Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19618/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th March 2017
On 5th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Theodora Valerie Ibekwe
(ANONYMITY DIRECTION not made)
Respondent

Representation:

For the Appellant: Mr S Kotas, Senior Home Office Presenting Officer
For the Respondent: Mr S A Canter, Counsel, instructed by AMZ Law, London

DECISION AND REASONS

1. Ms Ibekwe is a citizen of Nigeria whose date of birth is recorded as 20 December 1973. She entered the United Kingdom as a visitor with a valid visa in 2001, claiming last to have entered in July 2008. In March 2015, she made application for leave to remain as the spouse of a British national. On 14 May 2015, a decision was made to refuse that application and she appealed.
2. The appeal was heard on 4 August 2016 by Judge of the First-tier Tribunal Iqbal sitting at Hatton Cross. The parties to the First-tier Tribunal agreed that Ms Ibekwe could not meet the requirements of the Immigration Rules because in respect of Appendix FM the Sponsor and Ms Ibekwe had only been through a religious ceremony and for the purposes of 276ADE(vi) there were no sufficient significant obstacles to integration of Ms Ibekwe back in Nigeria. Consideration therefore was given to whether Ms Ibekwe could succeed by reference to the wider application of Article 8 of the ECHR.
3. Judge Iqbal had regard to the case of Agyarko [2015] EWCA Civ 440; SS (Congo) [2015] EWCA 387; Razgar [2004] UKHL 276; Beoku-Betts [2008] UKHL 39; AG (Eritrea) –v– SSHD [2007] EWCA Civ 801 and EB (Kosovo) [2008] UKHL 41. The decision to allow the appeal, as Judge Iqbal did under the wider application of Article 8 on 1 September 2016, predated, however, the more recent guidance in Agyarko [2017] UKSC 11 of the Supreme Court, reference
4. Not content with the decision of the judge, the Secretary of State, by Notice dated 19th October 2016, made application for permission to appeal to the Upper Tribunal. I was grateful to Mr Kotas, who crystallised the grounds as follows:
(i) The Article 8 assessment was fatally flawed.
(ii) There were inconsistent findings of fact.
(iii) The judge misdirected himself with respect to Section 117B of the Immigration and Asylum Act 2002.
5. On 8h February 2017 Judge of the First-tier Tribunal Landes granted permission. In doing so Judge Landes said:
“The decision is clear and careful but it is arguable (see para 11 grounds) following the case of Rhuppiah [2016] EWCA Civ 803 that the judge misdirected herself as to the ability to speak English and being financially independent being positive factors. The judge appears to have found that the fact the financial threshold under the Rules was met was a positive factor (as she referred to it as a relevant matter in relation to the balancing act [25]) and it is also arguable that she took the Appellant’s ability to speak English as a positive factor because she referred to it at [26] in a way which suggested that she may have seen it as counterbalancing the public interest considerations against the Appellant. It is also arguable (see paras 10 and 13 grounds) that she may not have taken into account that case law suggests that where statute requires regard to the consideration that little weight should be given to family life there need to be compelling reasons to justify departure from that approach (compare Jeunesse as cited in the grounds and [54] Rhuppiah).”
6. Mr Kotas again, by pointing to paragraph 13 of the Decision and Reasons, reminded me that the appeal only concerned the wider application of Article 8. He observed that the judge self-directed herself in line with SS (Congo) such that, “only if there may be arguably good grounds for granting leave to remain outside them [the Rules] is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them”. I repeat that this decision was prior to the Supreme Court’s guidance in Agyarko. The point taken by Mr Kotas, however, was that notwithstanding that self-direction the judge did not herself address the question pregnant in that guidance. At paragraph 26 of her Decision and Reasons the judge observed:
“It is clear the Appellant [Ms Ibekwe] has remained unlawfully in the United Kingdom and as such under Section 117 of the Immigration Act 2014, little weight can be given to her private and family life, however, I find that this is not determinative of the public interest considerations. The Appellant has not been a burden on the state and is able to speak English, such that she is able to fully integrate within the United Kingdom.”
Mr Kotas submitted that this was inadequate. He took me to paragraph 49 in the case of Agyarko in the Supreme Court in which, having regard to the case of Jeunesse, and under the heading of “Precariousness” the Supreme Court pointed to the jurisprudence in which it was said:
“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” where 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”.
7. In SS (Congo) at paragraph 67 Richards LJ said:
“… There are important material differences for the purposes of Article 8 between applications for leave to enter and applications for leave to remain, and a state is not required to adopt as accommodating an approach in the former context as in the latter. Moreover, at a time before EX.1 of the new Rules was promulgated, the House of Lords in Huang contemplated that both in the context of applications for leave to remain and in the context of applications for leave to enter, it might well be the case, depending on the circumstances, that the Secretary of State could lawfully refuse an application, without violation of Article 8, even though the family life relied upon ‘cannot reasonably be expected to be enjoyed elsewhere’: see para. [20], quoted above. This is another way of saying that this feature of a case does not, without more, create a right for a family member to enter or remain in the United Kingdom. In that paragraph, Lord Bingham also explained that, even on the Immigration Rules in the form they had prior to their amendment in July 2012, his expectation was that the number of claimants entitled to succeed under Article 8 in claiming LTE or LTR outside the Rules ‘would be a very small minority’.”
8. Moving on then to paragraph 87 in the case of SS (Congo) it was observed as follows:
“In fact, the marriage was entered into at a time when it was known that FA had no right to come to the United Kingdom; moreover, there is no impediment to the husband going to continue family life with her in Uganda. The fact that he would lose his job in the United Kingdom and hence would prefer to establish family life here does not constitute compelling circumstances to require the grant of LTE outside the Rules: as the authorities make clear, Article 8 does not create a right for married couples to choose to live in a contracting state.”
9. Mr Kotas then pointed to what in his submission were inconsistent findings because the judge had agreed that the Appellant in the First-tier Tribunal, Ms Ibekwe, could not avail herself of 276ADE (see paragraph 13) and repeated the same at paragraph 30, yet at paragraph 23 said:
“Insofar as the Appellant was concerned, she felt the obstacles that they might face on return to Nigeria would also be caused by her background. That is, she was a well-known film actress and director in the Nollywood film industry and given the high level of jealousy amongst her fellow peers and as of recent years with many rising stars dying in mysterious circumstances, she feared returning to Nigeria as her safety could not be guaranteed. I do not accept these matters would cause any difficulty to integration and I have fully set out my findings in further detail below, especially in light of the fact that the Appellant’s husband’s evidence when asked about returning to Nigeria with his wife, was that he could go back on a temporary basis but it would be hard to go and start over in terms of employment and so. Furthermore he clarified that they intended a traditional ceremony in Nigeria however they both needed to be there as a couple. They intended to do so in the future.”
That is all to be read in contrast to paragraph 27 in which the judge appeared to roll back on those findings in saying that:
“In considering all these matters as set out above together with the ages of the Appellant and her husband, which I find is relevant on the facts of this particular case, that is, they are a more mature couple who may well find it difficult to start over again especially where her husband is so well-established in the United Kingdom, I find, the facts demonstrate on balance that the decision to refuse the Appellant leave was disproportionate.”
10. At paragraph 25 the penultimate bullet point was:
“• [Ms Ibekwe] had no network as such, save for an elderly mother, having been out of Nigeria for a number of years, which would help support her if she were to return back with her husband”.
However, at paragraph 23 of the Decision the Judge accepted that Ms Ibekwe was a well-known film actress and director and did not accept her protestation that she would be unable safely to return and reintegrate.
11. Additionally, put into the mix in the judge’s considerations were factors which did not entitle Ms Ibekwe to “credit” i.e. that she was not a burden on the state and could speak English. As to her ability to speak English see: AM (S.117B) Malawi [2015] UKUT and, following the case of Rhuppiah [2016] EWCA at paragraph 63, Ms Ibekwe could not be said to be financially independent given her dependency on her partner. In all the circumstances, I was invited to find a material error of law and dismiss the appeal.
12. In making his submissions Mr Kotas took me with some care through the guidance in Agyarko. At paragraph 47 it was said:
“It is … the function of the courts to consider individual cases which come before them on appeal or by way of judicial review, and that will require them to consider how the balance is struck in individual cases. In doing so, they have to take the Secretary of State’s policy into account and to attach considerable weight to it at a general level …”
13. At paragraph 52 it was said:
“It is also necessary to bear in mind that the cogency of the public interest in the removal of a person living in the UK unlawfully is liable to diminish - or, looking at the matter from the opposite perspective, the weight to be given to precarious family life is liable to increase - if there is a protracted delay in the enforcement of immigration control.”
That is followed by an observation that:
“In relation to this matter, the reference in the instruction to ‘full knowledge that their stay here is unlawful or precarious’ is also consistent with the case law of the European Court, which refers to the persons concerned being aware that the persistence of family life in the host state would be precarious from the outset. One can, for example, envisage circumstances in which people might be under a reasonable misapprehension as to their ability to maintain a family life in the UK, and in which a less stringent approach might therefore be appropriate.”
14. What clearly emerges from the guidance in Agyarko is that it is a strong claim which will normally be required if it is to succeed outside of the Immigration Rules.
15. Mr Canter began his submissions by taking me to paragraph 16 of the decision and yet again by pointing to the self-direction of the judge. In his submission, the appropriate considerations were clearly at the forefront of the judge’s mind so that it would be wrong to say that the judge had ignored the extra requirements when looking to the wider application of Article 8. Though Agyarko in the Supreme Court had not been published at the time of the decision in the First-tier Tribunal, it was Mr Canter’s submission that the guidance in fact assisted Ms Ibekwe because it was made plain as for example at paragraph 57 that decisions, in any appeal, would be case-specific. What fell further to be considered, however, was whether this was a “Chikwamba” [2008] UKHL 40 case.
“So what on earth is the point of sending her back? Why cannot her application simply be made here? The only answer given on behalf of the Secretary of State is that government policy requires that she return and make her application from Zimbabwe. This is elevating policy to dogma. Kafka would have enjoyed it.” Per Lord Bingham, para 6, Chikwamba
16. Consideration of the guidance which came from that case is to be found in Agyarko and Mr Canter relied in particular on paragraph 51 in which it was said:
“Whether the applicant is in the UK unlawfully, or is entitled to remain in the UK only temporarily, however, the significance of this consideration depends on what the outcome of immigration control might otherwise be. For example, if an applicant would otherwise be automatically deported as a foreign criminal, then the weight of the public interest in his or her removal will generally be very considerable. If, on the other hand, an applicant - even if residing in the UK unlawfully - was otherwise certain to be granted leave to enter, at least if an application were made from outside the UK, then there might be no public interest in his or her removal. The point is illustrated by the decision in Chikwamba –v- Secretary of State for the Home Department.”
17. In his response to the Chikwamba point, Mr Kotas submitted that nowhere in the decision of Judge Iqbal was there a finding in relation to Chikwamba such that it could be said that the application if made from outside of the United Kingdom would necessarily succeed but he went on to say, “If that were her clear finding I would be in difficulty but in fact the judge finds that life would only be ‘difficult’”.
Was there a material error of law?
18. It is clear from the more recent authorities that significant weight is to be given to the policy of the Secretary of State as expressed in the Immigration Rules and all the more so when taken together with s.117B of The Immigration, Asylum and Nationality Act 2002. It is clear, and indeed common ground, that Ms Ibekwe did not meet the Rules although there is no dispute that she enjoys family life in the United Kingdom.
19. I find that there are inconsistent findings made by the judge as identified by Mr Kotas but of more concern is the credit given to Ms Ibekwe in respect of matters which were capable of adding to the public interest in removal if not met but not capable in law of amounting to positive factors. It also seems clear from reading the decision as a whole that the judge came to the view that in respect of Ms Ibekwe there were no insurmountable obstacle to her return. Indeed, it was found that she would be able to work albeit with some difficulty and that whilst it may be difficult for the Sponsor, he too could return with her. There was some evidence as set out in paragraph 23 of the decision that he would be prepared to go back with Ms Ibekwe on a temporary basis, though it would be hard to start over in terms of employment and so on.
20. That it is “hard” does not mean that it is insurmountable. What has to be established are very significant difficulties which could not be overcome or would entail very serious hardship for the applicant or their partner (see Appendix FM EX.2).
21. In my judgment, the Decision is vitiated by errors and cannot stand. I therefore set it aside.
22. This is a case, however in which I find myself able to remake the decision without the need for the matter to be remitted to the First-tier.
The remaking of the Decision
23. This appeal falls to be considered, applying the civil standard, outside the rules for it is common ground that the rules are not met. It is also common ground that this couple enjoy family life in the United Kingdom so that recognising the 5-stage approach in Razgar [2004] UKHL 27, the issue is “proportionality”. The proper approach requires me to strike the fair balance between the interests of the individuals [because there is one family life] in their private or family life and the competing interests of the community as a whole.
24. I am obliged to have regard to section 117B of the Nationality, Immigration and Asylum Act 2002. In this case the relationship was formed when the parties were aware of Ms Ibekwe’s precarious immigration status and so little weight is to be given to the relationship. Further, whilst the Sponsor has an income in excess of £18,600, and the couple are of mature years, Ms Ibekwe is not financially independent. She is able to reintegrate into Nigerian society and has an earning capacity in the film industry. Though the Sponsor would find it “hard” to establish himself in Nigeria that is not the threshold; insurmountable obstacles are not demonstrated. As to the Chikwamba point, if the judge had found that the facts of this case pointed to an inevitable grant of leave to enter it would have been necessary to make that finding. There is no sufficient basis for me to so find.
25. In all the circumstances of this case the balance favours the public interest.

Notice of Decision

The appeal to the Upper Tribunal is allowed, there being a material error of law contained within it. The Decision of the First-tier Tribunal is set aside and remade such that the Appeal in the First-tier Tribunal is dismissed.

Signed Date: 4 April 2017

Deputy Upper Tribunal Judge Zucker