Tribunal decisions

The decision

IAC-fH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/23004/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 December 2016
On 2 March 2017

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

Secretary of State for the Home Department
Appellant
and

HS
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr T Wilding, Senior Home Office Presenting Officer
For the Respondent: Mr R Sharma, Counsel instructed by Charles Simmons Solicitors

DECISION AND REASONS
1. Although the appellant in these proceedings is the Secretary of State, I refer to the parties as they were before the First-tier Tribunal (“FtT”).
2. The appellant is a citizen of India born on 15 October 1987. He arrived in the UK in October 2009 as a Tier 4 student. He made an application on 2 April 2015 for leave to remain on Article 8 grounds. That application was refused in a decision dated 3 June 2015.
3. The appellant’s appeal against that decision came before First-tier Tribunal Judge Miles (“the FtJ”) on 24 June 2016 whereby the appeal under the Immigration Rules was dismissed, but allowed under Article 8, outside the Rules.
The grounds and submissions
4. The grounds upon which permission to appeal to the Upper Tribunal was granted are to the effect that although the appeal was allowed on the basis that there were insurmountable obstacles preventing the appellant’s spouse from moving to India to be with the appellant, the FtJ had failed to consider the option of the appellant returning to India to apply for entry clearance. The Tribunal had made no finding on that point. The grounds argue that the FtJ’s decision appeared to be based on using Article 8 as a “general dispensing power”.
5. In submissions Mr Wilding relied on the decision in Secretary of State for the Home Department v Hayat (Pakistan) [2012] EWCA Civ 1054, where the relevant principles in relation to applying for entry clearance are set out at [30]. The FtJ had not identified anything at [28] of his decision that had not already been considered in respect of his decision under the Rules, but the possibility of an entry clearance application had not been considered.
6. Furthermore, there was inconsistency in the FtJ’s decision between [21] and [28] in terms of the extent to which the sponsor would be able to obtain medical treatment in India.
7. With further reference to the decision in Hayat, and where it was found as in this case that there were no insurmountable obstacles to family life continuing in India, consideration was needed in terms of the question of whether the appellant should make an application for entry clearance from India. The FtJ’s analysis of Article 8 was incomplete and he had used Article 8 as a general dispensing power.
8. Mr Sharma relied on the ‘Rule 24’ response. It was initially submitted that it was not clear as to whether the respondent raised the issue of an entry clearance application at the time of the hearing before the FtJ. In Hayat it was clear that the matter had been argued before the FtJ in that case. It was submitted that if the respondent wanted to put the case in that way then he should have done so before the FtJ in this appeal. It was later conceded however, that the matter was referred to in the decision letter.
9. It was submitted that at [23] and [24] the FtJ had concluded that there were no insurmountable obstacles to family life continuing outside the UK, recognising the high threshold. At [25] he recognised the need for “compelling circumstances” outside the Rules, and he took into account the sponsor’s health. He then weighed up all relevant factors.
10. At [27] he referred to the very close ties between the appellant and the sponsor’s parents and grandmother and then referred to s.117B of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
11. Mr Sharma relied on some of the facts in Hayat, including the fact that neither the appellant nor his wife had any legitimate expectation of a right to remain, they only being allowed into the UK on a temporary basis in that case. Here however, the sponsor is a British citizen. Although the appellant in this appeal had precarious immigration status, his status was not unlawful.
12. Although it is the case that the FtJ did not deal with the possibility of an application for entry clearance, there was in fact only one answer to the point. This is a case where the appellant had overstayed and therefore would be subject to a discretionary ban on re-entry, with reference to paragraph 320(11), and also possibly with reference to 320(7B), given that the exceptions under 320(7C) have now been deleted from the Rules. Although it does not appear that the suitability requirements for entry clearance as a partner would exclude him because of overstaying, it was submitted that paragraph 320(7B) would apply.
13. In those circumstances, any application for entry clearance would not be subject to the normal nine weeks’ application process. Furthermore, although on any refusal the appellant would be able to argue Article 8, in this case the FtJ had already decided that the appellant’s removal represented a disproportionate interference with his family life.
14. In reply, Mr Wilding submitted that there was in fact no need for the respondent to raise the Chikwamba point but in any event the decision letter does do so.
15. Furthermore, it is irrelevant that an application for entry clearance may result in refusal, following the decision in R (on the application of Chen) v Secretary of State for the Home Department (Appendix FM – Chikwamba – temporary separation – proportionality) IJR [2015] UKUT 189 (IAC). In Chikwamba v Secretary of State for the Home Department [2008] UKHL 40, the sponsor could not go back to Zimbabwe. That is not the case in this appeal.
16. Furthermore, the FtJ had failed to explain why the sponsor’s relationships with her parents and grandmother in the UK outweigh the public interest.
Conclusions
17. At the conclusion of the hearing I reserved my decision in all respects. I indicated to the parties that the decision was reserved on whether or not there was an error of law on the part of the FtJ, whether any such error of law required the decision to be set aside, and if so whether the appeal should be remitted, or reserved to be re-made in the Upper Tribunal. I also said that I may decide to re-make the decision on the basis of the evidence available to the FtT.
18. In order to put my decision into context it is necessary to refer to some aspects of the FtJ’s decision.
19. The FtJ heard oral evidence from the appellant, his wife, her parents and two other witnesses. He summarised the appellant’s immigration history to the effect that he arrived in the UK in October 2009 with leave as a Tier 4 student, valid until 30 August 2013. On 29 August 2013 he applied for further leave to remain in that capacity but the application was refused and his appeal was dismissed on 8 September 2014. He then made the application which is the subject of the decision on appeal, on 2 April 2015, following his marriage to Ms AU (on 28 June 2014), who is a British citizen and who lives with the appellant.
20. At [11] he referred to the basis upon which the appeal was advanced, namely with reference to Appendix FM in terms of insurmountable obstacles, and alternatively under Article 8 outside the Rules. There was said to be no challenge to the respondent’s decision with reference to the private life requirements of the Rules under paragraph 276ADE.
21. The evidence before the FtJ was to the effect that the appellant’s wife suffers from a variety of health problems, namely high blood pressure, diabetes and what is described as a “hormone problem”. Theirs was a love marriage, although Ms U belonged to a lower caste than that of the appellant. All of his family had told them not to come back to India. The evidence was that they would not be able to try to conceive in India because his family was not supportive, there was no accommodation, and his wife was consulting a doctor in the UK. Recently she had undergone an operation on her right knee. She was being prescribed medication so that she could conceive. The appellant did not know if that medication was available in India. The appellant said that his wife would not be able to run her business in India.
22. The appellant said that his parents were not happy with his marriage and had threatened him. All his extended family were against him and there was nowhere to live in India. He had not looked into the availability of medical care for his wife in India, or of medical assistance in helping her to conceive. His family would attack him if he went back.
23. The sponsor, Ms U, said that she had been diagnosed with polycystic ovary syndrome, which prevented them from having a baby. She also suffered from high blood pressure and diabetes and had suffered anxiety attacks. She was receiving medical treatment for those conditions and she did not know if it was available in India.
24. She had her own beautician business with its own premises and staffing, and she was also in a full-time job.
25. She was born in the UK and was very close to her immediate family, especially her parents and grandmother. If her husband went back to India for a very short period of say three months, it would be very difficult to get that time off and leave her salon for that long. She had visited India for periods of between one and two weeks with her parents but had never visited the villages. Her last visit was in 2013.
26. She met the appellant in 2010 and knew that he was on a time-limited visa.
27. The FtJ also referred to evidence from the sponsor’s parents. He summarised the medical evidence, which included a letter from the sponsor’s family doctor which referred to both her parents suffering from long-term illnesses, and violence in the family from the sponsor’s brother. The sponsor’s grandmother was said to be 91 years of age and needs support from the family for all her needs. It is said by the family GP that the appellant’s presence is vital for the entire family.
28. At [21] the FtJ said that there was no serious challenge to the evidence regarding the medical conditions that the sponsor is suffering from, or in relation to their joint evidence that they would like to start their own family. He went on to state however that:
“...the appellant provided no evidence that the sponsor’s conditions could not be treated in India, or that they could both receive the appropriate support in that country with a view to starting a family.”
29. He went on to say that the sponsor’s parents are wholly supportive of the appeal and are clearly very concerned both for the appellant and their daughter. This was relevant to the question of whether the appellant and the sponsor could be accommodated in India because it emerged during the evidence from the sponsor’s parents that they own their own property there and that was the place where they first met the appellant’s parents. The FtJ concluded that it was inconceivable that they would not permit them to live there if necessary. He also concluded that given the level of support they have provided thus far, the sponsor’s parents would provide whatever financial support they could to the appellant.
30. The FtJ rejected the contention that the appellant’s family would attack him if he returned, for the reasons he gave at [22].
31. At [23] he said that if the sponsor left the UK to live with the appellant in India it would clearly result in disruption, if not termination of her employment. He also concluded that that would also be the result in relation to her self-employment. Nevertheless, he said that those matters did not form part of the considerations under Appendix FM EX.1(b) because that was concerned with private rather than family life.
32. At [24] he concluded that the appellant had not established that there are insurmountable obstacles to family life with the sponsor continuing outside the UK. He then went on to consider the appeal under Article 8 proper, outside the Rules.
33. At [26], he found that given the fact that the sponsor is a British citizen, born in the UK who has a well-established employment and self-employment, together with her health issues, there were compelling circumstances such as to require consideration outside the Rules.
34. He found that the appellant and the sponsor have family life together and that there are close ties between the appellant and the sponsor’s parents and grandmother. He concluded that the appellant’s removal would give rise to consequences of such gravity as potentially to engage the operation of Article 8.
35. So far as proportionality is concerned, he concluded that whilst he was not satisfied that there would be insurmountable obstacles to family life continuing in India, it was likely that they would not get much if any support from the appellant’s parents, given their disapproval of the marriage. Furthermore, he found that there would be significant difficulties for the sponsor in obtaining and accessing appropriate medical treatment both for her hypertension and diabetes, and also for their joint desire to start a family. He also took into account the sponsor’s relationships in the UK and her business. He said that in terms of her self-employment, there would be an impact on those whom she employs.
36. After referring to s.117B of the 2002 Act, the FtJ referred to the need to maintain effective immigration control. He found that the appellant does have an understanding of English and that he would not be a burden on taxpayers, having regard to the sponsor’s income (£18,996 per annum before tax)
37. At the time that their relationship was established, the appellant had leave to remain, and was not therefore in the UK unlawfully. He noted however, that his leave had always been precarious, and he found that little weight therefore, should be given to any private life that the appellant had established in that time. That however, did not apply to the private life of the sponsor.
38. He concluded that it would not be reasonable to expect the sponsor to accompany the appellant to India and that the factors in favour of granting leave outweigh the public interest.
39. It is clear from that summary of the FtJ’s decision that there was no consideration of the question of whether the appellant should be expected to return to India and apply for entry clearance.
40. I do not consider that there is anything to be said for the proposition that if the respondent had wanted to rely on the issue of the appellant applying for entry clearance from India, that matter should have been raised at the hearing. It is plain that the question of whether an application for entry clearance from abroad should be made is always something to be considered in cases of this type.
41. Furthermore, whilst I cannot say for certain that this is a matter that was raised at the hearing, because the FtJ’s manuscript notes are not entirely clear in this respect, it certainly looks to me as if the matter was raised, albeit briefly, in submissions on behalf of the respondent.
42. In any event, as was ultimately conceded, it is clearly a matter that was flagged up in the decision letter under the heading of ‘exceptional circumstances’ whereby it is stated that it is open to the appellant to return to India in order to apply for further entry clearance under the Rules.
43. Additionally, even the appellant’s skeleton argument that was before the FtJ raised the matter at [8], with reference to the case of Chen to which I was referred on behalf of the respondent.
44. I am satisfied that this experienced judge did on this occasion err in law in failing to consider the question of the possibility of making of an application for entry clearance from abroad. This was clearly a factor that was potentially relevant to the assessment of proportionality. However, the question is whether that is an error of law that requires the decision to be set aside.
45. At [30] of Hayat there is a summary of the authorities on the question of the need to make an application for entry clearance. There it was said as follows:
“In my judgment, the effect of these decisions can be summarised as follows:
(a) Where an applicant who does not have lawful entry clearance pursues an Article 8 claim, a dismissal of the claim on the procedural ground that the policy requires that the applicant should have made the application from his home state may (but not necessarily will) constitute a disruption of family or private life sufficient to engage Article 8, particularly where children are adversely affected.
(b) Where Article 8 is engaged, it will be a disproportionate interference with family or private life to enforce such a policy unless, to use the language of Sullivan LJ, there is a sensible reason for doing so.
(c) Whether it is sensible to enforce that policy will necessarily be fact sensitive; Lord Brown identified certain potentially relevant factors in Chikwamba. They will include the prospective length and degree of disruption of family life and whether other members of the family are settled in the UK.
(d) Where Article 8 is engaged and there is no sensible reason for enforcing the policy, the decision maker should determine the Article 8 claim on its substantive merits, having regard to all material factors, notwithstanding that the applicant has no lawful entry clearance.
(e) It will be a very rare case where it is appropriate for the Court of Appeal, having concluded that a lower tribunal has disproportionately interfered with Article 8 rights in enforcing the policy, to make the substantive Article 8 decision for itself. Chikwamba was such an exceptional case. Logically the court would have to be satisfied that there is only one proper answer to the Article 8 question before substituting its own finding on this factual question.
(f) Nothing in Chikwamba was intended to alter the way the courts should approach substantive Article 8 issues as laid down in such well known cases as Razgar and Huang.
(g) Although the cases do not say this in terms, in my judgment if the Secretary of State has no sensible reason for requiring the application to be made from the home state, the fact that he has failed to do so should not thereafter carry any weight in the substantive Article 8 balancing exercise.”
46. I was not referred to any evidence which indicated that any period of separation whilst the appellant made an application for entry clearance would be disproportionate in Article 8 terms purely in relation to its duration. The evidence was that the appellant returning to India would not on its own terms present any particular hardship to him as an individual. The FtJ found that he would have accommodation there. He is plainly familiar with the language, culture and customs of India.
47. It was argued that the appellant would be faced with a re-entry ban on the basis that he was an overstayer. In that respect it was said that paragraph 320(11) of the Rules would apply. However, it would be open to the appellant to invoke Article 8, having regard to the findings of the FtJ in terms of the conclusion that the appellant’s wife could not be expected to leave the UK to live with the sponsor in India. Accordingly, the only way in which they could enjoy family life would be by living together in the UK.
48. In addition, I cannot see that the question of whether the appellant would or would not be successful in an application for entry clearance has any bearing on the question of whether he should be required to leave the UK to make such an application. In this respect I agree with what was said in Chen.
49. The submissions on behalf of the respondent before me ranged more widely than the narrow basis of the grounds seeking permission, and upon which permission to appeal to the Upper Tribunal was granted. For example, it was argued that in the assessment of proportionality the FtJ had not considered anything beyond what he had decided in terms of the Rules at [24], namely that there were no insurmountable obstacles to family life continuing in India. It was also said that the FtJ had failed to explain why the further considerations identified at [28] were sufficiently weighty to outweigh the public interest.
50. I can see that there is a certain inconsistency in the FtJ’s conclusions in terms of insurmountable obstacles under the Rules and Article 8 proper. As I also observed at the hearing, the FtJ’s conclusions in relation to the extent to which Ms U would be able to obtain medical treatment in India are also arguably inconsistent, as between paragraphs [21] and [28]. I further note that there could be said to be inconsistency in the FtJ’s findings in terms of any potential support from the appellant’s parents, as between [22] and [28].
51. However, neither the matters referred to at [49] above nor the additional matters I have identified formed the basis upon which permission was sought or granted, and there was no application to amend the grounds. The complaint in the grounds that the FtJ appeared to have used Article 8 as a general dispensing power does not advance any particulars in relation to that argument, the point being confined in the grounds to the entry clearance issue.
52. In any event, when one looks at the FtJ’s conclusions at [27] and [28] one finds reference to a number of factors which led him to conclude that family life between the appellant and his spouse could only realistically be continued in the UK.
53. Whilst in Chen at [36] it was doubted that what said in Hayat about there being the need for a “sensible reason” for enforcing a policy of making an application for entry clearance, amounted to a test to be applied, there must be some rationality to an expectation that a person in the appellant’s circumstances should be expected to return and apply for entry clearance.
54. On the basis of the FtJ’s findings, but for the fact of the appellant having overstayed, he would meet the requirements of the Rules for entry clearance as a spouse. The FtJ identified medical evidence which established that Ms U has various physical health conditions, as do her parents. There was evidence of the support that the appellant gives to his wife and the family as a whole. The medical evidence was to the effect that the stress of “the situation” (presumably the appellant’s status) has an adverse effect on his wife’s health.
55. In all those circumstances, apart from the legitimate desire to prevent circumvention of the process of making an appropriate application for entry clearance as most are required to do, I cannot see that the FtJ would have concluded that requiring the appellant to make an application for entry clearance would be anything other than a disproportionate interference with the appellant’s (and his wife’s) family life. In other words, I do not consider that the error of law on the part of the FtJ could have affected the outcome of the appeal, having regard to his findings and the evidence before him.
56. It follows that I am not satisfied that the error of law is such as to require the decision to be set aside.
57. Even if I had concluded that the FtJ’s decision should be set aside, on a re-making of the decision I would have allowed the appeal under Article 8, in the light of the FtJ’s findings and balancing all the matters I have set out above.

Decision
58. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision is not set aside however, and the decision of the First-tier Tribunal to allow the appeal therefore stands.

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

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

Upper Tribunal Judge Kopieczek 1/03/17