Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19860/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 4 November 2016
On 15 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

LOUIS JOSEPH RONALD DELARY SIMPSON
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Iengar (counsel) instructed by Stocker & Co LLP
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer

DECISION AND REASONS
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Walker promulgated on 23 February 2016, which dismissed the Appellant's appeal on all grounds.
Background
3. The Appellant was born on 13/08/1946 and is a national of Australia. The appellant entered the UK as a visitor on 11 September 2014 with leave to enter until 11 June 2015. On 2 March 2015the appellant submitted an application for leave to remain in the UK as the spouse of a person present and settled in the UK.
4. On 12 May 2015 the Secretary of State refused the Appellant's application for leave to remain in the UK.
The Judge's Decision
5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Walker ("the Judge") dismissed the appeal against the Respondent's decision. Grounds of appeal were lodged and on 21 September 2016 Judge Hollingworth gave permission to appeal stating
"1. At paragraph 31 of the decision the judge has stated "for completeness sake I will now deal with the appellant's appeal as a freestanding article 8 issue"
2. It is arguable that in dealing with article 8 the judge has failed to set out a sufficient analysis and failed to set out the application of the criteria pursuant to section 117. It is arguable that the judge's analysis of proportionality is inadequate. The appeal has been dismissed on human rights grounds in addition to being dismissed under the immigration rules. It is arguable that in the absence of a sufficient analysis it is unclear what weight has been attached to which factors and the degree of such weight in reaching the conclusion set out.
3. At paragraph 32 of the decision the judge has found that the appellant's return to Australia or elsewhere will not result in interference with his right to respect for his family or private life of such gravity as to engage article 8. The judge refers to having dealt with this matter. Nevertheless, despite finding that article 8 is not engaged the judge has continued to apply the remaining Razgar criteria.
4. It is unclear in these circumstances why the judge has proceeded to refer to carrying out a careful balancing exercise in relation to proportionality, without setting out an arguably sufficient analysis. The judge has not referred to proceeding to consider the remaining Razgar criteria on a further or alternative basis"
The Hearing
6.(a) Ms Iengar for the appellant moved the grounds of appeal. She reminded me that the appellant cannot fulfil the requirements of the immigration rules because he entered the UK as a visitor and applied for leave to remain before his existing leave to enter as a visitor expired. She accepted that the appellant cannot therefore benefit from paragraph EX.1. Told me that the appellant's claim for leave to remain on article 8 ECHR grounds out proceeds out-with the rules.
(b) Ms Iengar took me to [30] of the decision and told me that it is there that the Judge starts to consider article 8 out-with the rules. She reminded me that the decision is 34 paragraphs long, and told me that between [30] and [34] the Judge gives inadequate consideration to the proportionality of the respondent's decision. She reminded me that at [30] the Judge found that there are no serious and compelling circumstances which prevent the appellant from making an application for leave to enter from abroad. She told me that there are no findings of compelling circumstances in relation to the appellant's article 8 claim.
(c) Ms Iengar reminded me that at [31] the Judge cites R(Razgar) v SSHD [2004] UKHL 27, but argued that despite referring to that case the Judge did not conduct a proportionality assessment. It is only at [34] that the Judge properly makes reference to proportionality, but there he simply makes a bald statement that he has
"carried out a careful balancing exercise ?"
Ms Iengar told me that the decision discloses that the Judge did not, in fact, carry out that exercise
(d) Ms Iengar told me that is not clear from the decision whether the Judge had taken account of section 117B of the 2002 Act. She told me that the appellant and his wife could meet the requirements of the rules because they are in a genuine and subsisting marriage and their joint income far exceeds the financial requirements.
(e) Ms Iengar reminded me of the case of Beoku-Betts (FC) v SSHD 2008 UKHL 38. She told me that no consideration at all has been given to the impact of the decision on the appellant's wife, nor has the Judge factored the appellant's wife's article 8 rights into any proportionality assessment that he may have carried out. She urged me to allow the appeal & to set the Judge's decision aside.
7.(a) For the respondent, Mr Jarvis told me that the decision does not contain any errors, material or otherwise. He told me that the proportionality assessment carried out concludes that article 8 is not engaged, & that is the fulcrum of this decision. He told me that at [32] the Judge finds that the interference with family or private life is not of such gravity as to engage article 8. It is there that the judge specifies that his findings from [26] to [30] drawn him to that conclusion.
(b) In relying on the case of AM (S 117B) Malawi [2015] UKUT 260 (IAC), Mr Jarvis argued that section 117B considerations are irrelevant because at best they are neutral, at worst they worked against the appellant - so that the absence of reference to section 117B of the 2002 Act is immaterial. He told me that at [30] the Judge finds that there are no compelling circumstances. He argued that, structurally, that finding is out of place, but that is an argument of style over substance. The fact that the finding is there is sufficient.
(c) Mr Jarvis urged me to dismiss the appeal and allow the Judge's decision to stand.
Analysis
8. In R (on the application of Chen) v SSHD (Appendix FM - Chikwamba - temporary separation - proportionality) IJR [2015] UKUT 00189 (IAC) it was held that (i) Appendix FM does not include consideration of the question whether it would be disproportionate to expect an individual to return to his home country to make an entry clearance application to re-join family members in the U.K. There may be cases in which there are no insurmountable obstacles to family life being enjoyed outside the U.K. but where temporary separation to enable an individual to make an application for entry clearance may be disproportionate. In all cases, it will be for the individual to place before the Secretary of State evidence that such temporary separation will interfere disproportionately with protected rights. It will not be enough to rely solely upon the case-law concerning Chikwamba v SSHD [2008] UKHL 40. (ii) Lord Brown was not laying down a legal test when he suggested in Chikwamba that requiring a claimant to make an application for entry clearance would only "comparatively rarely" be proportionate in a case involving children (per Burnett J, as he then was, in R (Kotecha and Das v SSHD [2011] EWHC 2070 (Admin)). However, where a failure to comply in a particular capacity is the only issue so far as the Rules are concerned, that may well be an insufficient reason for refusing the case under Article 8 outside the rules.
9. For the appellant, it is argued that his wife is a British citizen and that the appellant can make a successful application from Australia or elsewhere, so no purpose is served in forcing temporary separation on this family.
10. The facts in this case are that the appellant is married to a British citizen. When the appellant entered the UK he intended to travel back to either Malaysia or Australia.
11. As the appellant entered the UK as a visitor, he cannot meet the requirements of appendix FM (paragraph E-LTRP2.1). The appellant has a genuine and subsisting relationship with his British citizen wife.
12. The effect of the respondent's decision might be that the appellant returns to Malaysia or Australia. The importance of the appellant's wife's job has been emphasised. She is a British citizen; she can remain in the UK and pursue her career. She can visit the appellant in either Australia or Malaysia and can maintain contact with him by instantaneous communication.
13. The other option is that both the appellant and his wife return to Australia or Malaysia and live together for six months while they wait for the appellant's application for entry clearance to be considered. If the appellant and his wife follow this option, then they remain together. Their entire case is plead on the basis that they cannot face any degree of separation. If that is their "worst case scenario", then the simple decision that they have to make is that the appellant's wife gives up her employment to honour the commitment she recently made to the appellant in the knowledge that he had no right to remain in the UK.
14. The worst that can happen to the appellant and his wife is that there might be temporary separation. If what is said by the appellant is entirely true, then the choice that will be made by the appellant and his wife is that the appellant will return to Malaysia or Australia and have a temporary absence from the UK of perhaps six months.
15. The Judge's balancing exercise is unambiguously carried out between [27] and [30] of the Judge's decision. At [30], after considering the facts and circumstances of the appellant's case, the Judge finds that there are neither serious nor compelling circumstances which prevent the appellant from making an application for entry clearance from abroad.
16. It is true that the Judge uses confused language and his logic appears to wander between [30] and [34], but despite that apparent lack of discipline, the Judge arrives at the correct conclusion. He takes appropriate guidance from the case of Chen, and directs himself (in law) properly before reaching evidence based conclusions. There is no merit in any criticism of the Judge's fact finding exercise.
17. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the Judge draws from the primary data were not reasonably open to him or her.
18. It is a matter of concession that the appellant cannot fulfil the requirements of the Immigration rules. The Judge makes it clear that there are neither compelling nor compassionate circumstances which merit consideration of the appellant's article 8 rights out-with the Immigration rules. In any event, if this appellant has established family life in the UK within the meaning of article 8 of the 1950 Convention, then the Judge finds find that (on the facts of this case) the respondent's decision is not a disproportionate interference with those rights.
19. The Judge's decision is not beyond criticism, but it does not contain a material error of law.
CONCLUSION
No errors of law have been established and the Judge's decision promulgated on 23 February 2016 stands.
DECISION
The appeal is dismissed.

Signed Date 12 November 2016

Deputy Upper Tribunal Judge Doyle