Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20507/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th November 2016
On 16th November 2016

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

JANU LAKHAN PAL
(anonymity direction NOT MADE)
Respondent

Representation:
For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: In person

DECISION AND REASONS

1. Although this is an appeal by the Secretary of State, I shall refer to the parties as in the First-tier Tribunal. The Appellant is a citizen of India who was born on 11th July 1988. His appeal against the refusal of leave to remain under Appendix FM and Article 8 was allowed by First-tier Tribunal Judge M A Khan in a decision promulgated on 20th May 2016.

2. The Appellant entered the United Kingdom as a Tier 4 student on 22nd October 2010. He was granted further leave as a student which was eventually curtailed because his sponsor lost his licence. Whilst his Tier 4 student appeal was pending, he met his wife and they were married. He accordingly applied for leave to remain on the basis of his family and private life in the UK. The Respondent refused the Appellant's application on 5th May 2015.

3. The Appellant appealed to the First-tier Tribunal. In summary the judge made the following findings:

"34. I find that the appellant has established family life with his wife in the UK. If he is removed to India and his wife has to join him in that country I find that it will create greater imbalance in her life and which I find amounts to insurmountable obstacles for her to settle with her husband in India. I therefore find that in evidence that Lord Bingham's principle 2 is engaged and her Article 8 of the ECHR rights are breached to the extent that the interference will be disproportionate to the legitimate aims.

35. There is the option for the appellant to return to India on his own and make an application for entry clearance as a spouse. It is not clear has [sic] to how long the waiting process will take for him to rejoin his wife in the UK. This will create a period of separation between them. Both the appellant and his wife stated that she will visit him while in India but she would have to leave her employment to do that. If the wife has to give up her employment, this would in return affect the appellant's chances of obtaining his entry clearance. The respondent accepts that the appellant and his wife are in a genuine and sincere relationship. I find on the evidence before [sic] that the appellant's return to India to merely obtain an entry clearance to the UK will create insurmountable obstacles for this couple. I find that the appellant's and his wife's family/private life rights under Article 8 of the ECHR will be breached and will be disproportionate to the legitimate aims."

4. The judge then went on to consider Section 117B and concluded at paragraph 39:

"The appellant's [sic] has established a relationship with his British wife under section 117B(4)(b) of the 2014 Act. The Appellant is not a burden on the tax payer and he has integrated into society. I find that the Appellant meets the requirements of the 2014 Act and the Immigration Rules encompassing Article 8 of the ECHR."

5. The Secretary of State appealed on the grounds that the judge had failed to give adequate reasons for his findings on a material fact and the judge had made a material misdirection in law. It was submitted that it was not clear from the decision whether the judge had allowed the appeal under the Immigration Rules or on Article 8 grounds and the conclusions were equally confusing.
6. Secondly, the judge had failed to consider the situation that family and private life had been started when the immigration status of the Appellant was unclear. The judge should have considered, in the proportionality assessment, that the Appellant could return to make an entry clearance application. The judge failed to take into account Section 117B(5) [sic]. Had the judge done he would have reached a different conclusion.

7. Permission to appeal was granted on the basis that it was arguable that the decision was unclear as to whether it was allowed under the Rules or Article 8 and that the judge failed to understand the legal background to spouse/partner cases. The Sponsor had met the Appellant when he had an outstanding appeal. The judge failed to consider the possibility of an application for entry clearance from abroad and failed to have proper regard to Section 117B of the 2002 Act.

Submissions

8. Mr Melvin submitted written submissions stating that it was unclear whether the judge had found there were insurmountable obstacles to the spouse and Appellant enjoying family life in India under EX.1(b) and to firstly consider an appeal in relation to the Immigration Rules and, if they could not be met, consider whether there were compelling circumstances outside the Rules. If the Immigration Rules could not be met then the judge should consider whether there were compelling circumstances that were not covered by the Rules before considering proportionality following Singh and Khalid [2014] EWCA Civ 74. Accordingly, the judge had misdirected himself.

9. Further, the judge should have been aware of the guiding principles in Agyarko [2015] EWCA Civ 440 and confirmed in Wasif [2016] EWCA Civ 82. The Court of Appeal in Agyarko sets out the principles to be considered in precarious family life appeals when assessing the question of insurmountable obstacles. It is a stringent test or high hurdle and the mere fact that the spouse has lived in the UK all their life and was reluctant to leave was not an insurmountable obstacle. It is submitted that had the judge applied the ratio of Agyarko then he would have found that there were no insurmountable obstacles in this case.

10. In oral submissions, Mr Melvin stated that the decision was confusing. The judge had failed to give adequate reasoning for finding that there were 'insurmountable obstacles'. He had failed to follow relevant case law and his conclusions were not open to him on the evidence before him. The facts in this case fell far short of the 'insurmountable obstacles' test in Agyarko. The judge's decision was irrational on the facts as he found them. The threshold was a high one and the judge had failed to apply the test set out by the Court of Appeal.

11. Mr Pal submitted that he had not broken any rules and had not remained in the UK illegally. He had married two and a half years ago. His wife would go to India for a holiday, but not to live. He could make an application from India, but it would make no difference if he applied in India or in the UK. It was a waste of time and money. If he went back he would be refused on the same basis and he and his wife would be separated forever.

Discussion and Conclusion

12. The following facts were found by the judge. The Appellant would have no problem reintegrating in India. However, his wife did not want to live in India, she did not want to give up her job, all her family were in the UK and her grandmother had cancer. The Appellant's wife did not speak the language and did not understand the culture there. She was aware of the Appellant's immigration status before they married. If he returned to India, she would sponsor him to come back to the UK.

13. I confirmed the relevant facts with both the Appellant and his wife at the appeal hearing. The Appellant could return and obtain entry clearance and his wife would support him. There would be a separation and the Appellant's wife would visit him in India. However, the Appellant was concerned that the separation could be prolonged and might indeed be permanent if he was unable to satisfy the Rules.

14. Paragraph EX.2 of the Immigration Rules sets out the definition of 'insurmountable obstacles' for the purposes of EX 1(b): "[I]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."

15. On the facts found by the judge, applying the 'insurmountable obstacles' test in the Immigration Rules and in Agyarko it could not be said that there were insurmountable obstacles to family life continuing outside the UK. It is understandable that the Appellant's wife as a British citizen does not want to leave the UK and wants to remain here, but the evidence before the First-tier Tribunal Judge failed to show very significant difficulties which would entail very serious hardship.

16. I find that the judge erred in law in his application of the 'insurmountable obstacles' test to the facts as he found them. His conclusion at paragraph 34 that there were insurmountable obstacles was irrational given the definition in the Rules and the decision of the Court of Appeal in Agyarko. The judge's finding at paragraph 35 was also irrational. Requiring the Appellant to return to India to obtain entry clearance did not amount to an insurmountable obstacle. The Appellant was willing and able to do so and his wife would support him and visit him.

17. Further, the judge erred in law in his application of section 117B(4)(b) of the 2002 Act which states 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's immigration status is precarious. The Appellant met his partner at a time when his appeal against the refusal of leave to remain as a student was pending. His immigration status was precarious. The judge failed to properly direct himself and his conclusion at paragraph 39 was one which was not reasonably open to him on the evidence before him.

18. I find that the judge erred in law in his assessment of insurmountable obstacles. The Appellant could return to India to obtain entry clearance and his wife would visit, that cannot amount to an insurmountable obstacle to family life continuing outside the UK. Further, the judge erred in law in his application of section 117B(4)(b). Accordingly, I set aside his decision, dated 20th May 2016, and I re-make it as follows.

19. There are no insurmountable obstacles to the Appellant and his wife returning to India and continuing family life there. The Appellant has lived in India for the majority of his life. It is understandable that his wife does not want to relocate to India permanently because she has a job and family here. However, that does not amount to insurmountable obstacles under paragraph EX.2. On the facts of this case, there were no very significant difficulties which would entail serious hardship. Accordingly, the Appellant cannot satisfy the requirements of the Immigration Rules.

20. In assessing Article 8, I take into account that the Appellant cannot succeed under the Immigration Rules and I attach little weight to his relationship which was formed at a time when his immigration status was precarious. The Appellant's wife was aware of the situation. The Appellant could return to India and obtain entry clearance. His wife will support him and visit him. There were no exceptional circumstances in this case to warrant a conclusion that leave to remain be granted outside the Immigration Rules (paragraph 31 Agyarko).

21. It would not be disproportionate to require the Appellant to return to Indian and obtain entry clearance given that separation would only be temporary provided he can satisfy the Immigration Rules. It is perfectly proportionate for the Respondent to require those wishing to enter the UK to satisfy the Immigration Rules. It does not appear from what the Appellant told me at the appeal hearing that he would be unable to satisfy the requirements for entry clearance, although he is naturally worried that he would be refused again and the separation would be lengthy. However, even if that was the case, the situation would not amount to a disproportionate interference with family life on the particular facts of this case, given that no insurmountable obstacles or exceptional circumstances have been shown. Accordingly, I dismiss the appeal under the Immigration Rules and on Article 8 grounds.

22. I allow the Respondent's appeal and set aside the decision of the First-tier Tribunal dated 20th May 2016. I re-make it as follows. The Appellant's appeal is dismissed under the Immigration Rules and on Article 8 grounds.

Notice of Decision

The Respondent's appeal is allowed.

The decision of the First-tier Tribunal is set aside.

The Appellant's appeal against the refusal of leave to remain is dismissed under the Immigration Rules and on Article 8 grounds.

No anonymity direction is made.

J Frances
Signed Date: 11th November 2016

Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD

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

J Frances
Signed Date: 11th November 2016

Upper Tribunal Judge Frances