Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21994/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 October 2016
On 27 October 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

REETA [K]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr V Makol, legal representative, Maalik & Co
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge RL Walker, promulgated on 23 February 2016. Permission to appeal was granted by PJM Hollingworth on 9 September 2016.
Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. On 12 March 2011, the appellant entered the United Kingdom as a dependant of a Tier 4 (General) migrant, namely RK. She was granted further leave to remain in the same capacity from 11 April 2013 until 9 April 2015.
4. On 6 February 2015, the appellant applied for limited leave to remain in the United Kingdom as the partner of a settled person, namely SD. This application was refused on 3 June 2015. The Secretary of State noted that the appellant and her current partner confirmed that the relationship which she relied upon in order to obtain further leave to remain in the United Kingdom (with RK) was not genuine. Consequently, the respondent refused the application under S-LTRP 2.2 of the Immigration Rules. Furthermore, the Secretary of State considered there to be discrepancies between the accounts provided by the appellant and DS regarding their relationship and concluded that theirs was a marriage of convenience. Accordingly, the requirements of R-LTRP1.1(c) were not met and as a consequence of a failure to meet both the suitability and eligibility requirements, EX.1 did not apply to the application. The appellant's circumstances in relation to the parent route also failed under suitability and eligibility requirements. The circumstances of the appellant's then 10-month old child were considered, but there were said to be no exceptional circumstances.
The hearing before the First-tier Tribunal
5. Following the hearing before the First-tier Tribunal Judge, the relationship between the appellant and DS was accepted as genuine; S-LTRP2.2 was found to apply because the appellant admitted that she was already living with DS when she applied for further leave to remain as the partner of RK. The judge considered there to be no insurmountable obstacles to family life continuing in Nepal and that it would be reasonable to expect the child to accompany his parents to Nepal. The judge rejected the argument that it would disproportionate to expect the appellant to return to Nepal to make the appropriate entry clearance application.
The grounds of appeal
6. The grounds of appeal in support of this application argue that there was a failure to consider section 55 of the 2009 Act, the best interests of the child or Ex.1(a) and that the judge erred in his proportionality assessment.
7. Permission to appeal was granted solely on the basis that it was arguable that the judge's reasoning in relationship to proportionality was insufficient, applying section 117.

8. The respondent's Rule 24 response, received on 3 October 2016, indicated that the appeal was opposed; the judge directed himself appropriately and the grounds amounted to little more than a disagreement with findings open to the judge on the evidence.
The hearing
9. Mr Makol relied on the grounds. He reiterated that the judge did not consider the best interests of the British child and that Article 8 was not considered properly with reference to section 117B(6) of the 2002 Act. He relied on Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC) and submitted that it was not reasonable for the family to relocate because the appellant's partner is settled and the child is British.
10. Mr Tufan relied on the authorities of R (on the application of Agyarko and Others) v SSHD [2015] EWCA Civ 440; MA (Pakistan) [2016] EWCA Civ 705 and R (on the application of Chen) v SSHD (Appendix FM - Chikwamba - temporary separation - proportionality) IJR [2015] UKUT 189 (IAC). He apologised for not providing these to Mr Makol earlier. At this point I recalled that Mr Makol had left a message to say that he had been delayed on his journey and thus he was not present at 1000 hours. In any event, Mr Makol told me that he was aware of these authorities. Mr Tufan reminded me that matters had moved on since Treebhawon was decided and that following MA (Pakistan), it was clear that section 117B (6) was not a stand-alone section but that all the requirements of section 117B have to be considered. He argued that having a British citizen child was not a trump card and that the background of the parents and child was relevant. In this case, both parents were Nepalese nationals, the child was 17 months old at the time of the hearing and it was open to the judge to arrive at the conclusions he did.
11. With regard to the judgment in Chen, Mr Tufan noted that the judge had relied on this authority but concluded that it was reasonable to expect the appellant to return and seek entry clearance because of her conduct in gaining further leave to remain with a different partner to the one she was in a relationship with. With regard to Agyarko, Mr Tufan relied on what was said at [31] of the judgement regarding the need to establish exceptional circumstances prior to concluding that it was disproportionate for an applicant to have to leave temporarily for the purpose of seeking entry clearance where there were no insurmountable obstacles to family life continuing overseas.
12. In reply, Mr Makol simply argued that the facts in the case law relied upon by Mr Tufan were not as strong as those of the appellant. He described Upper Tribunal Judge Gill's conclusions in Chen as being "obiter." In essence, Mr Makol submitted that it was not open to the judge to dismiss the appeal because the appellant had a British citizen child and that the age of the child was irrelevant. He argued that the respondent's guidance said there had to be strong reasons for refusing an application where there was a British child. He added that the respondent's decision was wrong in that the suitability ground relied upon referred to false representations in a past rather than a current application. He accepted that this was not a ground of appeal. Otherwise, he emphasised that the judge did not look at section 117B(6).
Decision on error of law
13. At the end of the hearing, I announced that the judge made no material error of law and that his decision was upheld. My reasons are as follows.
14. Permission to appeal was granted solely on the basis that it was arguable that in considering the Article 8 appeal outside the Rules, the judge did not sufficiently apply section 117 of the 2002 Act. While the grounds asserted that there had been no reference to the best interests of the child or section 55 of the 2009 Act, permission was not granted on that basis and indeed at [31] the judge specifically considers these matters.
15. The judge considered the appellant's circumstances and those of her partner and child under EX.1 to Appendix FM notwithstanding his earlier finding that she did not meet the suitability requirements. He concluded, for a plethora of reasons, that it there were no insurmountable obstacles to family life taking place in Nepal and that it would be reasonable for the child to leave the United Kingdom with his parents, either temporarily or permanently. Those reasons included the presence of family support in Nepal, the existence of a holiday home in Nepal, the young age of the child whose life revolved around his parents and that both parents would, if necessary, return to Nepal and thus there would be no interference with family life. These were findings he was entitled to make on the evidence before him.
16. It is the case that the judge did not make any direct reference to the factors set out in section 117B, specifically 117B(6) in his freestanding Article 8 consideration. I find that this is not a material error for the following reasons. At [10] the judge directed himself regarding the necessity for consideration to be given to the aforementioned provisions. Furthermore, at [34], the judge considered that the Rules catered for the Article 8 claim in this case but that he would "nevertheless still conduct a freestanding Article 8 proportionality exercise." While it might have been preferable for the judge to have directly referred to section 117B(6), he did not materially err in not doing so because he had considered EX.1(a) which contains identical provisions. Thus the reasonableness of the child returning to Nepal with his parents had already been considered and any further consideration was most unlikely to have led to a differing result, particularly when the issue of the appellant's false representations was taken into account.
17. The Chikwamba point which emerged in Mr Armstrong's submissions was adequately addressed by the judge who recognised that this issue was not contained within Appendix FM. In view of the appellant's false representations, I find that the judge did not err in concluding that the public interest in maintaining effective immigration control outweighed any interference to the family and private life of the appellant and her family. These were findings he was entitled to make. In any event, given what was said at [31] of Agyarko regarding the need for exceptional circumstances for a finding to be reached that a decision to remove was disproportionate where, as in this case, there were no insurmountable obstacles to family life taking place abroad.
18. Mr Makol pointed to no exceptional circumstances in this case. Indeed, owing to the false representations, there were compelling reasons in this case which underpinned the judge's finding that it was not disproportionate to expect the appellant to apply for entry clearance from abroad.
19. Mr Makol raised an issue which did not form part of the grounds or grant of permission, that of whether the respondent was correct in finding that the suitability requirements of the Rules were unmet because the false representations related to a previous rather than the instant application. The reference to suitability in the grounds related only to whether the respondent and therefore the judge erred in not exercising discretion in the appellant's favour. S-LTR 2.2 (a) states that false information submitted to any person to obtain a document used in support of the application is also affected by this Rule. It is clear that the appellant's application for further leave to remain as the partner of RK when she falsely claimed to be his dependant resulted in her being granted leave to remain until 9 April 2015. Owing to having leave to remain, the appellant was then in a position to seek further leave to remain as a partner of SD. The judge came to this conclusion at [28] of his decision, finding that her application was "quite properly" refused. However, even had the judge erred in this regard, it would have been immaterial given that he went on to consider the criteria set out in Ex.1 in any event at [29-32] of his decision. The appellant's conduct was relevant in relation to the judge's consideration of EX.1 and his proportionality assessment regardless of whether she failed to meet the suitability requirements or not.

Conclusions
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I uphold the decision of the First-tier Tribunal.

Signed Date
Upper Tribunal Judge Kamara 27 October 2016