Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24873/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 19th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

mr desmond anthony manderson
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr R Layne of Counsel
For the Respondent: Mr I Jarvis, a Home Office Presenting Officer

DECISION AND REASONS

Introduction

1. The appellant before the Upper Tribunal (UT) was the respondent below. However, I will continue to refer to the parties by their designations before the First-tier Tribunal (FtT).

2. The respondent appeals to the UT with permission from FtT Judge Baker (Judge Baker) who considered that it was arguable that the appellant’s partner (Ms Pryce) could go and live with the appellant in Jamaica the country of his nationality.

3. Standard directions were sent out on 13 December 2016 stating that the UT would not consider any evidence which was not before the FtT unless it received an application pursuant to Rule 15(2A) setting the basis for any application to adduce new evidence. No such application has been made here.

Background

4. The appellant entered the UK on a visit visa on 26 April 2002. He made subsequent applications as student by which means he was able to extend his lawful presence in the UK until 30 September 2006. He subsequently applied for leave to remain on the basis that his protected human rights would be infringed if he were returned to Jamaica, following the rejection of an application to remain on the basis of his marriage to Hazel May Pryce (DOB 24. 02. 64). This resulted in a refusal of the application for leave to remain on human rights grounds on 25 October 2011 and an appeal before Immigration Judge Devittie (Judge Devittie) who decided that the appellant had not formed a relationship akin to marriage or civil partnership with Ms Pryce and he did not therefore qualify under Appendix FM. He dismissed the appeal under the Immigration Rules and on human rights grounds in a decision promulgated on 9 September 2014. However, it seems that on 8 December 2014 the appellant applied for further leave to remain on human rights grounds. This was on the basis he had formed a family and/or private life in the UK with Ms Pryce, a British citizen living in the UK.

5. A fresh decision was made on 23 June 2015 to dismiss his further application for leave to remain in the UK, this time, on the basis that the requirements of Appendix FM of the Immigration Rules were not met. The right to respect for private and family life under article 8 (article 8) of the European Convention on human rights (ECHR) was also raised. This application was considered by the respondent but rejected. The respondent decided that there were no exceptional circumstances justifying allowing the appellant to remain in the UK outside the Immigration Rules. The appeal against the decision to refuse to allow the appellant to remain in the UK came before Immigration Judge Malone (the Immigration Judge) at Taylor House on 23 June 2016. In his decision (promulgated on 26 July 2016) the Immigration Judge allowed the appeal on the basis that he found that Ms Pryce would not be able to continue her family life with the appellant in Jamaica as this would entail “very serious hardship”. He therefore decided that the appellant qualified under Appendix FM and allowed the appeal under the Immigration Rules.

6. At the hearing before me in the UT submissions were made by both representatives. Mr Jarvis pointed out that, somewhat unfortunately, the respondent had not disputed the relationship between the appellant and Ms Pryce. He referred me to paragraph 10 of the original decision of Judge Devittie, who did not accept the genuineness of the relationship between the appellant and Ms Pryce. He acknowledged that it was most unfortunate that the respondent had subsequently changed her position, which had been to accept that the relationship was subsisting and genuine. However, he submitted that in the light of the decision of the Upper Tribunal in the leading case of Devaseelan [2008] UKIAT 00782 significant weight attached the tribunal’s earlier findings. In Devaseelan the IAC pointed out that the correct approach, where a second appeal was heard by a different judge, was that the second judge should consider the reasoning of the first judge. In that case the IAC considered that the first judge’s decision should always be the starting point and it would be unfair to ignore it altogether. Facts happening since the first decision can always be taken into account by the second decision-maker. However, the IAT in Devaseelan described the first judge’s decision as being “the authoritative assessment of the appellant’s status at the time it was made”.

7. Mr Jarvis’s second point was that even if the findings of fact of the Immigration Judge were sound there were no insurmountable obstacles here to Ms Pryce going to Jamaica to continue her family life with the appellant there. Thus, the test in Appendix FM was not satisfied in this case.

8. Mr Jarvis took me to the leading case of Agyarko [2015] EWCA Civ 440. That decision has since been upheld by the Supreme Court on 22nd of February 2017 ([2017] UKSC 11). He took me to paragraphs 21-25 of that decision where the Court of Appeal described the “insurmountable obstacles” test as a:

“high hurdle to overcome for an applicant for leave to remain under the Rules. The test is significantly more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the United Kingdom”.

9. Further the Court of Appeal said that even though in that case Mrs Agyarko’s father was a British citizen who had lived all his life in the UK and would find it difficult or be reluctant to leave the UK this did not mean that there were insurmountable obstacles to family life continuing abroad. Indeed, the court concluded in that case that the alleged obstacles in that case “could not constitute” insurmountable obstacles of the type described by the Immigration Rules.

10. Mr Jarvis then took me to the alleged obstacles in this case which are set out at paragraph 48 of the decision. There, the Immigration Judge states that Ms Pryce would “choose” to remain in the UK rather than continuing her relationship with her partner, the appellant in Jamaica. She would not wish to give up “everything she loves”. Furthermore, the Immigration Judge thought that her removal to Jamaica would “entail very serious hardship” (paragraph 49). She would have the “hideous” emotional task of choosing between the appellant and “everyone else in her life”.

11. Mr Jarvis submitted that the alleged insurmountable obstacles were no more than a description of Ms Pryce’s heart-felt preference for remaining in the UK. This was not enough to overcome the insurmountable obstacles test.

12. Mr Layne, on the hand, considered that the decision of Judge Devittie had been in a different context and in any event, was more than two years ago. The issue now before the tribunal is one of whether there are insurmountable obstacles. It was submitted that Judge Devittie had regard to the reasons for refusal at that time (in the context of which I was referred to paragraph 4 of his decision). I was invited to decide the appeal in a “sensible and practical way” (quoting paragraph 23 of the Court of Appeal’s decision in Agyarko). It was submitted that Ms Pryce was a lady in her mid to late 50s who had never lived in Jamaica and would suffer sufficient obstacles to her settlement there for these to be insurmountable.

13. Mr Jarvis said by way of reply that although it was difficult to go back on the reasons for refusal in this case, the burden of showing a genuine and durable relationship fell on the appellant. It was inappropriate for the Immigration Judge, at paragraph 48 of his decision, to focus, to the degree that he did, on Ms Pryce’s position. The question was whether the threshold set by the Immigration Rules was met by the appellant in the light of the findings of fact and the case law referred to.

14. At the end of the hearing I reserved my decision as to whether or not there was a material error of law and if there was as to the correct method of ultimate disposal.

Discussion

15. The appellant and Ms Pryce have been in a relationship since 2003 or 2004 and have subsequently been married. Their marriage certificate was approved by the respondent in 2006. At the hearing before the U T Mr Jarvis, on behalf of the respondent, sought to go behind the concession made by Ms Martin, his predecessor at the hearing before the FTT, to argue that the relationship was not a genuine and subsisting one. He said that this had been the position when the appeal had been decided by Judge Devittie. Not only was the FTT concerned to strike a balance between interference with the appellant’s protected private and family life and respondent’s duty to enforce effective immigration controls, but also there was a larger family unit to consider. This wider family unit included Ms Pryce’s adult children, Fabian, Barry and Shane, as well as her parents. The appellant himself has a brother in the UK and a brother in Jamaica.

16. This is a difficult case as these cases often are. The Immigration Judge said (at paragraphs 47 – 48 of his decision) that he had reached his decision “not without a degree of hesitation". However, I would only interfere with his decision if it is clear upon proper analysis that it was not a decision reasonably open to him on the law as it stood at the date of the hearing (23 June 2016).

17. The hearing the Supreme Court (in Agyarco) has further clarified the correct approach to take this type of case. I derive the following principles from that and other more recent cases:

(1) The question for the FTT was whether a fair balance has been struck between the interests of the appellant and his wider family to enjoy the private and family life that he had established in the UK and the interests of the state in upholding its policy of ensuring effective but fair immigration control;

(2) The “insurmountable obstacles" test did not mean that it had to be literally impossible for the appellant to return to Jamaica. The term “insurmountable obstacles” was to be interpreted in a practical and realistic way;

(3) The Immigration Rules represented the respondent’s stated policy, endorsed by Parliament, and fell within the margin of appreciation of national authorities. It therefore followed those rules were designed to be compatible with article 8 ECHR and leave to remain would not normally be granted where the applicant or his partner were in breach of the Immigration Rules;

(4) The respondent had deliberately set the bar quite high by using the expression “insurmountable obstacles”. The circumstances where an applicant will be successful despite not fulfilling the requirements of the rules must be “exceptional” although that term must be applied flexibly to the facts of each case;

(5) A relevant factor in assessing the proportionality of the removal of migrants from a state which has signed up to the ECHR is whether migrants in question embarked on or persisted in family life in the knowledge that they are liable to be removed. Those who embark on a private life in such circumstances are subject to sections 117A – D of the Nationality, Immigration and Asylum Act 2002. Section 117B of that Act provides that “Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious”. However, the expectation that the person is to return to his home country cannot be ignored in other cases and there are certain public interest considerations which should be taken in to account in all cases.

18. Here, the Immigration Judge purported to allow the appeal under article 8 as contained in appendix FM of the Immigration Rules. However, appendix FM of the Immigration Rules requires the respondent to be satisfied that there are “insurmountable obstacles” to the relationship continuing abroad, by which is meant “very significant difficulties". The appellant must therefore show that there would be very significant difficulties in Ms Pryce and him continuing their family life in Jamaica. It is not clear that the difficulties the Immigration Judge found in the way of Ms Pryce living in Jamaica were capable of being “insurmountable obstacles”. Many families cope with the fact that some members are in different countries, indeed, it is a feature of modern life where travel is more widespread and family separation commonplace. Approaching the case in a practical and realistic way, in my view, required the Immigration Judge to look carefully at the practical considerations with regards to resettlement of the appellant and his partner and balancing those practical considerations against the need for the respondent to enforce effective immigration control. Less weight normally attaches to purely emotional factors, particularly relating to the country in which a person wishes to live.

19. It is not possible at this stage to go behind the concession made by the respondent in her refusal to grant leave to remain (in paragraph 18 of her letter dated 23 June 2015) that the appellant had established “a genuine and subsisting relationship" with Ms Pryce, a British citizen. The Immigration Judge reached the same view in the light of a concession made by the respondent’s representative Ms Martin. However, I note that there were doubts before Judge Devittie as to the duration of the relationship. That issue was not fully explored before the Immigration Judge in this case. Other facts which were potentially relevant the outcome of the appeal, as to which there is no serious dispute, include the following:

(1) Ms Pryce has never lived in Jamaica and did not want to get to do so, although she had visited that country on a couple of occasions;

(2) The appellant had formed a close relationship with her three adult sons and they have become “one family unit”;

(3) Ms Pryce had elderly parents who were “not yet frail", although the Immigration Judge does not appear to have made any findings over the extent to which Ms Pryce provided them with practical assistance.

Conclusions

20. It has been said on many occasions that a person may not choose which country he wishes to form his private or family life in. It is incumbent upon the respondent to enforce proper immigration controls. In this case those controls are set out clearly in the Immigration Rules. Those rules specify that there must be “insurmountable obstacles” to family life continuing abroad before leave to remain will be granted.

21. The Immigration Judge gave a number of reasons why family life could not continue in Jamaica. However, they do not, in my view, constitute insurmountable obstacles. :

(1) The conclusion that the appellant would probably “not be able" to see Ms Pryce’s sons, with whom the appellant had formed a close relationship, does not appear justified. It would be relatively easy for them to visit one another and stay in contact via other means;

(2) Although Ms Pryce has no relatives Jamaica and she told the FTT she did not wish to live in that country, the appellant does have close relatives there, namely a brother and a nephew. The appellant asserted that he had no contact with his brother and nephew but it is by no means clear that this would necessarily remain the case if he were returned to Jamaica, if indeed this evidence is correct;

(3) I do not consider that negative associations the appellant has with the part of Jamaica area from which he comes (Freetown) should weigh in the balance, as the Immigration Judge appears to have found in paragraph 38 of his decision;

(4) The appellant’s alleged difficulties in obtaining employment in Jamaica do not appear to amount to insurmountable obstacles, particularly since he is presently unemployed in the UK and would arguably be in no worse position in Jamaica than he is here.

22. I am also of the view that the Immigration Judge attached excessive weight to the degree of disruption and inconvenience to Ms Pryce. There is inevitably a degree of disruption caused by having to relocate to a foreign country. However, many couples cope, sometimes spending periods apart from one another. She could relocate to Jamaica with her husband and make regular visits back to the UK or she could remain here and make visits to Jamaica. If she decided to adopt the former course, she would be moving to a country which speaks English and which is closely culturally assimilated to the UK.

23. The Immigration Judge was entitled to reach a generous view of the evidence he heard and, subject to the finding in relation to the genuine and subsisting relationship between the appellant and Ms Pryce, Mr Jarvis does not seek to go behind those fact findings. However, the Immigration Judge failed to attach weight to the countervailing factors and, in particular, the need for effective immigration control.

24. It is clear from the decision in Agyarko that the bar for applications for leave to remain under the Immigration Rules has been set at a deliberately high level. Although Ms Pryce has lived in the UK all her life and has only been to Jamaica on a couple of occasions she would be going there as part of a close family unit. This would, of course, involve giving up her employment UK, reducing the degree of contact with her siblings and, potentially, being able to give her father and mother less support that would otherwise be the case. However, she is young enough and had a good enough state of health to achieve this.

25. The obstacles identified by the Immigration Judge are not therefore insurmountable and the decision to the contrary by the Immigration Judge is an error of law. The Immigration Judge failed to approach the issue before him in a practical and realistic way.

26. I have decided that the appellant did not satisfy the requirements of appendix FM of the Immigration Rules, so as to qualify for leave to remain. There were insufficient factors in this case to amount to “insurmountable obstacles”. Alternatively, the case did not qualify for a “freestanding” article 8 assessment because it did not fall within the “exceptional” category, recognised by the Supreme Court in Agyarco. Accordingly, the Immigration Judge would not have been justified in allowing the appeal outside the Immigration Rules.

My Decision

The respondent’s appeal is allowed. I set aside the decision of the First-tier Tribunal. I substitute the decision of this Tribunal which is to dismiss the appeal against the respondent’s decision under the Immigration Rules.

No anonymity direction is made.

Signed Date 11 April 2017

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 11 April 2017

Deputy Upper Tribunal Judge Hanbury