Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24701/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 19 October 2016
On 11 January 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Muhammad Sabeel
(no ANONYMITY DIRECTION)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Patel, Riaz Solicitors
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, Muhammad Sabeel, was born on 8 October 1989 and is a male citizen of Pakistan. By a decision promulgated on 7 September 2016, Upper Tribunal Judge Storey found that the First-tier Tribunal had erred in law such that its decision fell to be set aside. Judge Storey's reasons for making that decision were as follows:
The respondent (hereafter the claimant) is a citizen of Pakistan who had entered the UK in May 2011 as a student on a Tier 4 (General) Student visa which was extended until 30 January 2014. His application for a further extension was refused on 2 May 2015 as were further applications made on family and private life grounds. The appellant (hereafter the SSHD) made a decision on 25 June 2015 to refuse his latest application for leave to remain on private and family life grounds and gave directions for his removal. The SSHD also considered the claimant had used deception contrary to para S-LTR.2.2 of the Rules. The claimant's appeal came before First-tier Tribunal Judge (FtT) Judge Robson who on 4 January 2015 allowed it on human rights grounds and also rejected the SSHD's decision that he had used deception, contrary to para S-LTR.2.2 which states that the application would normally be refused on the grounds of suitability if any of the paragraph S-LTR.2.2-2.4 apply. S-LTR.2.2 states that:
"Whether or not to the applicant's knowledge
(a) false information, representations or documents had been submitted in relation to the application (including false information submitted to any person to obtain a document used in support of the application)."
2. The reason why the SSHD considered that the claimant fell foul of S-LTR.2.2 was that ETS had confirmed that the test the claimant took on 15 May 2012 at Darwin College had involved deception. The reasons why the judge rejected this allegation was essentially because the only evidence submitted in support of it was the generic evidence in the form of witness statements of Peter Millington of 23 June 2015 and Rebecca Collins dated 23 June 2014. It was the claimant's case on appeal that there was evidence that he had taken and passed English language tests before and after the one in May 2012; and that his evidence that he had personally taken the May 2012 test himself and did not indulge in any malpractice should be accepted.
3. In allowing the appeal on Article 8 grounds the judge's analysis was set out in [78] - [81] of his decision as follows:
"78. The evidence before me is that in fact there has been evidence of cohabitation produced and it is supportive of their claim that the relationship has been cemented not only before the Islamic marriage but by the civil marriage at Gretna Green.
79. Furthermore it is a fact that has not been disputed and I find as a fact that a child was born to both parties and the respondent was put on notice at the earliest possible opportunity about the pending birth of the child. I have to take into account the birth of that child who would of course be a British citizen.
80. Given the views of the sponsoring wife and her close ties to the United Kingdom I consider that it would be disproportionate and impractical to consider the separation of this family.
81. Looking at the evidence in its totality I conclude that in fact the claim for leave to remain on the basis of family life has been made out and that the appellant's removal would place the United Kingdom in breach of its obligations under the Human Rights Act."
4. The SSHD's grounds attacked both of the main parts of the judge's decision. First, it was contended that the judge had failed to provide adequate reasons for rejecting the evidence provided by the claimant regarding the taking of his English Language Test in 2012. This evidence, it was emphasised, comprised not just the generic evidence but a spreadsheet identifying the claimant's results as invalid and indicating he had used a proxy or allowed himself to be impersonated. Second, the FtJ had failed to consider the claimant's Article 8 position under the Immigration Rules at para 276ADE and had also failed to apply the considerations set out in s.117B of the Nationality, Immigration and Asylum Act 2002.
5. I am grateful for the succinct submissions I heard from Mrs Pettersen and Mr Patel. As regards the SSHD's first ground, I do not consider it has been made out. The judge was clearly aware that in addition to the generic evidence there was a spreadsheet identifying his specific test taken in May 2012 as invalid. But as recognised by the Upper Tribunal in SM and Qadir (ETS - evidence - burden of proof) [2016] UKUT 229 (IAC) it is within the range of reasonable responses for a judge to consider whether or not the evidence of an individual appellant as to the circumstances under which he or she took the IELTS test with ETS is sufficient to rebut the generic evidence relied on by the SSHD in IELTS-ETS cases. The SSHD does not in terms challenge the judge's findings of fact that the claimant had given a credible account of his history of taking tests apart from the May 2012 test.
7. A further important point overlooked by the SSHD's grounds is that the Immigration Rules under which the claimant was refused - S-LTR.2.2 - is not in mandatory terms but affords a discretion. That was a further reason the judge gave for rejecting this application to the claimant, the judge stating at [77] that:
"The essence of the respondent's objection was based on deception. Whilst a deception will 'normally' result in a refusal, in view of my findings above, I do not perceive this is a case where it is appropriate that the refusal should be treated as normal."
8. However, I am satisfied that the SSHD's second ground is made out. The judge's reasons for allowing the appeal on Article 8 grounds were wholly inadequate. He failed to consider whether the claimant stood to succeed under the substantive Immigration Rules (para 276ADE and EX.1) and not only failed thereby to approach the case (as enjoyed by SS (Congo) [2015] EWCA Civ 387 through the prism of the Rules, but also to consider any public interest considerations weighing in the Article 8 balance. The claimant had ceased to have valid leave as a student at the end of July 2014 and had nevertheless chosen to remain in the UK. Previous applications he had made based on his marriage to a British citizen partner had been rejected and in the decision made against him in June 2015 it had been found that there were no insurmountable obstacles to family life with his partner continuing outside the UK and it was also found that he did not meet the eligibility requirements of paragraph 276ADE(vi). The SSHD also considered that there were no exceptional circumstances warranting a grant of leave outside the Rules, noting inter alia that he had been present in the UK with the full knowledge that he only had limited leave to remain in the UK as a student; had established his relationship with his partner at a time when his immigration status was precarious, and had provided no evidence that it would cause the couple hardship to relocate to Pakistan.
9. Given the detailed nature of the SSHD's refusal decision and the submissions made by the Presenting Officer at the hearing, the judge's failure to give due weight to the public interest and his failure to give more than the most cursory of reasons for allowing the appeal on Article 8 grounds, were manifest and material errors of law. Accordingly his decision is set aside.
10. I agree with Mrs Pettersen and Mr Patel that if I decided (as I have) that the FtT decision was legally erroneous, I was not in a position to re-make the decision at the hearing before me, not least because of the time allocation for my cases. This is not a case, however, when it would be appropriate to remit it to the FtT as the areas of factual dispute are very limited. As a result of my decision the claimant's Article 8 circumstances must now be considered shorn of the original assumption that he used deception (this being an assumption which the SSHD sought to rely on in her Article 8 assessment at para 42 of her refusal decision). She can no longer do so. The respondent has not sought to challenge the judge's findings on the claimant's relationship with his wife. Accordingly the case can be retained in the Upper Tribunal and can largely be decided on the basis of the primary findings of fact made by the judge. Given that the couple have a child and that at the date of hearing the claimant's partner's employment situation was unclear, it is directed that the couple produce witness statements updating their family and private life circumstances and submit these to the UT with copies to the SSHD at least 14 days before the hearing which will be fixed for a date as soon as possible at the hearing centre in Bradford.
11. For the above reasons:
12. The FtT judge materially erred in law and his decision is set aside. Whilst the judge's primary findings of fact are preserved, the case is adjourned to be heard in the Upper Tribunal at a date to be fixed.
No anonymity direction is made."
2. The resumed hearing took place before me following the making of a transfer order on 19 October 2016 at Bradford. I heard evidence from the appellant and also from his wife, Nosheen Akhtar (hereinafter Mrs Akhtar). They adopted their written statements as their evidence-in-chief. Mrs Akhtar is working for an employment agency (offering work as a teaching assistant). She is pregnant with her second child by the appellant. The baby is due to be born on 8 April 2017. The couple's first child was born on 4 September 2015. Mr Diwnycz told me that the Secretary of State took no issue with the claimed relationship between Mrs Akhtar and the appellant and the parentage of the child who is now a little over a year old.
3. The burden of proof in the appeal is on the appellant and the standard of proof is the balance of probabilities. Mr Diwnycz told me that he considered both witnesses to have given credible evidence.
4. It is important for the Tribunal to consider Article 8 through the lens (so to speak) of the relevant Immigration Rules (SS Congo [2015] EWCA Civ 387). I have considered paragraph 276ADE of HC 395:
'Requirements to be met by an applicant for leave to remain on the grounds of private life
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(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.
276ADE (2). Sub-paragraph (1)(vi) does not apply, and may not be relied upon, in circumstances in which it is proposed to return a person to a third country pursuant to Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.'
In his evidence, the appellant states that his parents in Pakistan did not approve of his marriage to Mrs Akhtar and that this constitutes an insurmountable obstacle to his returning to his country of nationality. I disagree. The particulars provided by the appellant are very scanty. He says no more in his statement [5] than that "my family in Pakistan are not happy with my marriage. They have made it clear they would not accept me". There was no suggestion that the family would offer violence to the appellant or Mrs Akhtar in Pakistan. The appellant is an adult and a father and husband; I see no reason why he should not be able to support the appellant and his family without additional support of his own family members in Pakistan. I do not consider there are any very significant obstacles to the appellant's integration into the country of his nationality. It follows that the appellant cannot satisfy paragraph 276ADE given that he cannot meet the requirements of subparagraph (vi) and is over the age of 18 years and has not lived continuously in this country for at least twenty years.
5. The Secretary of State accepts [refusal letter, 23] that the appellant has a genuine relationship with Mrs Akhtar and that she is a British citizen. However, the Secretary of State considers that the application of Appendix FM EX1 cannot be met by the appellant. The respondent asserts that there are no insurmountable obstacles that would prevent him returning to Pakistan with his family.
6. As Judge Storey noted in his error of law decision, there is no question of deception arising in the present case either as a means of excluding the appellant under the provisions of HC 395 or as a factor in any Article 8 proportionality assessment. However, the fact remains that the appellant entered his relationship with his partner at a time when his immigration status was precarious. Having said that, Mrs Akhtar had now given birth to a child since the date of the last refusal letter and, in consequence, Section 117B(6) of the 2002 Act (as amended) is relevant:
'(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.'
7. It is apparent that the crux of this appeal lies in whether it would be reasonable to expect the child of this couple to leave the United Kingdom and to live in Pakistan. That is certainly the test which must be considered in the application of Section 117B(6) and the reasonableness or otherwise of the family including Mrs Akhtar leaving the country is plainly the central issue in the proportionality assessment under Article 8 ECHR.
8. I remind myself that I am considering this appeal as at the date of the hearing before the Upper Tribunal. As at that date, Mrs Akhtar is pregnant with the couple's second child. She also has the not inconsiderable responsibilities of looking after a young baby who is now just over a year old. In addition to that, she provides financial stability for the family by working as a teaching assistant. At some point, she will have to cease her work in order to prepare for her confinement. The child which she is carrying will, like her young son, be a British citizen. I have, as I have explained above, attached little weight to the fact that the appellant's family may not approve of the relationship but the fact remains that I must consider whether it is reasonable for the appellant's young baby to leave the country of its nationality at this particular time to live in Pakistan. Given the particular circumstances, there is a strong argument for finding that it would not be reasonable for the child to leave at the present time. Set against that is the public interest concerned with the proper regulation of immigration. Part of that public interest is recognised in the fact that a relationship formed with a qualifying partner which was established at a time when the person was in the United Kingdom unlawfully should be given little weight (Section 117B(4)).
9. So far as the appellant is concerned, I am required to consider whether there are insurmountable obstacles such as may prevent her return to Pakistan and whether the effect that the separation of the family would produce unduly harsh results for any members of it. Ultimately, and having regard to the nature of the test, I find that at the present time it would not be reasonable for the child of the couple, who is barely a year old and whose welfare will depend to some extent on the maintenance of a stable home and family life, to travel to live in Pakistan in circumstances where the finances of the family would be uncertain and whilst his mother (the family breadwinner in the United Kingdom) is having to deal with the care of a young child at the time of her second pregnancy. Given that it is my judgment that it would not be reasonable to expect the family to relocate at the present time, I find that the appeal should be allowed outside the Immigration Rules and under Article 8 ECHR. I have taken proper account of the public interest concerned with the appellant's removal but ultimately, I find that it would not be reasonable to expect the child to leave the United Kingdom.
Notice of Decision

The previous decision of the First-tier Tribunal having been set aside, this appeal is allowed on human rights grounds (Article 8 ECHR).

No anonymity direction is made.

Signed Date 11 December 2016

Upper Tribunal Judge Clive Lane