Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24179/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 3 January 2018

On 19 January 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

QS
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Himself
For the Respondent: Mr S Kotas (Senior Presenting Officer)

DECISION AND REASONS

1. This is the appeal of QS, a citizen of Pakistan born [ ] 1986, against the decision of the First-tier Tribunal dated 3 March 2017, dismissing his appeal against the refusal of his human rights claim of 15 June 2015. As he has made an application for anonymity in his grounds of appeal which was unopposed by the Respondent, I have granted that application, simply out of an abundance of caution, on the basis that it would be undesirable, given he has not so far considered it necessary to claim asylum, for some publicity inadvertently given to his appeal to create risks not otherwise present.

2. The immigration history supplied by the Respondent is that QS entered the UK on 4 June 2012 with leave as a student until, ultimately, 30 March 2015, at which point he made the application leading to this appeal.

3. The present application, of 27 March 2015, was based on his relationship with PH, his unmarried partner; they had been together for five months.

4. The application was refused because the couple did not satisfy the definition for partners: they had not cohabited for two years as at the date of decision. Given the short duration of their relationship, it was not accepted that he was in a genuine parental relationship with her son, born in 1998. It was not accepted there were very significant obstacles to his future integration in Pakistan, where his mother and five siblings still resided, given he spoke the language and had lived there most of his life.

5. By the time of the appeal hearing, the Appellant had married PH. Before the Tribunal, he put his case on the basis that their relationship was genuine and they would face insurmountable obstacles to relocation to Pakistan. In his grounds of appeal, he did not mention this issue, but by the time of the hearing, he had produced further evidence, including his own witness statement, setting out the problems he would have on a return to Pakistan given his family's reaction to his wife's religion.

6. The First-tier Tribunal found that there were not necessarily any compelling reasons justifying considering the case outside the Rules: an Appellant seeking such an outcome should make a further application. However, in fact it went on to consider all relevant considerations in any event. It considered the evidence before it, and found that the claimed marital relationship was not a genuine one, because it decided that the elements of consistency in their evidence as to their relationship was outweighed by the discrepancies in significant aspects of their evidence, such as the date they began cohabiting and when they became engaged.

7. Both claimed that the Appellant proposed on Ms PH's birthday, but gave differing dates. The Appellant said this was 1 November 2014; PH said this was 12 March 2015. Her real birth date was 12 March 1975, whereas the date given by the Appellant coincided with that on PS's passport, which was in fact incorrect. The Tribunal concluded that they had agreed to give evidence that they had become engaged on the Sponsor's birthday, but that their plans ran aground as the Appellant was not aware of the different date of birth given on her passport.

8. The First-tier Tribunal also rejected the Appellant's evidence given about threats from the Appellant's family. His skeleton argument stated that he had lied to his family about his partner's religion, saying she was willing to convert to Islam; his family had shunned him since learning that his partner was a Buddhist. In his witness statement he wrote that he received a warning letter from his brother threatening his life and his wife's safety, shunning him for the humiliation he had brought his family. The letter stated that he had lied to his family: he had first told them that she was a Christian and was willing to convert. Each articulation of the account therefore showed that the letter was sent after the couple married. However, at the hearing, he said that he had told them ahead of the wedding that she was a Buddhist, to gauge their reaction, some two months before the marriage.

9. Furthermore, he had stated that he had a troubled upbringing in Pakistan because his family were extremist in outlook: accordingly it was extraordinary that he would have expected any reaction other than that which he asserted eventuated. Furthermore, the letter from the family was essentially self-serving, and it was not proven to have been posted in Pakistan.

10. In any event the couple were resourceful and resilient, having migrated successfully to the UK, and could reasonably be expected to return to Pakistan, and even if Article 8 ECHR was engaged, and less weight was to be afforded their relationship given the Appellant's precarious immigration status at the time it was formed.

11. The Appellant lodged grounds of appeal, again representing himself. The grounds are extraordinarily long and repetitive and cite a great deal of legal authority which is not material to the basis on which the appeal failed. As the Appellant is not represented, I have done my best to distil them down to ensure that his case receives the appropriate close scrutiny. Essentially the case put is that
(1) He lacked legal representation and accordingly was now providing "other situations, facts and information which was not described before" with only limited legal assistance from a friend;
(2) The Appellant's wife lacked confidence for numerous reasons and was not comfortable in a formal interview setting, and he himself suffered from depression and insomnia, and neither had attended a court hearing previously;
(3) In reality the Appellant and his wife were both perfectly aware of the date of her birthday and the date of the proposed engagement and would have given consistent evidence had they been less nervous, as was shown by a number of anecdotes about their family life together - indeed, had they intended to be dishonest, surely they would have rehearsed their evidence to ensure its consistency;
(4) The Appellant's English language proficiency was limited, leading to an imperfection of expression when he tried to explain how he had always sought to retain a relationship with his parents if reasonably possible, which had included informing them of the truth as to his betrothed's true religion so close to the actual time of marriage that there was scope for confusion as to whether, from their perspective, the marriage had taken place or not;
(5) He had been very upset to hear of his mother's extremely serious illness;
(6) The fact he had decided not to try and become a Jehovah's Witness in order to procure refugee status demonstrated his honesty;
(7) His previous solicitors had "misguided" him on many occasions which had contributed to an earlier adjournment of his appeal hearing;
(8) The Appellant would be in danger on a return to Pakistan as a moderate Muslim particularly given the circumstances around his marriage to his wife;
(9) Applying the five-stage Razgar approach to the private and family life of him and his wife, it should be accepted that their return to Pakistan would represent a disproportionate interference with their Article 8 rights.
12. Judge Coker gave permission to appeal on 30 October 2017, noting that the grounds of appeal were lengthy and sought to re-argue factual issues, but that nevertheless it was arguable inadequate reasons were given for the Tribunal's conclusions, which might be perverse.

13. In a Rule 24 response of 16 November 2017, the Secretary of State argued that the First-tier Tribunal was entitled to take the view that the relationship relied upon was one of convenience, given the evidence before it at the oral hearing.

14. Before me the Appellant relied on his grounds of appeal - I emphasised that he was free to add further information, but should not repeat material which I had already read, and I sought to summarise his grounds of appeal in order for him to appreciate that I understood the principal points he relied upon.

15. Mr Kotas submitted in response that the decision of the First-tier Tribunal was a reasonable one and there was no misdirection of law; the Judge had been entitled to come to the conclusions he reached. He pointed out that the appeal had previously been adjourned for an asylum claim to be made if the Appellant sought to do so, but that opportunity had not been taken. Accordingly the First-tier Tribunal was perfectly correct to treat the Appellant's problems simply as an "insurmountable obstacles" case relevant to the assessment of the proportionality of the interference with family life.

Findings and reasons

16. Notwithstanding the vast quantity of documents and pleadings provided by the Appellant, the issues in this appeal are very simple. As his case could not succeed under the Immigration Rules, as at the date of application he was not a "partner" having lived with her for less than two years, he had no access to the Partner route under Appendix FM. That left consideration of his case outside the Rules, and as a person who had married a settled person when his own residence in the UK was short-term and thus precarious, he had to establish insurmountable obstacles to relocation to Pakistan. He sought to do so via his account of his family's reaction to the revelation of his wife's true religion.

17. I do not consider that the First-tier Tribunal was entitled to make the findings that it did regarding the genuineness of the marriage. Given the Appellant was unrepresented and the issue of the relationship's genuineness arose only at the hearing (one can see it being raised in the submissions of the Home Office advocate below), some caution was appropriate before the matter was resolved against him. It may well be true that the matter arose at the hearing because of the content of evidence, including the witness statements, that were put before the First-tier Tribunal by the Appellant himself. However he and his wife had nevertheless put forward a significant volume of material that was potentially corroborative of the reality of their relationship, such as the witness statements of friends.

18. Although the evidence of the Appellant and his wife differed as to details of two significant aspects of their relationship's history, I do not think that should have been treated as determinative of their credibility absent express consideration of the material which was in their favour, which went beyond the fact that much of their account was in fact consistent, a matter which was expressly mentioned by the First-tier Tribunal. So I consider that it was an error of law, by way of failing to take account of relevant considerations, for their relationship to be treated as a sham.

19. If this was the only relevant issue in the appeal, it would require that the matter be re-heard. However, whether or not their relationship is genuine, the couple would still have to establish insurmountable obstacles (or exceptional circumstances) to their relocation to Bangladesh for their appeal to be viable.

20. As to the finding on "insurmountable obstacles", the difficulties that the Appellant would suffer at the hands of his family were predicated on him establishing the truth of their reaction to the news of his marriage to a non-Muslim. As his account of the timing of the revelation as to his wife's religious belief was central to that case, it was perfectly appropriate for the Tribunal to critically examine it. It found his explanation wanting. His grounds of appeal and oral submissions identified no evidence before the First-tier Tribunal that suggested his family might have come to know of any difficulties before the moment of the marriage itself. Accordingly it seems to me that the First-tier Tribunal was perfectly entitled to rely on the significant discrepancy that it identified regarding the timing of this revelation.

21. Furthermore, it is difficult to see that the finding as to his family's reaction to the marriage was essential to the outcome of the appeal in any event. The Appellant had chosen not to claim asylum, which would the normal course to take for a person asserting a fear of serious harm against which their national authorities would not protect them and where internal relocation was not available. Instead, he has essentially sought to argue such a case as a dimension of his Article 8 claim. In so doing, he put forward no cogent objective evidence as to how it would be that his family would be able to track him down anywhere in Pakistan, or why the authorities would not protect him if they did, or why life elsewhere would pose insurmountable obstacles to the couple even if they were free from risks of serious harm.

22. Given he is an educated man with the advantage of having studied in the UK for some time and having achieved a degree of proficiency in the English language, it would be surprising if he and his wife would face serious difficulties in Pakistan.

23. The grounds of appeal put forward by the Appellant, even when distilled down as sympathetically as is reasonably possible in order to turn them into a case fit for analysis on appeal, do not demonstrate that any material error of law. They simply amount to attempts to contest the factual conclusions of the First-tier Tribunal without identifying any error of principle in the fact-finding it carried out. They mostly amount to a reiteration of the case put previously, admittedly relying on elements of post-decision evidence which are not differentiated from the material that was before the First-tier Tribunal. Arguments that the honesty of the couple is clearly shown by the fact that they did not engage in more elaborate exercises in deceit than that to which the First-tier Tribunal attributed to them are highly unpersuasive: a witness must be assessed on the material they actively put forward, not credited for declining to connive to mislead this country's public authorities.

24. I do not accept that the Appellant was let down by his previous legal advisors. He has not evidenced any complaint that he has pursued against them. As to any concerns he may have arising from his religious beliefs or his marriage to his wife beyond those dealt with so far arising from his family, there is no reliable independent objective evidence to suggest that persons in their position would face serious discrimination or other harm if they relocate to Pakistan.

25. I accordingly find that the appeal fails as the grounds establish no material error of law.

Decision

26. The decision of the First-tier Tribunal was lawful and I dismiss the appeal.

Signed Date 3 January 2018

Deputy Upper Tribunal Judge Symes