Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23629/2015

THE IMMIGRATION ACTS

Heard in Birmingham
Decision & Reasons Promulgated
On 6 March 2017
On 15 March 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MR SAIFUL ISLAM
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Lane, Counsel instructed by Samad & Co Immigration
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. There are no reasons to make one in this case.

DECISION AND REASONS

Background
1. The Appellant appeals against the decision of First-tier Tribunal Judge Lodge promulgated on 18 May 2016 (“the Decision”). By the Decision the Judge dismissed the Appellant's appeal against the Respondent's decision dated 18 June 2015 refusing his human rights claim based on his private life.
2. The background facts of the Appellant’s case are not in dispute. He is a national of Bangladesh. He arrived in the UK aged thirteen and is now aged twenty-two. He claims to have been abandoned by his parents and the Respondent has not disputed that assertion. He lives with his sister and brother-in-law and another brother in the UK. He has five other siblings in Bangladesh with whom he claims to have no contact.
3. The Judge dismissed the appeal finding that the Appellant could not show that there would be very significant obstacles to his integration into Bangladesh (applying paragraph 276ADE(1)(vi) of the Immigration Rules – “the Rules”) and that removal would not be disproportionate.
4. Permission to appeal was refused by First-tier Tribunal Judge Dineen on 22 September 2016 in relation to the challenge to the dismissal of the claim outside the Rules. Permission was granted however in relation to the Rules-based challenge in the following terms:-
“[3] It is complained that at [18] and [21] the judge wrongly applied the test of insurmountable obstacles in applying paragraph 276ADE of the Immigration Rules.
[4] This is an arguable material error of law.
[5] The remainder of the grounds of application do not go beyond disagreement with the judge’s decision and do not show arguable grounds of appeal.”
5. The terms of the grant appear to relate specifically to [4] of the Appellant’s grounds which reads as follows:-
“[4] Firstly, the judge recognises at para.15 that the Appellant’s case fell to be considered under IR§276ADE(1)(vi) which states that “(vi) subject to sub-paragraph (2) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK”. Despite the judge identifying ‘very significant obstacles’ to be the relevant test, the judge then goes on to apply a different test – that of ‘insurmountable obstacles’ (see paras 18 and 21). It is arguable therefore that the judge has applied a test imposing a higher threshold and therefore falls into error of law.”
6. The appeal comes before me to determine whether there is a material error of law in the Decision and if so to either re-make the decision or remit to the First-tier Tribunal to do so.
Grounds and submissions
7. Having directed my attention to the paragraphs of the Decision where the Judge is said to have fallen into error by adopting the wrong test, Mr Lane submitted that this is not simply a question of the use of incorrect language and semantics. The two tests of “insurmountable obstacles” and “very significant obstacles” are, he submitted, slightly different in nature.
8. Mr Lane drew my attention to EX.1 which contains the formulation of “insurmountable obstacles”. He accepted that EX.2 expands upon the definition by reference to “very significant difficulties” and “very serious hardship” which might suggest that there is little difference between that test and that of “very significant obstacles”. However, he drew my attention to the cases of Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 00640 (IAC) (“Gulshan”) and Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 (“Kamara”) which he submitted show that there is a difference of approach so that the two tests cannot be used interchangeably. In essence, that difference is, he submitted, that insurmountable obstacles are concerned with the practicalities of a couple returning to a country of which one of them is, at least usually, not a national and whether the couple can continue to conduct their family life in that country whereas the test of very significant obstacles is directed at (re)integration of a national of that country. The issue of whether a couple should be expected to continue their family life outside the UK is a matter of choice in circumstances where the couple have formed their relationship at a time when one of them had no basis to stay in the UK permanently. The issue of reintegration is a different matter since it does not relate to choice. It does not concern the level of interference with private life built up in the UK but the question whether it would be possible to resume a private life in the country of destination.
9. Although Mr Lane accepted that he did not have permission to challenge the Decision other than on the narrow ground set out in the permission grant at [4] above, he drew my attention to the matters set out at [6] of the grounds which he said were relevant to the materiality of the error. He directed my attention to [15] to [21] of the Decision which contain the Judge’s reasoning for finding as he did on this issue. He submitted that the Judge had failed to look at the issue of integration other than through the lens of whether the Appellant speaks Bengali and the length of time that he has been out of the country. He was though constrained to accept that the Judge also considered that the Appellant had maintained ties with the Bangladeshi culture via his community in the UK. He submitted though that the Judge had left out of account the crucial question of how the Appellant could integrate in Bangladesh when he says he has no support network there. Although the Judge did not necessarily accept this, finding that it was unlikely that the Appellant would not have maintained his contact with his siblings there, Mr Lane pointed out that the Judge had assumed for the purposes of the appeal that the Appellant did not have that contact.
10. In response, Mr Mills accepted that the Judge had used the wrong terminology in the paragraphs in question. However, he submitted that this is merely a question of semantics. He submitted that it was not possible to distinguish between the two tests once the terms of EX.2 and what is said by the Courts in Agyarko v Secretary of State for the Home Department [2017] UKSC 11 (“Agyarko”) are taken into account.
11. The main difference between EX.1 and paragraph 276ADE(vi) is, Mr Mills argued, that one deals with family life and therefore envisages a return with a partner and one is concerned with removing an individual alone. If anything, the test would be higher in the former case since what is envisaged is the return of a partner who will in all probability have no experience of the destination country.
12. Even if there were an error, Mr Mills submitted that it would not be material on the facts of this case as assessed by the Judge. Although he accepted that the Judge had not made a clear finding that the Appellant would have family to whom he could turn in Bangladesh, he pointed out that this was not an acceptance that there was no family with whom the Appellant could make contact. Even if the Appellant has no contact with his relatives there, the Judge found that the Appellant could speak the language or would be able to pick it up again, had lived in Bangladesh until he was aged thirteen, could adapt to life in the UK and at his young adult age could re-adapt to life in Bangladesh. The Appellant was also found to have maintained his cultural links by contact with the Bangladeshi community in the UK.
13 In relation to the case-law relied upon by Mr Lane, Mr Mills submitted that this does not take the issue any further. Kamara merely sets out the factors relevant to the question of integration and does not distinguish between the two tests. The Court of Appeal in Agyarko makes clear that “insurmountable obstacles” are not ones which cannot be overcome but simply reflects the threshold of difficulty.
14. At the end of the hearing, I indicated that I reserved my decision in relation to whether there is an error of law in the Decision and would issue my decision in writing. Both representatives agreed that if I found an error of law, the decision should be re-made in the Upper Tribunal. Mr Lane indicated that, if I found a material error of law, on the Appellant’s case, the Judge has failed to make some findings of fact. Accordingly, he asked for a resumed hearing to deal with the fact-finding which he said still needed to be conducted.
Discussion and conclusions
15. The passage criticised by the Appellant bears setting out in full:-
“[15] It is conceded that under the Rules only 276ADE(vi) is available to the Appellant. To succeed the Appellant must show that there would be very significant obstacles to his integration into Bangladesh if he were required to leave the UK.
[16] The Appellant is 22 years of age. He entered the UK when he was 13 and has therefore been in the UK almost ten years. He claims to be abandoned by his parents and the Respondent does not appear to challenge that assertion. I accept therefore that his parents would not be able to assist his integration into Bangladesh. He has a number of siblings, four sisters and a brother. He says he has no contact with them. I find that unlikely, even if his parents abandoned him and his brother I find it unlikely the siblings would not have kept in contact both with himself, his brother or his sister in the UK. However, for these purposes I will accept that is the case.
[17] His main contention is that he does not speak Bengali and that would prove an insurmountable obstacle to reintegration into Bangladeshi society. I reject that. He came to the UK at 13 years of age speaking only Bengali. He came to the UK with his younger brother who also at that time spoke only Bengali. He joined his sister who is Bengali and who is married to a Bengali. I form that latter conclusion from the father’s name on the death certificate. He and his brother must have spoken Bengali for some little time following his arrival and almost certainly with his sister and her husband. Perhaps now they only speak English within the home but I cannot find that he will have lost his Bengali entirely.
[18] Even if he has lost his Bengali I am satisfied he would soon acquire it. I cannot find even if he has lost all his Bengali he would not be able to speak Bengali very quickly after his return to Bangladesh. I cannot find that would be an insurmountable obstacle to his integration into his home country.
[19[ More generally he would appear to be a member of the Bangladeshi community in the UK (see C2 Home Office bundle), regularly attending the mosque. He has letters of support from fellow Bangladeshis. He has I find retained his cultural and social ties to Bangladesh and appears to be part of the Bangladeshi community in the UK.
[20] He is 22 years of age and has spent the first thirteen years of his life in Bangladesh. He has managed to adapt to English society and I am quite sure he could readapt to Bangladeshi society just as ably.
[21] I cannot find there are insurmountable obstacles which would bring him within 276ADE”
16. As noted in the course of submissions, the test in relation to “insurmountable obstacles” is that set out in paragraph EX.1(b) of Appendix FM to the Rules and relates to the difficulties which a couple would face continuing their family life outside the UK. The level of what constitutes “insurmountable obstacles” is defined further in EX.2 which reads as follows:-
“For the purposes of paragraph EX.1(b) ‘insurmountable obstacles’ means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”
See also [43] to [45] of the Supreme Court judgment in Agyarko.
17. In support of his proposition that “insurmountable obstacles” and “very significant obstacles” are qualitatively different tests, Mr Lane referred me to two cases. He relied upon what is said at (c) of the headnote in Gulshan that “insurmountable obstacles” are not “obstacles which are impossibly to surmount… they concern the practical possibilities of relocation…” In contrast, Mr Lane submits, the issue of whether there are “very significant obstacles” to integration is as set out in Kamara at [14]:-
“[14] In my view, the concept of a foreign criminal’s “integration” into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of “integration” calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.”
18. In spite of the eloquence of his submissions, I am quite unable to accept that the passages which Mr Lane relies upon support his proposition. The point on which permission is granted is not what is meant by integration but what is the level of obstacles to be shown in that regard. Although the decision in Gulshan refers to insurmountable obstacles as concerning “practical possibilities of relocation” that headnote should not be taken out of context. The Tribunal makes reference at [13] to Home Office guidance then in force which refers to “a barrier which either cannot be overcome or would present a very high degree of hardship to the partner such that it amounts to an insurmountable obstacle”. That then is no doubt what the Tribunal had in mind when rejecting the former proposition. It did not however reject the latter. By referring to the practical possibilities of relocation it should not therefore be assumed that the Tribunal was laying down any different test than that which is now set out in EX.2 as recently approved by the Supreme Court in Agyarko. That then is a question of whether there are “very significant difficulties” or “very serious hardship”.
19. I note in passing that if “practical possibilities” were the definition of “insurmountable obstacles”, and if the Appellant’s submission were accepted, the Judge would appear to have adopted a lesser rather than more stringent test. I did not though understand Mr Lane to be submitting that what was said in Gulshan was the level of the test; rather that the issue is a different one. Mr Mills did not dispute that. As he pointed out, one is concerned with whether a couple can continue their family life outside the UK, the other is concerned with whether an individual can return to his home country and resume his private life there. That though is not the issue on which the Judge is said to have erred nor in relation to which permission was granted. The point on which permission was granted turns on the wording of the level of the obstacles which the Appellant has to show not the nature of those obstacles. Mr Lane’s submissions in this regard appear to conflate the two issues.
20. The issue whether the Judge understood that what he had to consider was obstacles to integration and not obstacles to a couple relocating is not determined by whether he referred to those obstacles as “insurmountable” or “very significant”. It is determined by the context in which those obstacles are considered. Looking at the passage which I have set out at [15] above, the Appellant’s submission in that regard clearly has no merit. The references which are criticised appear at [17], [18] and [21] of the Decision. However, in the first two of those paragraphs, the Judge clearly refers to “insurmountable obstacles to reintegration”/ “insurmountable obstacles to his integration”. The third which contains the Judge’s conclusions refers to “insurmountable obstacles which would bring him within 276ADE”. Those references to “integration” coupled with the reference to the guiding test set out at paragraph 276ADE(vi) at the start of the passage in question satisfy me that the Judge clearly knew the test which he had to apply in terms of the level of the test. Moreover, he clearly understood that what was in issue was whether the Appellant could integrate in his home country.
21. The Appellant was not granted permission to challenge the reasoning and findings in relation to the factors which the Appellant said prevented him integrating. The Judge refusing permission on those grounds was right to do so. With particular regard to the very short statement of the Appellant at [AB/1-2] coupled with the oral evidence recited at [7] to [9] of the Decision, the Judge clearly considered the factors which were raised but rejected those as being obstacles of a sufficient magnitude to prevent the Respondent from removing the Appellant to his home country. Permission was refused in relation to the rejection of the Appellant’s claim outside the Rules.
22. For those reasons, I am satisfied that the Decision did not involve the making of a material error of law. I therefore uphold the Decision.

DECISION
The First-tier Tribunal Decision did not involve the making of a material error on a point of law. I therefore uphold the First-tier Tribunal Decision of Judge Lodge promulgated on 18 May 2016 with the consequence that the Appellant’s appeal is dismissed.

Signed Dated: 14 March 2017
Upper Tribunal Judge Smith