Tribunal decisions

The decision

IAC-BH-PMP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20167/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke-on-Trent
Decision & Reasons Promulgated
On 7th November 2016
On 8th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

MI
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Worrall of Counsel, instructed by Deane & Bolton Immigration
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS
1. As this appeal involves the interests of children I make the following direction:
DIRECTION REGARDING ANONYMITY - RULE 14 OF THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
Background
2. In a renewed application Upper Tribunal Judge Blum gave permission to the appellant to appeal against the decision of Judge of the First-tier Tribunal S Lloyd who dismissed the appeal against the decision of the respondent taken on 14th May 2015 to refuse leave to remain as a partner applying the provisions of Appendix FM and paragraph 276ADE of the Immigration Rules.
3. The grounds of application to the Upper Tribunal contended that the judge was wrong to conclude that the appellant's spouse (the sponsor) had only limited contact with her own children when she had continued such contact at school and also at a play group. Although it was acknowledged that the former spouse of the sponsor being uncooperative, the issue of contact was to be heard by the Family Court. The judge also failed to take into consideration that, although the appellant's spouse was continuing to engage with legal proceedings to enhance her level of access, this could not be achieved without the support of the appellant. The grounds also took issue with the judge's conclusion that the sponsor would have access to medical treatment in Pakistan when this was only available in larger cities such as Islamabad which is five miles' drive from the appellant's family home. The level of healthcare would also be lower than that available in UK. It was wrong for the judge to suggest that the sponsor could re-locate to Pakistan to enjoy family life which would compromise her own health and the facilities which she enjoys as a British citizen.
4. In granting permission Upper Tribunal Judge Blum thought there to be no merit in the ground concerning the availability of medical treatment for the sponsor as the First-tier Judge had carefully evaluated the evidence relating to that matter. However, it was considered that the judge had erred because, having acknowledged that the appellant's wife had contact with her three youngest children, albeit on a limited basis it was arguably wrong to conclude that there would be no breach of Article 8 because the sponsor had previously spent six weeks in Pakistan where the appellant also has children and because the judge (paragraph 39):
"attached no more weight to the Sponsor's family life with her children than I attach to the Appellant's family life with his, because of this I find the Sponsor's family life with her children to be of neutral weight".
Submissions
5. Mr Worrall drew attention to the copy of the contact order for the appellant's wife and letters from her children submitted by representatives on 27th October 2016. However, he properly conceded that these documents post-dated the hearing of the appeal in the First-tier Tribunal. He added that the evidence showed that the sponsor was continuing to establish herself more fully with those of her children living in the United Kingdom.
6. Mr McVeety emphasised that the appeal had fallen outside the provisions of the Rules. The judge was entitled to consider the issue of whether or not the sponsor could go to Pakistan with him and the latest evidence relating to contact was not before the judge as it post-dated the date of hearing. The sponsor is a British citizen and so, if she went to Pakistan, she could return at any stage to visit her children. Further, there was nothing to stop a further application if the circumstances were to change. As to the comment in paragraph 39, he argued that this was not material as the relationship between the appellant, his partner and her children had been fully considered before the comment was made and the decision was not based upon it.
7. In conclusion Mr Worrall emphasised that the appellant's partner had children with whom she as a strong bond which would be damaged if she were to move to Pakistan.
Conclusions
8. The basis upon which permission was granted in the Upper Tribunal is that the comment of the judge, in paragraph 39 of the decision, that:
"I attach no more weight to the Sponsor's family life with her children than I attach to the Appellant's family life with his. Because of this, I find the Sponsor's family life with her children to be of neutral weight".
was arguably the wrong approach because there is no authority to support the contention that the appellant having children in Pakistan cancels out the sponsor's family life with her children in the United Kingdom.
9. It is my conclusion that the judge's comments in paragraph 39 cannot be seen in isolation. Nor can they be said to establish an erroneous principle upon which the human rights claim was decided.
10. From paragraph 22 onwards of the decision the judge gives comprehensive consideration to Article 8 issues on the basis that it had already been conceded (paragraph 21) by the appellant's representative that he could not succeed under paragraph 276ADE and Appendix FM of the Immigration Rules. Although the judge does not specifically set out to identify compelling circumstances which might not be covered by the Immigration Rules and which could lead to a grant of leave to remain, the analysis of Article 8 issues outside the Immigration Rules is comprehensively considered within the framework of the five stage tests set out in Razgar [2004] UKHL 27. The judge fairly accepts that the parties have been in a genuine matrimonial relationship since 2012 but, in considering the appellant's relationship with the children of the sponsor, reaches the cogently reasoned conclusion that he is not in a genuine and subsisting parental relationship with those children. In doing so the judge also reaches the conclusion, open to him, that the sponsor herself only had very limited contact with those children and that, at the time of the hearing, the terms of a limited contact order were not being complied with.
11. In examining the issue of proportionality the judge properly had regard to the provisions of Section 117B of the Nationality, Immigration and Asylum Act 2002 taking into consideration an inability of the parties to meet the financial requirements of the Rules in the absence of a genuine and subsisting relationship with the sponsor's children. The judge also refers specifically to the provision in sub-Section (iv) of Section 117B that little weight should be given to a relationship formed with a qualifying partner that is established by a person at a time when the person is in the UK unlawfully. The judge emphasises the illegal status of the appellant when the relationship commenced. The judge then gives full consideration to the issue of the sponsor's potential relocation to Pakistan and the presence of her children in the United Kingdom. It was not wrong for the judge to consider the "insurmountable obstacles" test. In doing so the judge was able to conclude that there was nothing in particular that would prevent the appellant from returning to Pakistan. The sponsor's medical and family position is considered acknowledging that there are ongoing contact issues. The judge properly concludes that the sponsor has a family life link with her children in the United Kingdom but qualifies the effect of this (paragraph 38) by referring to evidence that the sponsor was able to visit Pakistan and had done so in the previous year. He was entitled to conclude that the sponsor was capable of travel, or extended visits to Pakistan which, I infer, would enable the Article 8 family life to be maintained.
12. It was only after consideration of all of the above matters that the judge made the comment in paragraph 39 which suggests that there may be a comparison to be drawn between the family life situation for both appellant and sponsor who each had children in Pakistan. It is certainly not the case, in my conclusion, that the judge based the decision that the respondent's decision was proportionate, because he was unable to attach anymore weight to the sponsor's family life with her children and the appellant's family life with his in Pakistan. It was simply a comment about the split family nature of the respective family relationships. Even if those comments can be regarded as unwise they are not material to the cogently reasoned conclusions in the preceding sixteen paragraphs of the decision involved with Article 8 considerations. Thus, I conclude that the decision of the First-tier Judge does not show a material error on a point of law.
Notice of Decision
The decision of the First-tier Tribunal does not show a material error on a point of law and shall stand.
Anonymity
As this appeal has involved the interests of children I make the anonymity order which appears at the beginning of this decision.

Signed Date

Deputy Upper Tribunal Judge Garratt