Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21513/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On: 15th March 2017
On: 27th April 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Abdul Ghafar
(no anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr Timson, counsel instructed by Whitefield Solicitors
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is a national of Pakistan date of birth 16th April 1978. He appeals with permission1 the decision of the First-tier Tribunal (Judge Cox) dated 8th January 2016 to dismiss his human rights appeal.

Background and Matters in Issue
2. The Appellant entered the United Kingdom in August 2004 with a spouse visa which was valid until 2nd July 2006. Unfortunately his marriage broke down and by September 2007 he was divorced.
3. The Appellant had in the meantime met and married according to Islamic law another woman, by the name of Nisar Begum. They have been living together since May 2007. In February 2009 the Appellant made an application for leave to remain as the partner of Ms Begum. He was by then an overstayer. The application was refused but he was subsequently granted a period of Discretionary Leave, from 28th March 2011 to 28th March 2014. I am told that this was because Ms Begum had been diagnosed with breast cancer and it was considered to be disproportionate for her husband to be removed whilst she faced that period of illness.
4. On the 25th March 2014 the Appellant applied to vary that leave so as to extend it. That application was refused and the Appellant lodged an appeal against that decision. On the 7th October 2014 the Appellant’s appeal was dismissed by First-tier Tribunal Judge Chambers. He found that Ms Begum had successfully recovered from cancer and that at its highest, the medical evidence showed that she had some difficulties in using one of her arms. Both she and the Appellant had recently visited Pakistan and there would appear to be no impediments to either of them visiting that country. Since the Appellant was self-employed there would be no difficulty in him taking some time off to go home and apply for the proper entry clearance. The terms of EX.1 were not therefore met, and Judge Chambers did not accept that the circumstances warranted a grant of leave ‘outside of the Rules’.
5. The Appellant made a further application on the 19th March 2015 on Article 8 and “compassionate” grounds. That application was rejected on the 26th May 2015. It was against this decision that the present appeal was brought, coming before First-tier Tribunal Judge Cox on the 17th December 2015. It is not clear why it has taken so long for the appeal to the Upper Tribunal to be heard.
6. First-tier Tribunal Judge Cox directed himself to the following matters in issue. The Respondent had properly applied the criteria in Appendix FM. She had accepted that the Appellant met all of the relevant “suitability” and “eligibility” requirements but not those set out in EX.1. The Respondent was satisfied that relocation to Pakistan would involve some degree of hardship for the Appellant and his wife, but not that this hardship would amount to “insurmountable obstacles”. Judge Cox further directed himself to the principles set down in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702. Although he was bound to take the findings of Judge Chambers as his starting point, he was also obliged to consider evidence that was not available when that decision had been taken.
7. Having made those legal directions Judge Cox turned to examine the new evidence that had been submitted. The Appellant placed particular reliance on “a letter” from Ms Begum’s GP which is set out in some detail. The GP wrote that Ms Begum was suffering from general pain and that she had suffered a lot of psychological stress. Her first marriage had been an abusive relationship and after that she had suffered cancer. She had also lost her mother and the Appellant had offered her great support and assistance through all of this. Ms Begum herself told Judge Cox that sometimes she feels “mad in the head” worrying about what she would do if he went back to Pakistan. Having considered all of the evidence Judge Cox made certain negative credibility findings on the Appellant’s evidence. He did not accept that he had been under any illusions about his status as an overstayer when he embarked on a relationship with Ms Begum. Nor did he accept the submission that the Appellant was the only person who could care for her, since it had emerged in evidence that her daughter had been receiving carer’s allowance for performing that very role. She had two adult daughters in the UK. The GP’s letter did not suggest that her situation had deteriorated since Judge Chambers made his decision, and there was no medical evidence to support her claim that she could not travel alone. Overall Judge Cox was not satisfied that the terms of EX.1 could be met. He then proceeded to consider whether the appeal should be allowed on Article 8 grounds ‘outside of the Rules’. He referred himself inter alia to the factors set out in s117B of the Nationality Immigration and Asylum Act 2002. Having done so he found the Appellant’s removal to be proportionate and the appeal was therefore dismissed on all grounds.

The Appeal
8. The written grounds of appeal are not easy to follow. Reference is made to discretion and to various Article 8 jurisprudence but I cannot discern what the error of law is actually said to be in respect of these points. Mr Timson was not the author of those grounds and before me he very helpfully distilled the appeal grounds down to two points:
i) The Tribunal erred in failing to have regard to all of the evidence that was before it. In particular there was a failure to look at all of the medical evidence supplied.
ii) In assessing the impact on Ms Begum of relocation to Pakistan the Tribunal failed to have regard to the established nature of her private life in the UK and the other family relationships that she enjoys, in particular with her grandchildren.
9. At a hearing on the 6th September 2016 I heard oral submissions on whether the decision should be set aside for ‘error of law’. Mr Timson took me to paragraph 35 of the determination where the Judge accepts on the basis of the GP’s evidence that Ms Begum is finding all of this to be “stressful”. He submitted that this hardly did justice to totality of the GP’s evidence. For instance, at F1 of the Respondent’s bundle there was a letter from the Ribblesdale Medical Practice dated 21st May 2015 in which Dr Fahd Younis confirmed that Ms Begum had been diagnosed with depression, required long-term pain relief and had “considerable” emotional problems. Mr Timson submitted that the “stress” experienced by Ms Begum in the UK should not have been the focus of the Tribunal’s attention. The question was whether she would face insurmountable obstacles in relocating there, and in assessing that question the Tribunal had to examine the extensive medical evidence about her various psychological and physical health complaints as well as the impact upon her of being separated from her daughters and their children.
10. The Respondent was at that hearing represented by Senior Presenting Officer Mr A. McVeety, who opposed the appeal on all grounds. He argued that the Judge might not have referred to each and every letter from the GP stretching back a number of years, but this did not mean that he had failed to consider these matters, or that he had lost focus about what the question before him was. The determination makes reference to matters such as Ms Begum’s familiarity with Pakistani language and culture, and that she had quite recently spent a number of weeks there visiting her family. The medication she requires, including pain relief and anti-depressants, were available in Pakistan. These matters demonstrated that there were no insurmountable obstacles. Further more the Judge was bound to treat the determination of Judge Chambers as its starting point and the evidence did not demonstrate that Ms Begum’s health had deteriorated significantly since that decision was taken. Mr McVeety added that he was mystified as to why these in-country applications under the ‘ten year route’ were being pursued at all, given that the Appellant would very likely succeed under the ‘five year route to settlement’ if he went back to Pakistan and made an application for entry clearance. His wife is in receipt of DLA and so he would not have to meet the financial requirements; it is accepted that he meets all of the “suitability”, “relationship” and “eligibility” criteria so such an application would prima facie have to be granted.

‘Error of Law’
11. In a written decision dated the 23rd September 2016 I found, for the reasons set out below, that the First-tier Tribunal had not erred in its approach to EX.1 of Appendix FM.
12. The Appellant had made an application to join the ‘ten year route to settlement’ offered by Appendix FM. That is the route offered to applicants who have either entered the UK illegally, or have entered illegally and overstayed. The relative stringency of the requirements in this route reflect the public interest in deterring unregulated immigration to the United Kingdom and to encouraging genuine applicants for leave on Article 8 grounds to use the proper channels open to them. The hurdle that must be overcome in such ‘ten year’ applications is EX.1:
EX.1. This paragraph applies if
…
(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.
13. Following attempts by the courts to assess what “insurmountable obstacles” might be (see for instance Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 640 (IAC)) the Secretary of State amended the Rules to include a definition:
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.
14. This then was the test that Judge Cox had to apply. Were the obstacles that the Appellant and Ms Begum faced in Pakistan in truth no more than inconveniences, avoided by preference? Or were they truly matters which went to the possibility of resettlement, and would cause very serious hardship for either or both of them?
15. I am satisfied that Judge Cox understood the nature of his enquiry. Although he does make reference to Ms Begum’s current state of “stress” it is clear that he understands it is her relocation to Pakistan that he is concerned with. In considering that question he takes into account her medical history and current diagnoses, the fact that she has close family members in the UK who help to care for her and her difficult history of an abusive relationship and serious illness. Having considered all of that, he found that there was not sufficient evidence to justify a departure from the conclusions properly reached by Judge Chambers the previous year.
16. I am satisfied that this was a finding open to Judge Cox. The GP’s evidence that did not explicitly feature in the determination did not, in my view, add substantially to the evidence that was set out in some detail at paragraph 29 of the determination. There the Tribunal acknowledged the GPs views about the limitations on Ms Begum’s mobility because of her “generalised pains”, and how helpful the Appellant had been to her over the years. He found however that notwithstanding those pains or that support, these factors did not show there to be “insurmountable obstacles” to relocation.
17. In respect of Ms Begum’s other family members it is a moot point whether the interference that might result from her departure is something that could properly be taken into account in assessing whether she would face “insurmountable obstacles” in Pakistan. She would no doubt miss them, but in the absence of psychological evidence that she would be unable to cope without her daughters or grandchildren, it is hard to see how that presents an “insurmountable obstacle”, given the high nature of that test.
18. Overall I was satisfied that having applied the Devaseelan principles, the findings on EX.1 were open to Judge Cox.
19. That left the question of whether the First-tier Tribunal erred in law in its approach to Article 8 ‘outside of the Rules’. The determination records that Counsel for the Appellant had relied on the principles in Chikwamba, but that Judge Cox had declined to apply the same, since that was a case in which the applicant had met all the requirements of the Rules bar the “no switching” provision. Those comments, at paragraph 47 and 48, rather suggest that Judge Cox did not consider this to be such a case. It is not altogether clear why, given that that nature of the relationship was accepted, and Mrs Begum was in receipt of DLA. The only ground for refusal that the Respondent had offered had been the failure to meet the test in EX.1. That would of course not apply in any notional assessment of an application for entry clearance. I was persuaded, just, that it may have been an error for the Judge to discount, as he apparently did, the possibility that this was a Chikwamba case. That would clearly have made a difference to his Article 8 assessment of proportionality. Had he started from a finding that the appellant would succeed in an out-of-country application for entry, he would have then had to consider whether the evidence was enough to render any temporary separation disproportionate: 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). I was unable to determine, on the papers before me in September 2016 whether or not that was the case. I therefore ordered a further hearing so that I could hear submissions on the point.
20. When the hearing resumed in March 2017 Mr Timson and Mr Harrison had very helpfully taken an opportunity to go through the documentation, and Mr Harrison was able to accept that if the Appellant returned to Pakistan today, and made an application for entry clearance, that absent a change in circumstances that application would be successful. He submitted that the only matter in issue was whether it would be disproportionate to expect the Appellant to do so. It was Mr Harrison’s contention that any separation would not be long; he invited me to check the UK visas website to check on waiting times for settlement visas from Pakistan. I have done that. Approximately one third of settlement applicants in Islamabad have a decision within one month; 82% have a decision in two months, and 94% have a decision within three months (there is no explanation as to what happens to the remaining 6%).
21. Mr Timson submitted that no matter how long the wait, it would be disproportionate for this couple. He pointed to the evidence of the witnesses that Ms Begum would suffer “emotionally and psychologically” should she be deprived of the Appellant’s support. This has been recognised by the local authority who have now appointed the Appellant her carer. Her GP has spoken of the “enormous emotional support” that she gets from her husband. In his letter of the 4th October 2016 Dr Younis writes that Ms Begum has been placed under “severe stress” by the prospect that her husband will not be able to stay with her. She is so worried that she has been prescribed anti-depressants. Her anxiety is having a knock on effect on the pain caused by her fibromyalgia. Dr Younis is “certain” that her mental and physical health would deteriorate if she were to be separated from him.
22. In Chen Upper tribunal Judge Gill held that the question of temporary separation is not to be equated with the test under EX.1:
(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.
23. In this case I am satisfied that the temporary separation of husband and wife would likely be quite short, being as little as 4-8 weeks. I bear in mind however that their relationship is not limited to one of husband and wife. He is also in a position of being his wife’s carer. Although it is no doubt the case that the carer’s allowance, and the arrangements that it pays for, could revert to the Appellant’s step-daughter, it is plainly the evidence of both witnesses and the family GP that this has long been a role played by the Appellant and that his wife would likely suffer great upset were there to be an interruption in that care. Although thankfully she has recovered from the more serious illnesses that have beset her in the past, Ms Begum is not a well woman. She has various physical symptoms and these are, in the view of Dr Younis, inextricably linked to her psychological well being. I accept that she is likely to suffer considerable emotional stress as a result of her husband’s departure to Pakistan, and in view of Dr Younis’ unchallenged medical opinion, would accept that this would likely mean that she experienced heightened physical pain. Having considered all of the relevant factors I am satisfied that it would, in all the unusual circumstances, be disproportionate to expect the Appellant to go back to square one and apply for entry clearance. I am satisfied that the First-tier Tribunal did err in failing to address this question, and I remake the decision by allowing the appeal on Chen/Chikwamba grounds alone.

Decisions
24. The determination of the First-tier Tribunal contains no error of law in the approach to the Immigration Rules. It is set aside only to the extent identified above.
25. The decision on Article 8 ‘outside of the rules’ is remade as follows: “the appeal is allowed on human rights grounds”.
26. There is no anonymity direction.

Upper Tribunal Judge Bruce
26th April 2017