Tribunal decisions

The decision

IAC-AH-BW-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23256/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th March 2017
On 3rd April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

the Secretary of State for the home department
Appellant
and

Lydia Meriku
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr P Singh, Senior Home Office Presenting Officer
For the Respondent: Mrs P Glass, of Counsel instructed by Chancery Solicitors

DECISION AND REASONS
Introduction and Background
1. The Secretary of State appeals against a decision of Judge Wilsher of the First-tier Tribunal (the FTT) promulgated on 6th September 2016.
2. The Respondent before the Upper Tribunal was the Appellant before the FTT and I will refer to her as the Claimant.
3. The Claimant is a female Ghanaian citizen born 4th April 1974. She appealed to the FTT against the Respondent’s decision dated 14th April 2015 to refuse her application for leave to remain in the United Kingdom which was based upon her family and private life.
4. The Claimant entered the United Kingdom on 13th September 2005 as the dependant of her husband, who had been granted a visa enabling him to study in the United Kingdom. The Claimant and her husband had married in Ghana on 10th January 2004.
5. The Claimant’s leave was subsequently extended as a dependant of a student, in line with leave granted to her husband as a student. She was granted leave until 8th August 2011.
6. On 28th July 2011, prior to expiry of her leave, the Claimant applied for further leave to remain as the dependant of a student. This application was rejected as being invalid because the Claimant had completed the wrong application form. According to section 3 of the appeal form lodged with the FTT, the application was rejected on 16th September 2011. The Claimant then submitted a further application for leave to remain as the dependant of a student on 15th November 2011.
7. For reasons unknown the Claimant had not received a response to this application by the time her husband was granted indefinite leave to remain on 20th November 2014. On 26th November 2014 the Claimant applied to vary her application for leave to remain, so that the application now to be considered was as the spouse of a person present and settled in this country.
8. That application was refused on 20th January 2015 with reference to paragraph 284(iv) of the Immigration Rules as the Claimant had remained in the United Kingdom in breach of the immigration laws as her leave to remain had expired on 8th August 2011, and she had made her application on 15th November 2011.
9. Although this decision did not carry a right of appeal, the Claimant entered an appeal. In addition the Claimant lodged a further application for leave to remain based upon her family and private life, and this application was made on 6th February 2015. It was this application that led to the Respondent’s refusal dated 14th April 2015.
10. Having received that refusal, the Claimant did not appeal, but waited for the appeal hearing against the decision dated 20th January 2015. That hearing took place on 19th June 2015 and Judge Samimi of the FTT found that the Claimant’s appeal was invalid, agreeing with the Respondent that the decision dated 20th January 2015 did not carry a right of appeal to the FTT.
11. The Claimant then applied for an extension of time in which to appeal against the Respondent’s decision dated 14th April 2015, and time was extended so that her appeal was lodged.
12. Reasons given by the Secretary of State for the decision dated 14th April 2015 were that the Claimant did not satisfy the requirements of EX1.(a) of Appendix FM, as she did not have a genuine and subsisting parental relationship with a child in the United Kingdom. The Claimant and her husband have a daughter, born 11th November 2004, but she has always lived in Ghana. It was not accepted that the Claimant satisfied EX1.(b) of Appendix FM as there were no insurmountable obstacles to the Claimant and her husband enjoying family life outside the United Kingdom.
13. The Secretary of State considered paragraph 276ADE(1) concluding that the Claimant could not succeed on the basis of her private life, because there would be no very significant obstacles to her integration back into Ghanaian society.
14. The Secretary of State did not consider that there were any exceptional circumstances outside the Immigration Rules which would justify granting leave to remain pursuant to Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention).
15. The Claimant’s appeal was heard by the FTT on 16th August 2016. The FTT concluded that there were no insurmountable obstacles to the Claimant and her husband enjoying family life in Ghana. The FTT concluded at paragraph 7;
“The claim under the Rules must fail therefore.”
16. The FTT then went on to consider Article 8 outside the Immigration Rules and found that it would be disproportionate to require the Claimant to return to Ghana, either with her husband, or in order to make an entry clearance application.
17. The FTT therefore dismissed the appeal under the Immigration Rules but allowed it on human rights grounds. It would appear, as the Secretary of State’s decision was made on 14th April 2015, after the changes to appeal rights brought about by the Immigration Act 2014, that the Claimant had in fact only one Ground of Appeal to the FTT, that being that the Secretary of State’s decision was unlawful under section 6 of the Human Rights Act 1998, as being in breach of the Claimant’s human rights.
18. The FTT decision caused the Secretary of State to apply for permission to appeal to the Upper Tribunal. In summary it was contended that the FTT had materially misdirected itself after finding that the appeal could not succeed under EX.1 because there were no insurmountable obstacles to family life continuing outside the United Kingdom, by thereafter allowing the appeal under Article 8. It was contended that the FTT had not identified any compelling circumstances to justify allowing the appeal under Article 8, having found that the relevant Immigration Rules were not satisfied. It was contended that the FTT had made contradictory findings at paragraphs 6, 7 and 8 of the decision.
19. Permission to appeal was granted by Judge P J M Hollingworth of the FTT in the following terms;
“(1) It is arguable that the judge has not set out any or any sufficient analysis in relation to whether compelling circumstances existed enabling a consideration of whether there would be a breach of Article 8 outside the rules. The judge found that the Immigration Rules were not fulfilled.
(2) At paragraph 8 of the decision the judge refers to finding that there was family life in this case. The judge then proceeded to consider the Razgar criteria.
(3) The application for permission was late but I extend time in the light of the factors put forward. I grant the application.”
20. Following the grant of permission the Claimant did not lodge a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
21. Directions were issued confirming that there should be an oral hearing before the Upper Tribunal, to ascertain whether the FTT decision contained an error of law such that it should be set aside.
The Upper Tribunal Hearing
Error of Law
22. In making oral submissions Mr Singh relied upon the grounds contained within the application for permission to appeal.
23. Mrs Glass submitted that the FTT had not erred in law. The Immigration Rules are not a complete code, and the FTT had identified compelling circumstances. The FTT had taken into account the circumstances as to why the Claimant’s leave had lapsed on 8 August 2011, and had been entitled to conclude that it was not her fault. Mrs Glass submitted that the Secretary of State on that point, had acted with conspicuous unfairness, and the Claimant’s error in completing the wrong form, was de minimus, and submitted case law, The Queen on the application of Mashud Kobir [2011] EWHC 2515 (Admin) in support of that submission. The FTT had also taken into account the Secretary of State’s delay in deciding the Claimant’s application for leave to remain. I was asked to uphold the decision.
24. Mr Singh responded by submitting that the FTT had not identified compelling circumstances. If the FTT relied upon the Claimant’s pregnancy, Mr Singh questioned whether the information was contained within the 45 page bundle of documents had been submitted to the FTT on behalf of the Appellant on the day of the hearing, and which the FTT had ruled should be excluded from consideration.
25. Mrs Glass explained that the evidence of the Claimant’s pregnancy was not taken from the excluded bundle of documents.
26. I reserved my decision as to error of law. Both representatives agreed that if an error of law was found as contended by the Secretary of State, then it would be appropriate for the decision to be remade by the Upper Tribunal based upon the evidence that had been before the FTT, and there was no need for a further hearing.
27. No challenge was made to the FTT conclusion that there were no insurmountable obstacles to the Claimant and her husband continuing family life outside the United Kingdom. At the date of the FTT hearing, guidance on this issue had been given by the Court of Appeal in SS (Congo) [2015] EWCA Civ 387 and at paragraph 33 of that decision it was stated that compelling circumstances would need to be identified to support a claim for grant of leave to remain outside the new Immigration Rules in Appendix FM.
28. The FTT found at paragraph 6 that there was no evidence to support the contention that there were insurmountable obstacles to family life continuing outside the United Kingdom. The FTT found;
“The only evidence of substance was a pregnancy report showing that the Appellant has a due date of 20th February 2017. There was no evidence to suggest that she could not travel back to Ghana nor that her husband could go with her.”
29. At paragraph 7 the FTT accepted that the Claimant’s husband had indefinite leave to remain in the United Kingdom but found;
“There was no evidence before me to suggest that there was serious hardship in him returning to Ghana. For the avoidance of any risk of unfairness I have reviewed the witness statements of the Appellant and the bundle that was filed although I did not permit it to be admitted as evidence. There was nothing in that that led me to a different view. The claim under the Rules must fail therefore.”
30. The FTT noted at paragraph 6 that it was suggested that the Claimant had a high risk pregnancy because she had high blood pressure, and made reference to further evidence submitted after the hearing. That evidence is an antenatal visit chart and not any form of medical report. There is a typing error at paragraph 6 of the FTT decision, the last sentence should record that “it was not stated in these that she could not travel back to Ghana to receive similar care there when she arrived.”
31. In considering whether the FTT erred in subsequently allowing the appeal under Article 8, having found no insurmountable obstacles existed to family life continuing in Ghana, I have taken into account the guidance given by the Supreme Court at paragraph 57 of Patel and Others [2012] EWCA Civ 741;
“57. It is important to remember that Article 8 is not a general dispensing power.”
32. I conclude that the FTT materially erred in law in allowing the appeal under Article 8 outside the Immigration Rules, by failing to identify compelling circumstances to justify such a decision. The fact that the Claimant was pregnant had been considered when it was decided that there were no insurmountable obstacles, the FTT finding that the evidence did not suggest that the Claimant could not travel. The fact that the Claimant had submitted an invalid application on 28th July 2011 which resulted in her remaining in the United Kingdom without leave after 8th August 2011, cannot amount to compelling circumstances to justifying allowing the appeal under Article 8. The fact that the Claimant’s husband has indefinite leave to remain is not a compelling circumstance. The FTT has not adequately explained the conclusion at paragraph 10 that it would be disproportionate to require the Claimant to return to Ghana to seek a visa to re-enter the United Kingdom, given the previous finding at paragraph 6 that there was no evidence to suggest that the Claimant could not travel back to Ghana nor that her husband could go with her.
33. For the reasons given above, I find that the decision of the FTT is flawed by a material error of law and therefore is set aside. As there was no challenge to the finding that the appeal could not succeed with reference to Appendix FM, that finding is preserved.
Re-Making the Decision
34. Although the FTT found that the claim under the rules must fail, it is not clear that there was specific consideration of the Claimant’s private life with reference to paragraph 276ADE(1). The only provision within that paragraph that may assist the Claimant is (vi) which entails the Claimant proving that there would be very significant obstacles to her integration into Ghana. On this point the burden of proof is on the Claimant and the standard of proof is a balance of probability. I take into account the guidance in Treebhawon and Others [2017] UKUT 00013 (IAC) to the effect that mere hardship, mere difficulty, mere hurdles, mere upheaval, and mere inconvenience, even where multiplied, are unlikely to satisfy the test of ‘very significant obstacles’ in paragraph 276ADE(1)(vi). The Claimant has not discharged the burden of proof. She has close relatives still living in Ghana, including her daughter who is now 16 years of age, and who the Claimant and her husband financially support. No evidence has been submitted to show that the Claimant would be unable to find employment if returned to Ghana. It has not been suggested that there would be no accommodation or that she would be destitute. There are no relevant medical issues that could not be treated in Ghana, and no language difficulties. The Claimant is a citizen of Ghana. She has spent the majority of her life in that country. The fact that the Claimant has been resident in the United Kingdom since September 2005 does not, without more, show that she would face very significant obstacles if she returned to Ghana. If her husband did not return with her, no reason has been given as to why he could not offer financial support from this country. This appeal cannot succeed with reference to paragraph 276ADE(1).
35. I then consider Article 8 and have adopted the balance sheet approach recommended by Lord Thomas at paragraph 83 of Hesham Ali v SSHD [2016] UKSC 60, and in so doing have regard to the guidance given by Lord Reed at paragraphs 39 to 53.
36. The burden of proof lies on the Claimant to establish her personal circumstances in this country, and to establish why the decision to refuse her human rights claim will interfere disproportionately in her private and family life rights in this country. It is for the Secretary of State to establish the public interest factors weighing against the Claimant. The standard of proof is a balance of probabilities throughout.
37. I have to consider the circumstances at the date of hearing. I have taken into account that the Claimant’s husband has indefinite leave to remain and has employment as an accountant. I have also taken into account the length of time that the Claimant has spent in this country. The couple have no children in this country. Mrs Glass confirmed that tragically the Claimant lost the baby that she was carrying.
38. I am satisfied that the Claimant and her husband have established a family life in this country and also established private lives.
39. I take into account that the Claimant has only ever had limited leave to remain. I find that it is her responsibility that an invalid application for leave to remain was made in July 2011, and there was then a further delay before a further application was made on 15th November 2011. I also accept that there was a very much greater delay by the Respondent before the Claimant’s application was decided. This however has not prejudiced the Claimant as the application that she made in November 2011 could not satisfy the relevant Immigration Rule.
40. I have regard to the considerations set out in section 117B of the Nationality, Immigration and Asylum Act 2002. The maintenance of effective immigration controls is in the public interest. I attach significant weight to the fact that the Claimant cannot satisfy the Immigration Rules in order to be granted leave to remain.
41. It is in the public interest that an individual seeking leave to remain can speak English and is financially independent. I accept that the Claimant can speak English, and although she is not in employment as she has no permission to work, she is financially supported by her husband. However, the ability to speak English and financial independence are neutral factors.
42. I must attach little weight to the private life that the Claimant has established, because that has been established either while her immigration status has been precarious because she has only had limited leave to remain, or while she has been here unlawfully. The Claimant has had no leave to remain since 8th August 2011.
43. The FTT made reference to Chikwamba, and on that issue I have taken into account the guidance given in R (on the application of Chen) v SSHD IJR [2015] UKUT 00189 (IAC), in which it was found that Lord Brown was not laying down a legal test when he suggested in Chikwamba that requiring a Claimant to make an application for entry clearance would only comparatively rarely be proportionate in a case involving children. I set out below the first paragraph of the headnote in Chen;
“(i) Appendix FM does not include consideration of the question whether it would be disproportionate to expect an individual to return to his home country to make an entry clearance application to re-join family members in the UK. There may be cases in which there are no insurmountable obstacles to family life being enjoyed outside the UK but where temporary separation to enable an individual to make an application for entry clearance may be disproportionate. In all cases, it will be for the individual to place before the Secretary of State evidence that such temporary separation will interfere disproportionately with protected rights. It will not be enough to rely solely upon the case law concerning Chikwamba v SSHD [2008] UKHL 40.”
44. I do not find that evidence has been submitted to prove that if the Claimant’s husband remained in the United Kingdom, and the Claimant returned to Ghana to make an entry clearance application, that this temporary separation would interfere disproportionately with family or private life. As previously stated, the evidence indicates that the Claimant would have accommodation in Ghana where her daughter is currently living with her grandmother, and in my view it would be appropriate and proportionate for the Claimant to make an application for entry clearance as the spouse of a person present and settled in this country, and to include as part of that application the financial evidence required by Appendix FM-SE of the Immigration Rules.
45. I have taken into account the Claimant’s wish to remain in this country, but I find that the weight that must be attached to the need to maintain effective immigration control, and the inability of the Claimant to satisfy the Immigration Rules, outweighs the weight to be attached to her wishes to remain here without satisfying the Immigration Rules. I therefore conclude that the Claimant’s removal from the United Kingdom would be proportionate. Her husband would then have the choice either to accompany her back to Ghana, or to remain in the United Kingdom and support her application for entry clearance from abroad.

Notice of Decision
The decision of the First-tier Tribunal contained an error of law and was set aside.
I substitute a fresh decision.
The Claimant’s appeal is dismissed.

Anonymity
The FTT made no anonymity direction. There has been no request for anonymity made to the Upper Tribunal, and I seen no need to make an anonymity order.

Signed Date

Deputy Upper Tribunal Judge M A Hall 27th March 2017

TO THE RESPONDENT
FEE AWARD

The Claimant’s appeal is dismissed. There is no fee award.

Signed Date

Deputy Upper Tribunal Judge M A Hall 27th March 2017