Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22030/2013

THE IMMIGRATION ACTS

Heard at Bradford

On 8th April 2014
On 17th April 2014

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Before

UPPER TRIBUNAL JUDGE D E TAYLOR

Between

Secretary of State for the Home Department
Appellant

and

mT
Respondent

Representation:

For the Appellant: Mr M Diwnycz, a Home Office Presenting Officer
For the Respondent: Mr Pipe of Counsel instructed by Legal Rights Partnership

DETERMINATION AND REASONS

1. This is the Secretary of State's appeal against the decision of Judge P J M Hollingworth made following a hearing at Stoke-on-Trent on 17th December 2013.

Background
2. The claimant is a citizen of Zimbabwe. He arrived in the UK on 30th August 2008 on a student visa valid to 31st October 2010 and was subsequently issued with further leave to remain as a Tier 4 student until 28th February 2013.
3. He made an in time application to vary his leave on the basis of his marriage to K K who was present and settled in the UK, having come here as the dependant of a refugee. K K had a child, S, who is a British citizen. She has no contact with her biological father and the judge found that S is not aware that the claimant is not her natural father.
4. The Secretary of State was not satisfied that the couple intended to live permanently in the UK together because the claimant worked part-time in the south of England. She also refused him with respect to paragraph EX.1(a) and (b) and paragraph 276ADE of the Immigration Rules.
5. The judge found that the couple were in a genuine and subsisting relationship and there is no challenge to that aspect of his decision by the Secretary of State.
6. The judge said that he had carefully considered the application of Section 55 in the light of the evidence which he had accepted. It would not be reasonable to expect S to leave the UK. He stated as follows:-
"I have already found that the Appellant has a genuine and subsisting relationship with his wife who is in the UK. I find that there are insurmountable obstacles to family life with the Appellant's wife continuing outside the UK. The Appellant's wife must remain in the UK to care for us for the reasons I have given. I find the requirements of the Rules are met. The necessary elements are fulfilled. I accept the submissions of Learned Counsel.
I find that in any event the Appellant's wife is in tertiary education having come to the UK as the dependant of a refugee. I do not find on a further and separate basis that it would be reasonable to expect her to leave the UK. I find on this further and separate basis that this establishes an insurmountable obstacle to family life being led with the Appellant outside the UK.
In case I am in error as to the findings set out above and in relation to the Rules I have proceeded to consider whether there would be a breach of Article 8."
7. The judge then set out the relevant law and stated that he attached due weight to the applicability of the Rules. He then wrote:
"It would not be reasonable to expect S as a British citizen to relocate. S requires her mother to remain with her in the UK to care for her in the light of her age. The Appellant has been in the UK since 2008. I accept that he has a good immigration history and has always had leave to remain. I find that the Appellant's wife is pursuing her education with a view to practising the profession which she wishes to join when she qualifies. I accept that the Appellant's wife came to the UK under the Refugee Reunion provisions as her parents had passed away. The Appellant's wife is undertaking a degree course.
I find that the Appellant and his wife are committed to each other and intend to live permanently with each other. I have given my reasons for this finding above. I find there are insurmountable obstacles to the Appellant's life with his wife continuing in Zimbabwe for the reasons I have given. The expert report of Mrs Pearce demonstrates the evidential basis for and justifies the conclusions set out in that report as to the best interests of S. I find that it would be disproportionate for the Appellant to be removed. I find there would be a breach of the Article 8 rights of the Appellant's wife and of the Article 8 rights of S to a family life. I find for the same reasons that there would be a breach of the Article 8 rights of the Appellant to a family life."
8. On that basis he allowed the appeal under the Rules and Article 8 principles generally.
The Grounds of Application
9. The Secretary of State sought permission to appeal on the grounds that the judge had given inadequate reasons for his decision. The judge finds that the claimant's wife is in tertiary education having come to the UK as the dependant of a refugee. Contrary to the judge's assertion, this does not establish that there are insurmountable obstacles. There is no provision under Article 8 in respect of education and it would be open to the wife to seek comparable education in Zimbabwe if she so wishes. Her status as the dependant of a refugee does not automatically imply that she could not travel to Zimbabwe. The judge makes no findings on any real risks that she may be exposed to nor makes any findings on whether these risks are of present relevance to the instant appeal. Furthermore, the best interests of the child are realised by remaining with her mother and this would be possible in Zimbabwe.
10. Permission to appeal was granted by Judge Pinkerton for the reasons stated in the grounds on 19th February 2014.
The Hearing
11. Mr Diwnycz relied on his grounds and submitted that the judge had given inadequate reasons for his decision.
12. Mr Pipe submitted that the Secretary of State's grounds were simply a reasons challenge. He relied on the decision in Shahzad (sufficiency of reasons: satisfy) Afghanistan [2013] UKUT 85 where the President stated:
"We would emphasise that although there is a legal duty to give a brief explanation of the conclusions on the central issue on which the appeal is determined, such reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge. Although a decision may contain an error of law where the requirements to give adequate reasons are not met, this Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant country guidance is taken into account, unless the conclusions that the judge draws from the primary data before him were not reasonably open to him."
13. Mr Pipe also relied on the decision in MF (Nigeria) v SSHD [2013] EWCA Civ 1192 where the Master of the Rolls said:
"In view of the concession made before the UT the question of the meaning of insurmountable obstacles does not arise. We did however hear argument on the point. We would observe that if insurmountable obstacles are literally obstacles which it is impossible to surmount their scope is very limited indeed. We shall confine ourselves to saying that we incline to the view that, for the reasons stated in detail by the UT in Izuazu at paragraphs 53 to 59, such a stringent approach would be contrary to Article 8."
14. Mr Pipe submitted that the judge had made comprehensive findings of fact on the basis both of the oral evidence and on the social worker's report. It was clearly in the interests of the British citizen child to remain in the UK. In the First-tier, reliance had been made on the case of Sanade and Others (British children - Zambrano - Dereci) [2011] UKUT 48 that it could not be argued by the Secretary of State that it would be reasonable for the child to live in Zimbabwe.
15. He submitted that the Secretary of State had failed to identify any factor which had not properly been taken into account and that taken as a whole the judge had reached a decision open to him supported by clear sustainable and logical reasons.
Findings and Conclusions
16. Under paragraph 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;
(bb) is in the UK;
(cc) is a British citizen or has lived in the UK continuously for at least the seven 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.
17. It seems that the author of the grounds directs his challenge to the consideration of the position of the wife and, had the sole basis for this decision been paragraph 32 of the determination, namely the fact that she is in tertiary education having come to the UK as the dependant of a refugee, it may well be arguable that the reasoning was not adequate.
18. However, it is clear that the primary reason for this appeal having been allowed was the position of S. It was plainly open to the judge to find that it would not be reasonable to expect S to leave the UK as conceded in the case of Sanade. Therefore, even if the judge's reasoning in respect of EX.1(b) was lacking since he was entitled to allow the appeal with respect to EX.1(a) any error is immaterial.
19. In any event the grounds do not appear to challenge the judge's reasoning with respect to Article 8 outside the Rules and Mr Diwnycz made no submission that the judge's findings were not open to him.
20. There is no misdirection in law and no reason to set aside the decision.
Decision
21. The judge's decision stands. The Secretary of State's challenge fails and the claimant's appeal is allowed.

Signed Date

Upper Tribunal Judge Taylor