Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24234/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 October 2016
On 2 November 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Arjun Bohara
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Ms Brocklesby-Weller, Home Office Presenting Officer
For the Respondent: Mr B Halligan of Counsel, Malik & Malik Solicitors

DECISION AND REASONS
(Delivered orally on 6 October 2016)
Introduction
1. The appellant before the Upper Tribunal is the Secretary of State for the Home Department. Nevertheless, for the sake of convenience I will continue herein to refer to Mr Bahara as the appellant.
2. The appellant is a citizen of Nepal, born 20 May 1982. On 24 February 2014 he applied for indefinite leave to remain as the spouse of a person present and settled in the United Kingdom (pursuant to paragraph 287 of the Immigration Rules). The Secretary of State refused this application by way of a decision dated 16 June 2015, ostensibly on the basis that she did not believe the appellant to be in a genuine and subsisting relationship with his spouse, Ms Shahi.
First-tier Tribunal's decision
3. The appellant appealed the aforementioned decision to the First-tier Tribunal. The appeal was heard by First-tier Tribunal Judge Green in Birmingham on 22 March 2016 and allowed "on human rights grounds" in a decision promulgated on 8 April 2016.
4. Within the First-tier Tribunal's decision there is careful recitation of the reasons given by the Secretary of State for refusing the application. There then follows a lengthy description of the evidence - including the oral evidence (paragraphs 6 to 10), which is immediately followed by a record of the submissions made by the respective representatives.
5. The reasons given for allowing the appeal are found within paragraphs 15 to 23 of the decision, the critical finding being that appellant and his wife are in a genuine and subsisting relationship.
Decision and Discussion
6. The Secretary of State appeals to the Upper Tribunal with the permission of Designated Judge Manuell granted on 1 September 2016.
7. Turning to the grounds of challenge, it is first to be observed that for the most part they demonstrate a misunderstanding by their author of the grounds of appeal available to the appellant before the First-tier Tribunal. The appellant was entitled, as identified in the Secretary of State's decision letter, to deploy only one ground before the First-tier Tribunal i.e. that the Secretary of State's decision was unlawful under Section 6 of the Human Rights Act 1998.
8. Once the aforementioned misconception is stripped away from the Secretary of State's grounds they resolve themselves into the following two submissions (as was accepted to be the case by Ms Brocklesby-Weller):
(i) The First-tier Tribunal failed to take into account material matters when concluding that the appellant's marriage to be genuine and subsisting.
(ii) The First-tier Tribunal's conclusion that the marriage is genuine and subsisting is irrational.
9. I take these in turn. In support of the first ground, Ms Brocklesby-Weller drew attention to passages in the Secretary of State's refusal letter which identify, amongst other things, numerous inconsistencies as between the appellant and his wife during their respective marriage interviews. She asserted, in particular, that the First-tier Tribunal failed to take account of the inconsistent answers given by the couple regarding their 'first date'.
10. I conclude that this ground is not made out. Reading the First-tier Tribunal's decision as a whole it cannot be said, in my view, that the Tribunal failed to take into account any of the matters identified in the Secretary of State's decision letter. Significantly, as already identified above, the First-tier Tribunal carefully recited the reasons given in this letter refusing the appellant's application (see paragraph 1 thereof). In particular, I observe that half way through paragraph 1(i) of its decision the First-tier Tribunal makes reference to the fact that the couple gave contradictory answers during their marriage interviews, with further reference to one of those contradictions being in relation to the circumstances of their 'first date'.
11. It is trite that the First-tier Tribunal do not have to deal with each and every point raised before it. In the instant case the First-tier Tribunal, having considered all of the evidence, was entitled to take an overarching view of that evidence. If one reads paragraph 16 of its decision it is perfectly clear that the First-tier Tribunal was alive to the discrepancies between the answers given in the respective marriage interviews; indeed, it rejected the appellant's explanation for those discrepancies in terms in paragraph 16.
12. The First-tier Tribunal proceeded thereafter on the basis that there were discrepancies between the marriage interviews and this conclusion formed a component part of its consideration of the evidence as a whole. In my conclusion the First-tier Tribunal was required to do no more than it did and I find, as a consequence, that the first ground is not made out.
13. Moving on to the second ground, once again in my conclusion this has not been established.
14. The weight to be attached to the discrepant answers given during the marriage interviews was a matter for the First-tier Tribunal. The First-tier Tribunal clearly took into account all of the evidence and looked at that evidence in the round. It gave each piece of evidence the weight it saw fit. There is nothing in paragraph 16 of the decision, or any other paragraph thereafter, that leads me to conclude that the finding that the appellant's marriage is genuine and subsisting was one which was not open to the First-tier Tribunal on the available evidence. That is not say that it would not have been open to another judge to come to a different conclusion, but that is not the threshold the Secretary of State must surpass in order to succeed on the second ground.
15. Once it is established that the First-tier Tribunal's conclusion in relation to the Immigration Rules is not flawed, it is a short step thereafter to conclude that on the facts of this particular appeal the Article 8 ground must be allowed.
16. On the First-tier Tribunal's findings there was clearly a family life between the appellant and his wife. There can be no doubt that interference with that family life would be of sufficient gravity so as to engage Article 8. Given that the Secretary of State identifies her view of the public interest through her Immigration Rules, it is difficult for the her to thereafter assert that the public interest is met by removal when the requirements one of those Rules is met. It is certainly the case that the First-tier Tribunal was entitled to find that requiring the appellant to leave the United Kingdom would be disproportionate, and a breach of his Article 8 rights.
17. I, therefore, conclude that there is no error of law in the First-tier Tribunal's decision capable of affecting the outcome of the appeal, and the First-tier Tribunal's decision must remain standing.

Signed:

Upper Tribunal Judge O'Connor