Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24343/2015

THE IMMIGRATION ACTS

Heard at: Liverpool
Decision Promulgated
On: 4th April 2017
On: 10th April 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant
And

Muhammad Kashif Ijaz
(no anonymity direction made)
Respondent

For the Appellant: Mr McVeety, Senior Home Office Presenting Officer
For the Respondent: Mr Atuegbe, R & A Solicitors

DECISION AND REASONS

1. The Respondent (MI) is a national of Pakistan born in 1983. On the 3rd August 2016 the First-tier Tribunal (Judge O.R Williams) allowed his human rights appeal. The Secretary of State for the Home Department now has permission to appeal against that decision1.

The Decision of the First-tier Tribunal

2. The case before Judge Williams was that IR could not be returned to Pakistan because it would be a disproportionate interference with his right to private and family life as protected by Article 8 ECHR. He had come to the United Kingdom as a student in March 2013 but by July of that year had met and embarked on a relationship with another Pakistani man, S. They started living together in November 2013 and entered into their civil partnership on the 29th October 2014. MI asserted a claim under Appendix FM of the Immigration Rules.

3. The determination sets out the matters in issue at paragraph 3. The Secretary of State had refused the application with reference to R-LTRP 1.1 (d). This was because the applicant had not demonstrated that he met the eligibility requirements in respect of minimum income, and could not, in the alternative, show that EX.1 was engaged. This required the applicant to show that there were “insurmountable obstacles to family life with that partner continuing outside the UK”. The determination records, at paragraph 10, a concession by the Presenting Officer that the eligibility requirements were met in respect of the relationship. The Secretary of State had, in her refusal letter, raised an issue as to whether the civil partnership was valid, but this was withdrawn.

4. Judge Williams accepted the analysis in the refusal letter that the couple’s household income did not meet the minimum income threshold. S might be employed as a chef, earning approximately £1300 per month, but anomalies and omissions in the specified evidence meant that the burden could not be discharged. The appeal therefore turned, at least as far as the rules were concerned, on EX.1.

5. The Tribunal found as fact that there would be insurmountable obstacles to family life continuing in Pakistan. The Country of Origin Information Report for 2015 stated that same-sex sexual acts are illegal in Pakistan. The penal code prescribes punishments up to life imprisonment for the offence of “carnal intercourse against the order of nature”. In practice prosecutions are rarely brought, but the penal code is exploited by police officers who use it to harass and extort money from homosexuals. It was MI’s evidence that he had concealed his sexuality from his family for fear of persecution and the Tribunal accepted that to be the case, given the country background evidence at 2.3.4 of the COIR that “lesbian gay and bisexual (LGB) persons in Pakistan can be subject to societal discrimination as well as harassment and violence – most commonly within the family – and depending on the facts of the case, are unlikely to be able to seek effective protection from the authorities”. Judge Williams directed himself to the guidance in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 and concluded that it would be no answer to the United Kingdom’s obligations to expect this couple to lie or internally relocate in order to avoid the risk of persecution. As to the possibility that MI could go back to Pakistan alone and make an application for entry clearance, Judge Williams did not consider that to be an option. There would likely be a lengthy separation and when MI was in Pakistan he would be running the risk of discovery by his family or others. The appeal was therefore allowed with reference to EX.1 and Appendix FM. Adopting the same reasons the determination very briefly records that the appeal would also be allowed with reference to paragraph 276ADE(1). In respect of Article 8 ‘outside of the rules’ the Tribunal weighs in the public interest as expressed in s117B of the Nationality, Immigration and Asylum Act 2002, and on the particular facts concludes that removal would be disproportionate.

The Secretary of State’s Appeal

6. The grounds are that the First-tier Tribunal:

a) Took irrelevant matters into account in mentioning caselaw related to family visits, and to making findings on the minimum income requirement, which is not necessary in a case involving EX.1;

b) Failing to give adequate reasons. This challenge relates to two aspects of the evidence. First, it is said that the Tribunal has failed to resolve how MI was able to integrate into Pakistani society before he arrived in the UK. Since he was presumably gay then, the Tribunal has not considered how he managed to live. Second, it is submitted that the Tribunal has “glossed over” discrepancies in the evidence that “go to the core of the relationship”;

c) Failing to have regard to the public interest/ wrongly finding that MI is financially independent, and that such independence is of “partial” assistance to him

Findings and Reasons

7. These grounds are entirely misconceived and I have no hesitation in dismissing this appeal.

Ground (i)

8. The fact that the Tribunal directed itself to consider a wide body of caselaw concerning the application of Article 8 cannot possibly found a challenge to this decision. It is quite clear from the determination that the Tribunal treated this as an application under Appendix FM. There is nothing to suggest that it believed MI to be a visitor.

9. The finding that the minimum income threshold could not be met was a crucial part of this decision. The Tribunal was quite right to take a methodical approach to the rules. Had the threshold been met, the Tribunal would not have needed to address EX.1 at all.

Ground (ii)

10. The officer who has drafted these grounds has wholly failed to appreciate what the question before the Tribunal was. Under EX.1 the Tribunal had to consider whether there were insurmountable obstacles to this family life continuing in Pakistan. Contrary to the suggestion in the grounds it was not primarily concerned with whether MI could bear to return to Pakistan as a single young man concealing his homosexuality. It was concerned with whether he and his civil partner would be able to found a life together in Pakistan. Since the country background evidence indicated that they would face a risk of persecution from family members, society and the state, it was hardly surprising that the Tribunal found the test to be met. Two men living in a relationship akin to marriage is not something considered normal, reasonable or lawful in that country. The author of the grounds complains that the country background evidence was “plainly insufficient” for the Tribunal to have reached the conclusion that it did. That is a strange submission given that the Secretary of State for the Home Department has offered no evidence to the contrary, and the information relied upon by the Tribunal was in fact that produced by the Home Office.

11. The grounds go on to assert that the Tribunal failed to resolve discrepancies in the evidence about the relationship. This ground is unarguable given that a) the only issue taken in the refusal letter was whether S was free to marry and b) the HOPO on the day expressly conceded that the eligibility (relationship) requirements were met. Appeals to this chamber are not to be treated as a vehicle for opening entirely new issues.

Ground (iii)

12. The residual challenge is to the findings on Article 8 ‘outside of the rules’. Since the appeal was allowed with reference to Appendix FM, and I have upheld that decision, I can here be brief. The First-tier Tribunal expressly directed itself to consider the public interest factors set out at s117B(1)-(5). In considering the question of financial self-sufficiency the Tribunal was plainly entitled, indeed obliged, to consider the evidence before it of money going through the couple’s accounts. The fact that the MI might receive some support from his partner is said in the grounds to be evidence that he was not self-sufficient. Applying the principles in Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803 that might technically be correct, but that finding added very little to the overall conclusion: weighed against what were in effect findings of real risk, it takes the Secretary of State’s case nowhere.

Decisions

13. The determination of the First-tier Tribunal does not contain an error of law such that it should be set aside.

14. There is an order for anonymity.

Upper Tribunal Judge Bruce
4th April 2017