Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA241992013

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8th June 2016
On 20th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

Mrs Zaitoon Bibi
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Z Nasim of Counsel
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appeals against the determination of First-tier Tribunal Judge Jacobs-Jones, promulgated on 7 January 2015, dismissing her appeal on human rights grounds against the respondent's decision, dated 29 May 2013, to remove her from the UK.
2. The background to this case is that the appellant entered the UK on 6 August 2011 as a visitor with leave to remain until 10 January 2012. On 5 January 2012 the appellant applied for leave to remain in the UK on a compassionate basis, as she wished to donate a kidney to the sponsor. The appellant had married the sponsor, Mr Syed Wajid Hussain Shah (a citizen of Pakistan born on 2 April 1963) on 10 December 1995. The information indicates that they had separated in 2005 when he came to the UK and the sponsor was granted a Certificate of Approval (marriage) to marry a British citizen on 15 October 2009 but it is understood that she left him and that the certificate expired on 15 January 2010. The sponsor was diagnosed with chronic renal failure in 2009 and the information indicates that the appellant was reintroduced to the sponsor by his niece.
3. The respondent refused the appellant's application on the basis that although the sponsor had lived in the UK since 2005 and was in employment the respondent did not accept that there are insurmountable obstacles to family life continuing outside the UK. Furthermore the respondent was not satisfied that the appellant could meet the requirements of paragraph 276ADE of the Immigration Rules as she had not lived in the UK continuously for twenty years and maintained her ties to Pakistan. The appellant's application was refused under paragraph 276ADE and paragraph E-LTRP of Appendix FM.
4. The appellant's initial appeal on 17 June 2013 was dismissed by Judge of the First-tier Tribunal Howard on 3 February 2014. That decision was set aside by the Upper Tribunal on the basis that the First-tier Tribunal Judge's fact-finding exercise and proportionality exercise were flawed to the extent that it was a material error. The appeal was then remitted to the First-tier Tribunal for a fresh finding of facts on all issues. That appeal came before Judge Jacobs-Jones, on 17 December 2014, who dismissed the appeal on human rights grounds
5. The appeal came before me. I heard submissions from both representatives.
6. Permission to appeal to the Upper Tribunal was granted by a Judge of the First-tier Tribunal on 11 May 2016 on the basis that it was arguable that (a) it had been unnecessary for the Tribunal to find compelling circumstances that were not within the contemplation of the Immigration Rules in order to undertake a full Article 8 assessment given that the Rules which express the respondent's view of its operation were not in force at the time when the appellant made her application; and (b) the Tribunal failed to undertake such an assessment and it was argued that the Tribunal had conflated the second and fifth questions in Razgar in the final sentence of paragraph [16]; and (c) that the outcome of the appeal would have been different had a full Article 8 assessment been undertaken.
Decision on Error of Law
7. Mr Nasim sought at the hearing to amend the grounds of appeal to argue that in his view the judge had failed to consider postdecision evidence, permission was refused. I was clearly of the view that the motion came too late; the respondent's representative had no previous intimation of this ground prior to the morning of the hearing and there were difficulties in him seeking to address this ground when he had been given no notice that it was to be raised. In addition, there was no adequate explanation as to why this ground had not previously been raised, in particular when permission was sought. In any event, in the alternative, for the reasons set out below I am not satisfied that this ground discloses any error, material or otherwise.
8. In relation to the grounds of appeal on which permission was granted, although it was stated that the Rules set out in the Reasons for Refusal Letter, in relation to Appendix FM, were not in operation at the date of application, I am bound by Singh v The Secretary of State for the Home Department [2015] EWCA Civ 74. Although the appellant's application was made in January 2012, Singh is authority for the proposition that the old Rules only apply to decisions made between 9 July and 6 September 2012 as from that date the respondent was entitled to:
"take into account the provisions of Appendix FM and paragraphs 276ADE - 276DH in deciding private or family life applications even if they were made prior to 9 July 2012. The result is that the law as it was held to be in Edgehill only obtained as regards decisions taken in the two month window between 9 July and 6 September 2012."
9. Although, as discussed at the hearing, the judge arguably fell into error in not making a finding as to the applicable Immigration Rules at the date of decision, such cannot be material as it was not argued before me that the appellant could succeed under Appendix FM. Therefore any error the judge made was not material.
10. In relation to the consideration of Article 8 outside of the Rules, although Mr Nasim belatedly argued that the judge erred in paragraph 21 in stating that the appellant had failed to show that there were that exceptional circumstances that would warrant a grant of leave to remain in the UK on the basis of her private and family life, I am not satisfied that this is properly arguable.
11. I directed Mr Nasim to SS (Congo) [2015] EWCA Civ 387 where the Court of Appeal restated that compelling circumstances would have to apply to justify a grant of leave to enter or leave to remain where the Immigration Rules are not complied with.
12. I have also reminded myself that whether circumstances are described as 'compelling' or 'exceptional' is not a matter of substance and that 'in practice they are likely to be both compelling and exceptional, but this is not a legal requirement' (R (on the application of Sunassee) v Upper Tribunal (Immigration and Asylum Chamber) [2015] EWHC 1604 (Admin)).
13. I am satisfied that the judge directed himself appropriately in finding that there were no such circumstances.
14. In any event, the judge did conduct an assessment of Article 8 outside the Rules and I am not satisfied that any slip he made in setting out the Razgar test, disclosed any material error. The judge clearly carried out the balancing exercise in terms of proportionality and directed himself properly as to Section 117B of the 2014 Act.
15. Although Mr Nasim argued that the judge fell into error in not taking into account that the appellant was in the UK lawfully when she made her application, that is to misunderstand the effect of Section 117B, which sets out the public interest considerations. It is clear that there was no public interest consideration against the appellant as she was in the UK legally when she established her relationship with the sponsor. Such was not a ground of appeal but in any event I find no arguable error in the judge's approach.
16. Similarly, the additional arguments of Mr Nasim before me amounted to nothing more than a disagreement with the judge's findings. Even if these were permitted grounds of appeal it has not been shown that the judge failed to take into account relevant postdecision evidence. Although I accept that there were a number of references to material produced in 2011 onwards this is understandable as it related to a particularly important time in the sponsor's medical history, given that he underwent a kidney transplant in February 2012.
17. The judge made findings open to him and it was clear that in addition to the documentary evidence the judge took into consideration the oral evidence before him which he set out at paragraphs [5] to [8]. It is evident that the judge properly considered the information before him, including evidence which post-dated the decision, and reached findings that were open to him. The appellant's grounds amount to no more than a disagreement with those findings.
Notice of Decision
18. The appeal is dismissed. The determination of First-tier Tribunal Judge Jacobs-Jones did not involve the making of an error of law and shall stand.

No anonymity direction is made.

Signed Dated: 13 June 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

I make no fee award.

Signed Dated: 13 June 2016

Deputy Upper Tribunal Judge Hutchinson