Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22632/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 March 2017
On 17 March 2017

Before

Deputy Upper Tribunal Judge MANUELL

Between

Mr CLEVER MIRIN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Malik, Counsel
(Direct Access)
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

1. The Appellant appealed with permission granted by First-tier Tribunal Judge Pooler on 6 February 2017 against the determination of First-tier Tribunal Judge Callow who had dismissed the appeal of the Appellant seeking settlement outside the Immigration Rules on Article 8 ECHR grounds. The decision and reasons was promulgated on 2 September 2016.

2. The Appellant is a national of Nigeria. The Appellant had entered the United Kingdom lawfully as a Tier 4 (General) Student Migrant in 2012. In 2014 he had married his British Citizen wife who had a British Citizen son from a previous relationship. The Appellant was unable to meet the financial requirements of Appendix FM and had sought leave to remain on family life grounds. At the hearing the Appellant accepted that he could not meet the financial requirements of Appendix FM: see [14] of the decision and reasons. The judge found that the marriage was genuine and subsisting, and that the Appellant had relationship with his step son, but that it was not unreasonable for the wife and child to relocate to Nigeria with the Appellant to continue their family there. There were no insurmountable obstacles and there were no exceptional circumstances. The judge applied Chen [2015] UKUT 00189 (IAC) and found that a temporary separation pending entry clearance was proportionate in Article 8 ECHR terms. The judge dismissed the appeal on that basis.

3. Permission to appeal was granted because it was considered that the judge had erred in finding that the Appellant did not meet the requirements of paragraph R-LTRP.1.1.(d) and to consider paragraph EX.1. by reference to the parent route. It followed that it was arguable that the judge had erred in his approach to Article 8 ECHR.

4. Standard directions were made by the tribunal. A rule 24 notice opposing the appeal was filed by the Respondent.

Submissions

5. Mr Malik for the Appellant relied on the grounds of onwards appeal and grant. In summary he sought to argue that the judge had erred when applying Sabir [2014] UKUT 00063 (IAC). EX.1 should have been considered. The Appellant had been entitled to switch categories. Even if the Immigration Rules had not been satisfied, the judge had failed to consider the best interests of the step son and there had been no reference to section 117B(6) and the reasonableness of the step son’s going to Nigeria. The determination should be set aside and remade.

6. Mr Armstrong for the Respondent relied on the rule 24 notice and submitted that there was plainly no material error of law. It had been accepted that Appendix FM had not been met and the judge’s Article 8 ECHR findings were open to him. The onwards appeal should be dismissed.

No material error of law finding

7. In the tribunal’s view the grant of permission to appeal was far too generous, and was not based on a proper reading of the decision and reasons. As noted above, the Appellant had accepted from the time of his application that he was unable to satisfy Appendix FM of the Immigration Rules for financial reasons: see E-ECP.3.1(a)(i) and E-LTRP.3.1(a), which there was no need for the judge to cite. Sabir (above) applied for the reasons the judge gave. The parent route under Appendix FM was not open to the Appellant as he does not have sole parental responsibility for his step son and he is eligible as the result of his marital relationship to apply under the partner route, meaning that the stringent financial requirements of Appendix FM apply to him, not merely “adequate maintenance” which applies only to the parent route. This was not in dispute before the judge at any time and is reflected in the witness statements (see, e.g., the spouse’s witness statement) and the other evidence served on the Appellant’s behalf. Any subsequent submissions to the contrary are misconceived. MM (Lebanon) [2014] EWCA Civ 985, on which the judge also relied, has been upheld by the Supreme Court, i.e., the financial requirements of Appendix FM are Article 8 ECHR compliant. Article 8 ECHR, as the judge correctly stated, was the only live issue.

8. There was no suggestion that the experienced judge had misunderstood any of the evidence. He examined the family situation with care and was entitled to find that the family life could be continued in Nigeria without insurmountable obstacles because the Appellant would be able to find work there and provide for his family. That embraced a “best interests” consideration as the step son’s best interests are obviously to be with his mother. As the judge pointed out at [15] and again at [19] of his decision, the other obvious and reasonable option was for the Appellant to return to Nigeria alone and to seek entry clearance under the Immigration Rules. The judge applied Sunussee {2015] EWHC 1604 (Admin) which provides useful guidance in such situations.

9. It is not easy to see what more the judge could have done. Section 117B(6), part of the statutory public interest consideration applicable to the tribunal’s consideration of Article 8 ECHR, is in the following terms:

“In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where –

(a) the person has a genuine and subsisting relationship with a qualifying child (defined in section 117D as a person under the age of 18 and who is (a) a British Citizen or (b) has lived in the United Kingdom for a continuous period of seven years or more), and

(b) it would not be reasonable to expect the child to leave the United Kingdom.

10. As the judge found as fact that it was reasonable for the step son to leave the United Kingdom to live in Nigeria with his mother and the Appellant, the reasonableness issue had already been decided against the Appellant and so did not require to be examined a second time. There was no need for a separate discussion of section 117B(6).

11. Mr Malik did not seek to argue that there were any exceptional circumstances applicable to the appeal. The judge had considered the sponsor’s circumstances: see, e.g., [18] of the decision.

12. Plainly the Appellant, his wife and step son have several reasonable options open to them for the continuation of their family life, i.e., to live together in Nigeria or to travel there together on a visit while entry clearance is sought or to separate on a temporary basis while the Appellant obtains entry clearance on the terms prescribed by the Immigration Rules. The tribunal finds that the onwards appeal has no substance and that there was no material error of law in the decision challenged.

DECISION

The appeal is dismissed

The making of the previous decision did not involve the making of a material error on a point of law. The decision stands unchanged.

Signed Dated

Deputy Upper Tribunal Judge Manuell