Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20307/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12th January 2017
On 26th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

mr Usman Zaman
(ANONYMITY DIRECTION not made)
Respondent

Representation:

For the Appellant: Ms Z Ahmed, Home Office Presenting Officer
For the Respondent: Mr A Miah, Lee Valley Solicitors

DECISION AND REASONS

1. Although this is an appeal by the Secretary of State I refer to the parties as they were in the First-tier Tribunal.
2. The Appellant, a national of Pakistan, appealed to the First-tier Tribunal against a decision made by the Secretary of State on 20th May 2015 refusing his application for leave to remain as the partner of Ms Ume Kalsoom. First-tier Tribunal Judge Andonian allowed the appeal and the Secretary of State now appeals with permission to this Tribunal.
3. The background to this appeal is that the Appellant entered the UK as a Tier 4 Student on 7th June 2010 with leave to enter until November 2011. He was subsequently granted an extension of stay until 13th April 2014 but on 2nd April 2013 his leave to remain was curtailed following a notification from the college he was attending in relation to his non-attendance. He submitted a further application for leave to remain as a Tier 4 Student but that application was rejected as invalid. A further application was submitted and was refused. On 22nd January 2015 the Appellant submitted an application for leave to remain on the basis of his relationship with Ms Kalsoom.
4. The Secretary of State refused that application because, although evidence had been submitted in relation to the Appellant's partner's income, he had not submitted required evidence including an employer's letter confirming his partner's employment for six months prior to the application date, corresponding payslips and bank statements. The Secretary of State accepted that the Appellant is in a genuine and subsisting relationship with his British partner. The Secretary of State also acknowledged that the Appellant's partner had lived in the UK for 28 years and is in employment in the UK but concluded that there are no insurmountable obstacles to the Appellant and his partner continuing their relationship in Pakistan under Ex 1(b) of Appendix FM. The Secretary of State considered the application under 276ADE (1) in relation to private life and concluded that the Appellant had not demonstrated that there were very significant obstacles to his integration in Pakistan under 276ADE (1)(vi).
5. The First-tier Tribunal Judge considered the evidence of the Appellant's partner's earnings and oral evidence from the Appellant and his wife. The judge reached his conclusions at paragraphs 8 to 11 of the decision. The judge took into account the fact that the Appellant and his partner are in a genuine relationship and said:
"?the only reason that the application was refused was because the Appellant did not have wage slips for his wife for six months at the time of the application but certainly has them now, that on human rights grounds it would be disproportionate for him to be removed."
6. The judge also took into account that in the circumstances of this case it would not be right to send the Appellant back to Pakistan for him to obtain entry clearance to return as a married spouse [9].
7. The Secretary of State contends in the Grounds of Appeal that the judge made a material misdirection in law and failed to give any adequate reasons. The first ground contends that the judge failed to give any or adequate consideration to the principles of Section 117B of the Nationality and Immigration Act 2002. The second ground contends that the judge failed to explain why it would be disproportionate to expect the Appellant to return to make a fresh application for entry clearance with the correct specified evidence. Reliance was placed on the decision in R (On the application of Chen) v Secretary of State for the Home Department (Appendix FM - Chikwamba - temporary separation - proportionality) IJR [2015] UKUT 189 (IAC). The third ground contends that the First-tier Tribunal Judge failed to apply the decision in SS (Congo) [2015] EWCA Civ 387 and failed to identify if there was anything compelling about this case before proceeding onto an Article 8 analysis. In the fourth ground the Secretary of State contends that, in suggesting that the only reason the Appellant was refused was because the wage slips were not provided, the judge erred in fact and law because the judge failed to appreciate that the application was also refused because the Sponsor was not earning above the income threshold, did not have the employer's letter and had not been employed for six months at the date of the application. It is contended that the judge appears to be deciding that the Appellant only missed by a small margin which is erroneous but in any event the de-minimis principle has been firmly disapproved in immigration appeals in the decision in Chau Le (Immigration Rules - de minimis principle) [2016] UKUT 186 (IAC). It is submitted that in all of the circumstances it is plain that the First-tier Tribunal Judge has used Article 8 as a general dispensing power.
8. At the hearing before me Ms Ahmed submitted that it was material that the First-tier Tribunal Judge failed to consider Section 117B of the 2002 Act. She submitted that a proper consideration of the factors set out in Section 117B could have led to a different decision. Mr Miah submitted that there was no material error in relation to Section 117B because the considerations set out in Section 117B were already mirrored in the First-tier Tribunal Judge's decision.
9. Ms Ahmed further contended that the judge failed to appreciate the reasoning in Chen and referred to in paragraphs 35, 36 and 39 of that decision. She submitted that the judge failed to appreciate that, because the Appellant had not passed the English language test, he would not be able to meet the requirements and she submitted that the judge undertook no scrutiny of the evidence in relation to whether temporary separation would be an interference before concluding at paragraph 9 that it would not be right to send the Appellant back to apply for entry clearance.
10. Ms Ahmed submitted that the judge failed to consider paragraph 51 of SS (Congo) and failed to identify compelling circumstances why the consideration was appropriate outside the Immigration Rules. In relation to Chau Le Ms Ahmed submitted that it was clear that the judge allowed this appeal on the basis that the Appellant almost met the requirements of the Rules.
11. Mr Miah submitted that the judge did undertake sufficient and adequate consideration of all the factors, for example the judge referred to the Appellant's partner's mother-in-law having been murdered in Pakistan, the judge referred to the fact that the Appellant and his partner and her adult children were a family unit and that he is regarded as their stepfather.
Error of law
12. The difficulty here is that the only real assessment of the particulars of the Appellant's case was a particularly brief consideration at paragraphs 8 and 9 of the decision. I have looked at the assessment undertaken by the judge at paragraphs 8 and 9 and in my view the judge has not given adequate reasons for his decision that the decision to refuse the Appellant's application is disproportionate to his right to family life under Article 8.
13. In addition the judge failed to make any assessment of the Appellant's case under the Immigration Rules. The Secretary of State had considered the application under Appendix FM and paragraph 276ADE of the Immigration Rules but the judge failed to engage with the Rules at all.
14. Further, having apparently engaged in an assessment of the Appellant's appeal under freestanding Article 8(without explaining why he went on to do so), the judge completely failed to take into account the statutory considerations in Section 117B. Section 117B places a statutory obligation on a First-tier Tribunal Judge to consider the factors set out therein in considering the public interest. It is clear that the judge here did not do so. Whilst of course the judge need not rehearse Section 117B and set out all of the factors therein, the judge must consider the substance of those factors and plainly the judge did not do so here. I consider that this amounts to a material error of law in this case.
15. For all of these reasons it is my view that the judge made material errors of law. The decision of the First-tier Tribunal therefore cannot stand. Ms Ahmed confirmed that there was no challenge to the facts in this case. I therefore preserve the findings of fact made by the judge at paragraph 8 but I set aside the decision of the First-tier Tribunal.
Remaking the decision
16. I heard submissions from Ms Ahmed and Mr Miah in relation to remaking the decision. Ms Ahmed submitted that the starting point is that the Appellant does not meet the requirements of the Immigration Rules. In terms of considering the appeal outside the Immigration Rules she relied on SS (Congo) paragraphs 31 to 33 and 51. She submitted that there are no compelling circumstances in this case as both the Appellant and his wife are adults, the Appellant's partner's children are adults and able to look after themselves. She accepted that there is family life in this case. In terms of Section 117B she relied on the case of Rajendran [2016] UKUT 00138 and submitted that precariousness applies to family life as well as to private life. Family life in this case was formed when the Appellant did not have settled status. In terms of Chen she relied on paragraphs 36, 39, 41 and 42. She submitted that the burden is on the Appellant to show that any temporary separation would be disproportionate. Here it would not be disproportionate as the Appellant's partner's children are adults.
17. Mr Miah relied on paragraph 2 of Rajendran. He submitted that integration was not an issue in this case as the Appellant speaks English and that the Appellant and his partner are maintaining themselves and are financially independent. He submitted that the Appellant entered the UK in 2010 as a student and at that time he would have had to satisfy the Entry Clearance Officer that he spoke English and had the required funds. His wife has been in the UK since 1987 and her ties to the UK are established by her two adult children with whom she lives as a family unit. He submitted that the Appellant speaks English and relied on the City & Guilds certificate submitted on his behalf. He submitted that looking at the case in the round the factors in Section 117B do not dilute a conclusion that the Appellant's removal would be disproportionate. He submitted that I am entitled to make positive findings to tip the balance in favour of the Appellant whose credibility has not been challenged.
Remaking the Decision
The Immigration Rules
18. Although the judge's findings of fact have not been challenged he did not make significant factual findings. The only findings are at paragraph 8. The judge appears to have accepted the Appellant's evidence.
19. In his witness statement the Appellant says that his wife has been working regularly and her annual income is more than the required threshold but acknowledged that at the time of the application she had changed jobs and she had not been in her second job for six months. He said that his wife's mother was murdered in Pakistan and that she suffered a lot of trauma and suffered a lot in her previous relationship and that since they met there is a lot of pleasure in being in each other's lives. He said that he could not make a fresh application for leave to remain because he has been unable to pass the relevant English test because he has been unable to obtain his original passport from the Home Office. He said that his wife fears for her life in Pakistan and that she cannot go there and neither can he because he believes that he would be a target too. He said that his father died in July 2016 and he had been unable to return there. He said that he believes that there are insurmountable obstacles to their family life continuing in Pakistan.
20. In her witness statement the Appellant's wife accepted that she did not have six months' pay slips for both of her jobs at the time of the application because she had changed jobs before that. She said that she is afraid to go to Pakistan because of her mother's murder and that she is afraid of her husband going back.
21. The Appellant's bundle contains a number of documents including press reports of the murder of Wiseem Naz, a 70-year-old school principal and evidence of her identity. The Appellant's bundle also contains a City & Guilds certificate in international English for speakers of other languages in relation to the Appellant. The Appellant's bundle also contains pay slips and HMRC documents in relation to the Appellant's wife.
22. I begin by considering the Immigration Rules. In the reasons for refusal letter the Respondent refused the application under Appendix FM R-LTRP1.1 on the basis that the Appellant had not submitted the required evidence to demonstrate that his partner met the financial threshold. In the reasons for refusal letter I note that there is no allegation that the Appellant falls for refusal under Section S-LTR suitability requirements. There is no allegation that the Appellant does not meet the requirements of E-LTRP1.2 to 1.12 and E-LTRP2.1. The Respondent therefore considered whether exception Ex1 applies. That is my starting point for consideration of this appeal.
23. Ex 1 of Appendix FM provides as follows:

"EX.1. This paragraph applies if
(a)
(i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application ; and
(ii) it would not be reasonable to expect the child to leave the UK; or
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.

EX.2. For the purposes of paragraph EX.1.(b) "insurmountable obstacles" means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner."
24. There is no evidence that the Appellant has a parental relationship with a child under 18 therefore I go on to consider Ex 1(b). It is asserted that the fact that the Appellant's mother was murdered is a barrier to her return to Pakistan however there is no detail as to how this prevents her returning there nor is there any evidence as to how this prevents the Appellant returning there. There is no detail or evidence as to how this might place the Appellant or his partner in danger in Pakistan or in any particular part of Pakistan. Although it appears that the Appellant and his wife live with her adult children there is no evidence about or from them. In fact the application form shows that the Appellant's wife's youngest child, who was then aged 16, lived with other adult siblings at that time as the Appellant was said to be looking for bigger accommodation. There is no evidence before me as to the accommodation in which the family currently reside. There is no evidence as to the nature of the Appellant's relationship with them or as to whether his return to Pakistan or the return of their mother would have any impact on them. There is no evidence that the relationship with the adult children poses any obstacle to the Appellant and his wife residing in Pakistan or elsewhere. There is a real dearth of evidence as to the circumstances of the Appellant and his wife in the UK and as to their likely circumstances in Pakistan. Accordingly there is insufficient evidence to demonstrate that there are insurmountable obstacles to the family life of the Appellant and his wife continuing outside the UK.
25. I have considered paragraph 276ADE(1)(vi) in the context of the evidence before me. As the Appellant has been in the UK since 2010 the appropriate provision is 276ADE (1) (vi) which requires the Appellant to show that "there would be very significant obstacles to [his] integration into the country to which he would have to go if required to leave the UK." In light of my findings above and given that he is a national of Pakistan, speaks the language, and lived there until 2010, I am not satisfied that the Appellant has demonstrated that there would be very significant obstacles to his reintegration in Pakistan.
Article 8
26. In deciding how to approach human rights and Article 8 I have considered the relevant case law including the decision of the Upper Tribunal in R (on the application of Esther Ebun Oludoyi & Ors) v Secretary of State for the Home Department (Article 8 - MM (Lebanon) and Nagre) IJR [2014] UKUT 00539 (IAC) which makes it clear that there is a need to look at the evidence to see if there is anything which has not already been adequately considered in the context of the Immigration Rules and which could lead to a successful Article 8 claim. There is nothing in the evidence before me which has not been considered in my assessment of the Immigration Rules above.
27. However, for the purposes of completeness I consider the appeal under Article 8 in accordance with the guidance set out by Lord Bingham in R v SSHD ex parte Razgar [2004] UKHL 27. It was not disputed by Ms Ahmed at the hearing and I accept that the Appellant is married to his wife and that they have a family life together in the UK. If the Appellant's wife does not go to Pakistan with him there will be an interference with that family life. The Appellant's return to Pakistan will interfere with any private life he has established in the UK. I accept that such interference would have consequences of such gravity as potentially to engage the operation of Article 8. As the appellant does not meet the requirements of the Immigration Rules any interference is in accordance with the law.
28. In considering proportionality I consider the same factors as set out above including the scant evidence as to the nature and extent of any private life established by the Appellant in the UK and the dearth of evidence in relation to the Appellant's relationship with his wife's adult children and details about their living arrangements. There is no evidence as to how the murder of the Appellant's wife's mother would impact on his return to Pakistan. I take into account the lack of evidence to show that there are any obstacles to the Appellant returning to Pakistan with his wife. I weigh as a significant factor the fact that the Appellant cannot meet the requirements of the Immigration Rules.
29. In considering proportionality I also take account of the public interest considerations set out in section 117 of the Nationality, Immigration and Asylum Act 2002. It appears that the Appellant speaks English. There is no evidence that the Appellant is in receipt of benefits. I take account of the guidance in Rajendran and I note that the appellant's private and family life in the UK has been established whilst his immigration status was precarious.
30. The appellant may choose to return to Pakistan, with or without his wife, and apply for entry clearance to return to the UK. This is a choice for the couple to make. As the Appellant does not have the required English language certificate I cannot find that he can meet the requirements for entry clearance. Given my findings above that there are no insurmountable obstacles to family life being enjoyed in Pakistan and the lack of detailed evidence in this case I cannot find that a temporary separation to enable the Appellant to make an application for entry clearance would be disproportionate.
31. Weighing all of these factors I am satisfied that the decision to refuse the application is proportionate to the respondent's legitimate aim of the maintenance of an effective system of immigration control for the prevention of disorder or crime or to secure the economic well-being of the country.
Notice of Decision
32. The decision of the First-tier Tribunal contains a material error of law and I set it aside.
33. I remake the decision by dismissing the Human Rights appeal.
34. No anonymity direction is made.

Signed Date: 25 January 2017

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 25 January 2017

Deputy Upper Tribunal Judge Grimes