Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22637/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 January 2017
On 6 March 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

muhammad naeem iqbal
(Anonymity direction not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Harris, Counsel instructed by Rashid & Rashid Solicitors
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer
DECISION AND REASONS
1. I see no need for and do not make an order restricting publication of any of the details of this decision.
2. The appellant appeals with the permission of Upper Tribunal Judge Canavan a decision of the First-tier Tribunal on 1 July 2016 to dismiss his appeal against the decision of the respondent on 8 June 2015 to refuse his application for leave to remain on human rights grounds.
3. I begin by looking at the substance of the decision complained of. The respondent noted that the appellant had entered the United Kingdom as a Tier 4 General Student and extended his leave until 13 January 2015. However on 21 October 2014 the appellant was encountered by Immigration Enforcement Officers working in breach of his conditions of stay. He was detained. On 31 October 2014 he made an asylum claim, which he withdrew on 9 April 2015, and a human rights claim which was refused and certified as unfounded on 8 December 2014. By letter dated 19 March 2015 his solicitors made a further application and it is that application that was refused and the refusal led to the appeal that I have to consider.
4. The respondent’s reasons for refusal were very straightforward. The appellant was not married and he could not bring his claim successfully under the so-called “partner route” because he had not been in a relationship akin to marriage for the necessary two years. There were no children and so nothing to consider under EX.1. Clearly the appellant did not satisfy the requirements of 276ADE(1) because he had not lived in the United Kingdom for long enough.
5. The appeal came before the First-tier Tribunal on 1 July 2016. By then the appellant had married his alleged partner at the registry office of the London Borough of Merton on 6 September 2015. Prior to that, on 12 March 2015, they had taken part in an Islamic marriage.
6. There were two paragraphs in the decision where the judge made particularly pertinent findings.
7. At paragraph 12 he said:
“On 21 October 2014 Immigration Enforcement Officers encountered the appellant at his previous work place, working in breach of conditions. The appellant stated that he was visiting friends at his old work place but accepted that he was in the workshop area that is in an area where the public are not allowed to enter. I find on a balance of probabilities that the appellant was working in breach of conditions. I find that the appellant was detained and served illegal entrant papers, shortly after which point the appellant made an asylum and human rights claim. I find the appellant withdrew his asylum claim on 9 April 2015. I find that the appellant made a bogus asylum claim in order not to be removed from the UK but in order to remain in the UK and to be released from detention.”
8. The judge noted that the appellant’s partner had not visited him in prison. She explained to the judge that this was because “she felt that as a black woman she could not go alone to visit him”. The judge noted that she had travelled to the United States of America and to Paris and found at paragraph 14 the that her failure to visit him indicated the quality of their relationship.
9. The judge dismissed the appeal.
10. It was an accepted fact that the appellant’s wife did not earn sufficient money to satisfy the requirements of the Immigration Rules in the event of his returning to Pakistan and making an application. At paragraph 8 of his decision the judge said:
“I find the appellant does not meet the immigration requirement under the Partner or Parent Route under Appendix FM or under paragraph 276ADE for the reasons that have been stated by the respondent in the Reasons for Refusal Letter. I am prepared to accept having looked at the documentary evidence that the appellant married the appellant (sic) on 6 September 2015, having seen the marriage certificate, photographs, and the evidence of the appellant and his partner. However I find that the appellant does not meet the financial requirements having looked at the documents submitted. I find that even though there might be some hardship I do not find that the appellant has submitted the required evidence to show that there would be insurmountable obstacles for the appellant to continue his family life outside the United Kingdom.”
11. The judge granting permission to appeal indicated disapproval of the use of the pejorative term “bogus asylum claim” and noted an arguable inaccuracy in the part of the First-tier Tribunal Judge describing as “illegal entry papers” when it was plain he had not entered the United Kingdom “illegally”. The criticism of the appellant was of his working in breach of conditions. However the judge’s main reasons for giving permission was there was no explanation for the conclusion that there were “no insurmountable obstacles to the appellant continuing his family life outside the United Kingdom”.
12. I make it clear that nothing turns on the use of the phrase “bogus asylum seeker”. It is always advisable to withdraw heated pejorative phrases. Adverse criticism can be made more effectively in temperate language. However the plain fact is this is an appellant who did make an asylum claim which he was not prepared to see through to an appeal and it is impossible to say that the judge’s infelicitous remark showed prejudice or distorted his primary task which was to determine the appeal on human rights grounds.
13. The judge was entitled to look at the Rules because an ability or inability to comply with the Rules illuminates the public interest in a human rights claim. The fact that the parties to the marriage could not satisfy the partnership Rules at the time of the application is of peripheral value. They were married by the time the judge heard the case and human rights cases have to be determined upon the facts as they present themselves. The judge was entitled to find that the appellant could not satisfy the Rules because his wife did not earn enough money. This was an admitted fact and was uncontroversial. The obligation to promote married life in the case of a genuine marriage might be thought to be strong. It certainly exists. However it is tempered by the requirements of the Rules and although there may well be a few cases occasionally where the duty to promote a marriage is so strong that an inability to meet the financial requirements of the Rules by a relatively small amount, as is the case here, might sometimes outweigh the public interest in proper immigration control the fact that the parties to the marriage cannot satisfy the Rules is a weighty matter which the judge rightly took into account. The judge clearly found, as he was entitled to, that the public interest in refusing the application was particularly strong in this case because the appellant had abused his right to be in the United Kingdom by working when he ought not to have been working. The judge was perfectly entitled to reach the conclusion that that is what had happened. The appellant’s case, namely that he happened to be visiting on the occasion that the premises were raided and happened to be the wrong side of the counter because he was making enquiries about what was happening and was wearing business clothes because he had to wear them is not wholly unbelievable but it is not an attractive line of argument. It was completely unsupported by the kind of evidence that might reasonably be expected such as supportive evidence from the owner of the shop and the judge was clearly entitled to reject it.
14. The judge was also entitled to take into account the nature of the marriage. It was a subsisting relationship but the appellant had allowed the relationship to develop when his status was precarious and that is something his wife ought to have known and maybe did know because she is old enough and sophisticated enough to have made necessary enquiries. Indeed I note from the Islamic marriage certificate that when they went through that ceremony she was 50 years of age and he was 27 years of age.
15. Although Judge Canavan’s grant is politely criticised in the Secretary of State’s Rule 24 notice it is clear why she gave permission. It is accepted that there is a genuine subsisting marriage. If it really is the case that that marriage cannot take place outside the United Kingdom then it may be that the balancing exercise was conducted wrongly. The judge expressly had regard to the difficulties the appellant’s wife would have in leaving the United Kingdom. Not much turns on the fact that she has an adult son living there apart from the fact that she would no doubt like to be closer to him. The fact that her father is suffering from cancer is a matter of concern but a person who chooses to marry is expected to create a new life with her partner. This is not to say that the relationship with her father is unimportant but it is secondary to the relationship with her husband and the judge was entitled to find that she could be expected to leave him.
16. In her witness statement the appellant’s wife said that she had never lived outside the United Kingdom and thought it would be “extremely difficult” for her to live in a country with a different culture and tradition and where she would not be welcomed because she would be a black woman and she did not speak Urdu. She said there would be no home for them in Pakistan because her husband’s family did not approve of the marriage. She was frightened of the level of violence commonly reported in Pakistan. This is echoed in all material respects by the appellant.
17. The judge correctly set out the requirements of Section 117B of HC 395. He found strong reasons for maintaining effective immigration control in this case. Particularly the appellant’s disregard for immigration control. This is considered above. The appellant did not meet the financial requirements.
18. The judge reminded himself that “little weight should be given to a relationship formed with a qualifying partner that is established by a person at a time when that person is in the United Kingdom unlawfully. However the appellant was not in the United Kingdom unlawfully when he took part in the Islamic marriage. He was actually pursuing an asylum claim. This does not mean that his case is strong but it means that it is not weakened by operation of Section 117B(iv)(b) thereto. However it is settled law that the conditions set out in Section 117C are those Parliament considered to be particularly important and are binding because they are statutory law. It is not the case that additional factors are irrelevant.
19. I find the judge, albeit sometimes a little obliquely, considered everything that needed to be considered and has reached a conclusion open to him. There is no independent evidence that there are insurmountable obstacles to the appellant and his partner, now his wife, establishing themselves in Pakistan. However even if there are the appellant can go back to Pakistan and when his wife’s circumstances change he can make an application to come back to the United Kingdom.
20. Given all the circumstances of the case I see no reason why the duty to promote marriage will extend to permitting him to live as a married man in the United Kingdom when he cannot be maintained in accordance with the Rules. This is not a case of decline in economic circumstances below the level required by the Rules after a marriage is well established but a marriage should never satisfy the financial requirements in the first place.
21. Hindsight is a great counsellor and, as is the case of most judicial decisions ever written, no doubt including this one, it could have been done better but I am satisfied that the First-tier Tribunal Judge has considered all the points and reached a permissible conclusion.
22. I have not said a great deal about Mr Harris’ submissions. I have had them very much in the front of my mind and considered them with the benefit of full notes. He particularly argued that there should have been proper findings about insurmountable obstacles so there would be a properly informed finding on Article 8. I consider that point but I am satisfied that any error is not material. It follows therefore I dismiss the appeal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 3 March 2017