gibbs dismissed the appeal in a decision promulgated on 12 May 2016 under the Immigration Rules and also on human rights grounds. At the appeal hearing, the Appellant also relied on his relationship with his wife, whom he married in an Islamic ceremony on 14 July 2015 for the purposes of Article 8 of the European Convention on Human Rights outside of the Immigration Rules, as it was accepted the requirements contained in Appendix FM were not met.
5. Judge Gibbs made adverse credibility findings against the Appellant, finding that he, his wife and mother gave evidence before her that was untrue and designed to mislead. Judge Gibbs expressly referred to a number of inconsistencies on the evidence, including that none of the witnesses gave consistent accounts of a trip to Pakistan in December 2015 for a family wedding; that the Appellant and his wife gave different accounts about when they met and the size of their wedding; and that the Appellant and his mother gave differing accounts about the Appellant's schooling in Pakistan. The first two of these were considered to be more significant given that they were in relation to events within the last six months or on which consistent evidence would normally be expected from a couple in a genuine and subsisting relationship. Judge Gibbs was not satisfied that there was a genuine and subsisting marriage on the basis of all of the evidence before her.
6. Judge Gibbs accepted that the Respondent exercised her discretion reasonably under paragraph 322(5) of the Immigration Rules in considering that it was undesirable for the Appellant to remain in the United Kingdom in light of his character and convictions given his criminal convictions and evidence at the appeal hearing.

7. Further, Judge Gibbs found that in any event, the Appellant did not meet the requirements of paragraph 276ADE(vi) of the Immigration Rules as there were no very significant obstacles to his reintegration in Pakistan. There was evidence of ongoing ties with Pakistan, the Appellant was educated there, he speaks Urdu and he is likely to be assisted by his large family on return. Finally, in accordance with SS (Congo) [2015] EWCA 387 there was no need to consider Article 8 outside of the Immigration Rules.
The appeal
8. The Appellant appeals the decision of Judge Gibbs on three grounds. First, that she erred in failing to take into account the evidence of cohabitation in the Appellant's bundle which was material to the assessment of whether there was a genuine and subsisting relationship. Secondly, that Judge Gibbs erred by failing to take into account evidence within the Appellant's bundle of travel to Pakistan which showed that the Appellant's wife and mother travelled together such that she should have been satisfied that they did travel together as claimed. Finally, that following the promulgation of the decision, the Appellant's conviction for possession and supply of a Class B drug was quashed by the Court of appeal such that there was a material mistake of fact which renders the decision on suitability grounds unsafe.
9. Permission to appeal was granted by Judge McWilliam on all grounds.
10. At the hearing, Counsel for the Appellant emphasised that the third ground of challenge involved no fault by Judge Gibbs given the conviction was quashed after her decision but submitted that as a procedural matter, this made the entire decision unsafe. The conviction meant that no consideration was made as to transitional provisions for those granted discretionary leave prior to 2012, nor was any consideration given to Appendix FM. On the remaining grounds, it was submitted that there was a wealth of evidence as to the relationship between the Appellant and his wife which was not addressed at all by the Tribunal.
11. On behalf of the Respondent, the Home Office Presenting Officer submitted that the focus of the hearing before the First-tier Tribunal was on private life and paragraph 276ADE and that the Appellant accepted his conviction but described himself as a changed man. It was right for the First-tier Tribunal to proceed on the basis of the conviction which stood at that time. As to the findings on the relationship, the inconsistencies highlighted were ones of detail rather than the mere fact that the individuals travelled to Pakistan and the grounds of appeal in this regard are no more than a disagreement with the findings.
Findings and reasons
12. I do not find that the First-tier Tribunal materially erred in law in finding that the Appellant had not established that he was in a genuine and subsisting relationship with his claimed wife, such that the appeal fails on the first two grounds of challenge. Judge Gibbs found a number of inconsistencies in the evidence before her of the Appellant, his wife and his mother, the concerns about which could not be met by reference to the material in the Appellant's bundle or the subsequent explanations for the inconsistencies given with the application for permission to appeal. In these circumstances, it is not necessary for the decision to have included reference to all of the other material available in the appeal bundles or showed to her on the day of the hearing and failure to do so was not a material error of law. As stated in paragraph 9 of the decision, only the evidence and submissions necessary to give reasons for her findings are set out and there is no indication that she failed to take into account any relevant material that could have undermined the findings she made.
13. In relation to the marriage, Judge Gibbs gave appropriate weight to the inconsistencies between the Appellant's evidence and that of his wife as to how they met and the size of their wedding - points which she was right to consider were ones where it was reasonable to expect a couple in a genuine relationship would give consistent answers. The fact there in the bundle there were a limited number of documents, addressed individually to the Appellant and his wife which had the same address on does not detract from those findings or undermine them. This claimed evidence of cohabitation was at best weak in any event given that there were documents addressed to the Appellant and his wife at different addresses for some months after their wedding and there were no examples of documents jointly addressed to the couple. In these circumstances, the findings as to lack of genuineness of the relationship and adverse credibility were open to the Judge on the material before her.
14. In relation to travel to Pakistan, the inconsistencies found by Judge Gibbs were in the detail of the evidence given by the witnesses rather than a finding that they did not travel to Pakistan at all as claimed. The stamps in the passports available in the Appellant's bundle and in the passport produced at the hearing showing that the Appellant's mother and wife travelled in and out of Pakistan on the same dates does not detract from the credibility findings of the inability of the witnesses to give consistent evidence about who else travelled and where they stayed. Those findings were open to the Judge on the material before her.
15. The Applicant does not challenge the findings of Judge Gibbs that there were no very significant obstacles to his return to Pakistan such that the requirements of paragraph 276ADE of the Immigration Rules were not met. The Appellant's appeal under the Immigration Rules and on human rights grounds was therefore bound to fail because he could not meet the substantive requirements of the Rules nor show that Article 8 was engaged outside of them.
16. As to the third ground of appeal, there can be no fault attributed to Judge Gibbs for proceeding on the basis of the Appellant's latest conviction, which had not at that point been overturned. Although I find that this was a mistake of fact which was material to the finding that the Appellant failed to meet the suitability criteria for leave to remain under the Immigration Rules, on the basis that although not known by any of the parties or the Tribunal at the date of decision, the conviction was quashed meaning that it was void ab initio and therefore never existed; it was not a material error of law to the dismissal of the appeal overall. For the reasons already given above, there was no material error of law in the assessment of credibility or the genuineness of the Appellant's relationship such that his appeal was bound to fail both under the Immigration Rules and on human rights grounds in any event.

Notice of Decision

The making of the decision of the First-tier Tribunal did not involve the making of a material error of law. As such it is not necessary to set aside the decision.

The decision to dismiss the appeal is therefore confirmed.

No anonymity direction is made.

Signed Date 17th February 2017

Upper Tribunal Judge Jackson