Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20061/2015

THE IMMIGRATION ACTS

Heard at Field House, London
Determination & Reason Promulgated
On 20 March 2017
On 21 March 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MEHRDAD AHMADI
Respondent

Representation:
For the appellant: Ms A Fijiwala, Senior Home Office Presenting Officer
For the respondent: Mr G Lea, Counsel

DECISION AND DIRECTIONS

1. In a decision dated 8 August 2016 the First-tier Tribunal allowed the respondent’s appeal against a decision dated 12 May 2015 refusing his application for leave to remain in the United Kingdom.

2. The First-tier Tribunal accepted the credibility of the respondent, a citizen of Iran and his wife, a citizen of Turkey, and therefore accepted that they have been in a genuine and subsisting relationship since 2012.

3. The First-tier Tribunal considered whether there are insurmountable obstacles to family life taking place outside the United Kingdom, in Iran or Turkey, in accordance with EX.1 of the Immigration Rules. Both representatives accepted that the appeal before the First-tier Tribunal was on human rights grounds only and there should have been a consideration of the issue of insurmountable obstacles for the purposes of Article 8 of the ECHR. Both representatives also accepted it was still relevant to determine whether the First-tier Tribunal’s analysis of insurmountable obstacles contains a material error of law.

4. I accept that the First-tier Tribunal properly directed itself to “whether there are insurmountable obstacles to family life” continuing outside of the UK at [25] and gave reasons for finding that there would be such obstacles in Iran for the reasons provided at [25 and 26].

5. However, the SSHD also argued that family life could take place in the alternative in Turkey, and the First-tier Tribunal gave reasons for accepting the respondent’s submissions in response to this at [27 and 28].

6. In my judgment, there are several errors of law in the First-tier Tribunal’s approach to whether there are insurmountable obstacles for family life in Turkey.

7. First, the First-tier Tribunal has not resolved the apparent factual dispute between the parties regarding the respondent’s ability to reside in Turkey with his wife. The First-tier Tribunal accepted that he does not have a right to be in Turkey but did not address the SSHD’s submission that he would be able to make an application to reside there with his wife.

8. Second, the First-tier Tribunal has undoubtedly identified difficulties for the wife in returning to Turkey: the security situation is uncertain, she would not be able to develop her tailoring business in Turkey, she would lose her recently acquired indefinite leave to remain status. However, the First-tier Tribunal has not explained or reasoned why these difficulties meet the high threshold required by “insurmountable obstacles” within Article 8 jurisprudence - see R (Agyarko and Ikuga) v SSHD [2017] UKSC 11 at [43], or within the Immigration Rules – see Agyarko at [48 and 73].

9. Third, there is some confusion in the decision of the First-tier Tribunal regarding the test to be applied. Although insurmountable obstacles is referred to at [25], the test of reasonableness is then applied at [28].

10. Having heard submissions from both representatives I indicated that the three errors of law identified above are such that the decision should be set aside and remade. Both representatives agreed that the decision should be remade by the First-tier Tribunal given the following: although some of the evidence is undisputed, there remains an outstanding factual dispute regarding the respondent’s ability to live in Turkey with his wife. In addition, although the First-tier Tribunal referred to the income requirements not being met, this is difficult to reconcile with the evidence available. This demonstrates that the respondent’s wife earns above the minimum salary threshold from her self- employment as well as her part-time employment.

11. I have had regard to para 7.2 of the relevant Senior President’s Practice Statement and the nature and extent of the factual findings required in remaking the decision, and I have decided that this is an appropriate case to remit to the First-tier Tribunal.
Decision
12. The decision of the First-tier Tribunal involved the making of a material error of law. Its decision cannot stand and is set aside.
13. The appeal shall be remade by First-tier Tribunal de novo.
Directions
(1) The appeal shall be reheard de novo by the First-tier Tribunal sitting at Taylor House (TE: 1.5 hrs) on the first date available.
(2) 28 days before the hearing date the respondent shall file a comprehensive bundle that includes all additional evidence relied upon together with a skeleton argument.

Signed:

Ms M. Plimmer
Judge of the Upper Tribunal

Date:
20 March 2017