Tribunal decisions

The decision

ST

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22074/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 January 2017
On 30 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

M A
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Respondent: Mr Arayn, legal representative
For the Appellant: Mr D Clarke, Home Office Presenting Officer

DECISION AND REASONS
1. The Secretary of State pursues this appeal. I refer to the respondent in these proceedings as the "claimant". The claimant, who was the appellant in the First-tier Tribunal, appealed against the Secretary of State's decision to refuse him leave to remain in the UK on human rights grounds and to give directions pursuant to s47 of the Immigration, Asylum and Nationality Act 2006 for his removal from the UK.
2. The appeal came before Judge of the First-tier Tribunal Cohen ("the FTTJ") who, in a decision promulgated on 26 August 2016, allowed the appeal on human rights grounds outside the Immigration Rules.
3. The Secretary of State sought permission to appeal. It was granted by Judge of the First-tier Tribunal Landes on 15 December 2016 who considered it arguable that the FTTJ did not take into account the claimant had not met the Immigration Rules, s117B of the 2002 Act or that the couple had married at a time when the claimant was in the UK unlawfully. Permission to appeal was granted on all grounds albeit it was not considered there was merit in the ground that the FTTJ made a misdirection in law by failing to identify any compelling circumstances (given the recent guidance in Hesham Ali (Iraq) [2016] UKSC 60). Thus the appeal came before me.
Submissions
4. For the Secretary of State, Mr Clarke submitted that Hesham Ali only applied to deportation appeals and that the FTTJ was required to identify compelling circumstances for consideration of the appeal outside the Immigration Rules and pursuant to Article 8 jurisprudence. No such circumstances had been identified, contrary to SS (Congo) [2015] EWCA Civ 387. The FTTJ's task was to look through the lens of the Immigration Rules, consistent with the guidance in SS (Congo). The latter case did not preclude consideration of an appeal outside the Rules but a judge was required to identify the compelling circumstances which required such consideration before embarking on such an analysis. Such circumstances should go beyond any EX.1 findings under the Rules. Furthermore, the FTTJ had failed to have regard to the public interest factors pursuant to s117B and Dube (ss 117A-117D) [2015] UKUT 00090. Had the FTTJ done so, little weight would have been given to the claimant's private and family life with his wife. It was an error of law for the FTTJ to find an entry clearance application by the claimant would succeed; there was no evidence to support such a finding.
5. Mr Arayn, for the claimant, submitted the FTTJ had based findings on the evidence. They were open to the FTTJ. They were not perverse. Given the recent guidance in Hesham Ali at [41] and 162], "an applicant's failure to qualify under the rules is for present purposes the point at which to begin, not end consideration of the claim under article 8". He also referred to SS (Congo) at [44]. He submitted that Hesham Ali was relevant to non-deportation cases because inter alia the Supreme Court had referred at [162] to the guidance in Huang v SSHD [2007] UKHL 11, a removal case. In any event, it was clear from the FTTJ's findings that the claimant's spouse's circumstances including her health and caring responsibilities had been influential. Mr Arayn referred to [28] and [29] of the FTTJ's decision where the public interest had been taken into account in accordance with the guidance in Dube (albeit there was no reference to s117B specifically). As regards the public interest factors in s117B, Mr Arayn submitted s117B(4) and (5) had been addressed at [26] of the decision. He submitted there was evidence before the FTTJ of the claimant's ability to meet the entry clearance requirements. It was implicit from [26] that the FTTJ had assessed the degree of weight to be given to the claimant's private and family life.
6. Mr Clarke replied that it was for the claimant to demonstrate he would fulfil the entry clearance requirements. Whilst there was evidence of income, this was the couple's joint income and the Rules provided that only the sponsor's income could be taken into account. There was no evidence of the claimant's ability to fulfil the English language requirements.
Discussion
7. It is submitted for the Secretary of State, the FTTJ had identified no compelling circumstances for consideration of the appeal outside the Immigration Rules and pursuant to the Article 8 jurisprudence. I bear in mind the references by each party to Hesham Ali. Whilst that case was indeed a deportation case, the guidance of the Supreme Court has some bearing on removal cases such as this. The Rules are more prescriptive in the case of deportation appeals and yet it is clear from that case that the Supreme Court did not consider the Rules to be a complete code in deportation cases. Lord Reed at paragraphs 47 - 50 endorsed the structured approach to proportionality, found in Razgar, and said "what has now become the established method of analysis can therefore continue to be followed in this context ?". Given this guidance, I am unable to find it was an error of law for the FTTJ to undertake a full Article 8 assessment, particularly given the evidence of the appellant's wife's health and the impact of this on the couple's family life. It is arguable that those were matters which were not capable of consideration under the Rules (SS (Congo)). That said, it follows that such an assessment requires that the public interest factors set out in s117A-s117D be taken into account (Dube).
8. I am satisfied that the FTTJ failed to give due regard to the public interest factors identified in s117B of the 2002 Act. Whilst I note the guidance in Dube to the effect that specific reference to the Act is not necessary provided the relevant factors are addressed, it cannot be said that the FTTJ applied the test in s117B according to its terms. In particular, I do not accept the submission for the claimant that the FTTJ gave little weight to the appellant's relationship with his wife, a relationship which was formed at a time when the appellant's leave to remain had expired and his right to appeal had also expired. I am unable to accept the submission that the reference at [26] to the claimant's "immigration history" not being a significant negative factor weighing against him in the balancing exercise addresses this point. This means only that the FTTJ addressed the adverse impact of the appellant's immigration history; it is not a finding as to the weight to be given to the relationship, given that it was formed at a time when he had no immigration status. Indeed, this finding suggests that the FTTJ has also given little weight to the fact the appellant does not meet the criteria in the Immigration Rules for the grant of leave to remain on human rights grounds. Such an approach is directly contrary to the current guidance on the issue which is to the effect that the appeal should be decided through the lens of the Rules. This error of law is significant and material, impacting as it does on the outcome of the appeal.
9. I am also not satisfied that the FTTJ's findings with regard to the ability of the appellant to meet the entry clearance requirements are sustainable. As Mr Clarke rightly says, only the earnings of the sponsor can be taken into account in assessing whether the appellant would meet the financial requirements; the FTTJ appears to have taken into account their joint earnings. Furthermore, there is no evidence the claimant would meet the English language requirements. In that regard it is perhaps relevant that the claimant was assisted by a Turkish interpreter at the First-tier Tribunal hearing. Thus the FTTJ's findings on whether or not the claimant would meet the entry clearance requirements are unsustainable on the evidence. This is a core aspect of his assessment of proportionality. It is also relevant to the public interest in the maintenance of effective immigration control (s117B(1)).
10. For these reasons, the FTTJ's assessment of the proportionality of the proposed interference with the claimant's right to a private and family life is fundamentally flawed and unsustainable. It must be set aside. All parties were agreed that, in such circumstances, it was appropriate for the appeal to be decided afresh in the First-tier Tribunal because medical evidence may be required with regard to the claimant's wife's health and their IVF treatment. I agree with that course. No findings of fact are preserved. I observe in passing that the claimant does not cross-appeal the FTTJ's finding that the claimant does not meet the Immigration Rules. However, given that a fresh hearing will require an assessment of the evidence at the date of hearing, including consideration of whether or not the claimant meets the Immigration Rules at that date, I set aside the whole decision, including the decision that the claimant does not meet the criteria in the Immigration Rules. A proper assessment of the appeal on human rights grounds will necessitate consideration afresh of whether the claimant meets the Rules.
11. For these reasons, the decision of the First-tier Tribunal contains an error of law in the assessment of the evidence as regards the claimant's human rights claim. It must be set aside in its entirety.
Decision
12. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside in its entirety. The appeal is remitted to the First-tier Tribunal, to be dealt with afresh, pursuant to Section 12(2)(b)(i) of the Tribunal Courts and Enforcement Act 2007 and Practice Statement 7.2(v), before any judge aside from FTTJ Cohen.
13. Whilst no anonymity direction was made in the First-tier Tribunal, I make such a direction now in view of my references to the claimant's wife's health and the IVF treatment.

A M Black
Deputy Upper Tribunal Judge Dated: 30 January 2017

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the claimant and to the Secretary of State. Failure to comply with this direction could lead to contempt of court proceedings.

A M Black
Deputy Upper Tribunal Judge Dated: 30 January 2017

DIRECTIONS

1. Any further documentary evidence relied upon by either party is to be filed with the Tribunal and served upon the other party by no later than 14 days before the date of the hearing in the First Tier Tribunal.

2. The appeal is listed at Taylor House with a time estimate of three hours to be heard at 10.00 am on ?????????.

3. A Turkish interpreter is required.

A M Black

Deputy Upper Tribunal Judge Dated: 30 January 2017