Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26349/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 28th September 2016
On 12th October 2016

Before

DEPUTY upper tribunal judge ROBERTS

Between

A.A.
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Iqbal, Solicitor
For the Respondent: Mrs Pettersen, Home Office Presenting Officer

Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal. There has been no application to remove that direction. It is therefore appropriate to continue that direction.

DECISION AND REASONS
1. The Appellant, a citizen of Pakistan (born 1st April 1987), appeals with permission against the decision of a First-tier Tribunal (Judge Holmes) dismissing his appeal against the Respondent's refusal to grant him leave to remain in the UK on account of his Article 8 ECHR rights as the spouse of a British citizen.
2. The Appellant's immigration history is as follows. The Appellant first entered the UK on 24th May 2010 as a Tier 4 student with a valid grant of entry clearance until 20th August 2011. He became an overstayer upon the expiry of that leave. He then made an application to regularise his status on 26th January 2012 which was ultimately successful and a grant of leave to remain in the capacity of a Tier 4 student was later made, expiring on 3rd July 2014.
3. The Appellant and the Sponsor married on 23rd April 2014 [Appellant's bundle page 6].
4. The Appellant applied to vary his leave as a spouse on 1st July 2014, but this application was refused for a variety of reasons, and a Section 47 removal decision was made in relation to him, on 15th January 2015. His appeal against these decisions was dismissed on appeal by First-tier Tribunal Judge Saffer under the Immigration Rules, and also on Article 8 grounds. His appeal rights were exhausted in relation to these decisions on 18th May 2015.
5. Rather than depart the UK, and make an entry clearance application from Pakistan as a spouse, as Judge Saffer had clearly suggested he do in the course of considering the proportionality of the removal decision, the Appellant chose to remain in the UK. On 4th June 2015 he applied on human rights grounds for a grant of leave to remain as a spouse. This application was refused on 8th July 2015 because the Respondent was of the view the Appellant had failed to show that his article 8 right to family/private life would be breached as a result of the decision. The refusal decision contained a Section 120 notice. The Appellant appealed to the FtT. The FtT, the appeal was dismissed.
Onward appeal
6. The Appellant sought permission to appeal. The grounds seeking permission claimed that the FtT had materially erred in this way:
The sole issue of refusal by the Respondent was under the provisions of the Immigration Rules under Appendix FM E-LTRP4.1. The grounds assert that the FtT correctly stated that the Appellant under the transitional provision arrangements met the English language requirement, but nevertheless applying the current jurisprudence brought in by the changes implemented by the 2014 Act, found that the Respondent's decision did not amount to a disproportionate interference with the Appellant's Article 8 rights and accordingly dismissed the appeal. It is claimed that this was an error because it was contrary to natural justice.
7. Permission was granted and the relevant parts of the grant of permission read as follows:
"1. Permission is sought to appeal, in time, the decision of First-tier Tribunal Judge J M Holmes, dated 29 March 2016, dismissing the appellant's appeal against the respondent's decision to refuse to grant him leave to remain in the United Kingdom on human rights grounds, with reference to the appellant's relationship with his British partner. With reference to the 'partner route' under Appendix FM, the respondent appears to have refused the appellant's application solely with reference to the English language requirement (E-LTRP.4.1).
2. The grounds argue that, the Judge having concluded that the appellant's submitted English language test certificate met the requirements of the (unspecified) transitional provisions of the Rules, he then fell into error in concluding that the respondent's decision was a proportionate one, the sole valid ground of appeal being that the decision was unlawful under the HRA 1998. Bearing in mind that the relevant Article 8 Rules reflect the proportionality balance, the grounds have arguable merit."
Thus the matter comes before me to determine initially whether the decision of the First-tier Tribunal contains such error of law requiring it to be set aside and re-made.
Error of Law Hearing
8. Before me Mr Iqbal appeared for the Appellant; Mrs Pettersen for the Respondent. Mr Iqbal's submissions essentially amounted to a reliance on the grounds seeking permission. He submitted that the sole issue of refusal by the Respondent was that the Appellant did not provide evidence to establish that he met the English language requirement. The judge in his proportionality assessment, should have recognised that factor which resulted in the Respondent disproportionately concluding that the Appellant did not meet the English language requirement. In fact it would seem he did and this of itself was sufficiently compelling reason to conclude that under the fifth limb of the Razgar test the Respondent's decision was a disproportionate interference with the Appellant's family life.
9. Ms Pettersen responded by serving a Rule 24 response. She kept to the lines of that response. She submitted that Mr Iqbal's submissions amounted to no more than a disagreement with Judge Holmes' findings. She emphasised that what was before the judge was an Article 8 consideration only. The judge had focused on that aspect as he was bound to do. She referred to [24] and submitted that the judge had correctly set out what was before him. She referred to that part of [24] where the judge had expressly set out that a claimant may succeed in showing that their application should have been allowed as meeting the requirements of the Immigration Rules at the date of decision, and yet fail to succeed in an Article 8 appeal, because they are unable to show that the decision under appeal was disproportionate one under Article 8. That was the task which the judge had before him. He had clearly taken into account the factors he was obliged to take into account and had set out fully his findings on the evidence. He gave full reasons why he found the Respondent's decision to be a proportionate one under Article 8 ECHR. The decision was a properly reasoned one and was one open to the judge on the available evidence.
Consideration and Discussion
10. My first task is to decide whether or not, the FtT can be said to have erred in law requiring the decision to be set aside and re-made.
11. I am conscious that what was before the judge was an Article 8 ECHR appeal only. The Appellant through his representative accepted at the hearing before the FtT that following the changes implemented by the 2014 Act, the only route available to the Appellant was an appeal within the context of Article 8.
12. In [22] to [24] the judge takes great care to point out that what was before him was an Article 8 claim only. He points out at [24] that it is plain that an appeal with the new limited Grounds of Appeal cannot simply be argued and determined on the basis that the decision was not in accordance with the law, under the guise of cloak of a conclusion that the decision under appeal is disproportionate within the context of an Article 8 appeal.
13. I find force therefore in Ms Pettersen's submissions that the judge's decision is a carefully crafted and thorough one. He has focused, as he was bound to do so, on the issue before him; which was whether the Respondent's decision to refuse the Appellant's leave to remain was a disproportionate one.
14. The difficulty for the Appellant as the judge pointed out was that in any Article 8 consideration he was bound to give effect to the changes implemented by the 2014 Act.
15. Furthermore, the judge acknowledged at [23] that it appeared that transitional arrangements existed which meant that the English language test results of the type held by the Appellant were to be accepted by the Respondent as evidence that the language requirements were met. However, he gave full consideration to that in [32].
16. As this was an Article 8 application and appeal only, the judge was obliged, as he said, to look at matters in the round through the prism of the Section 117 stipulations set out in the Rules.
17. Having done so he has arrived at conclusions open to him on the evidence. I find that the Appellant's application amounts to no more than a disagreement with the judge's findings. the judge's decision stands. This appeal is dismissed.

Notice of Decision

Appeal dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed C E Roberts Date 12 October 2016

Deputy Upper Tribunal Judge Roberts

TO THE RESPONDENT
FEE AWARD

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

Signed C E Roberts Date 12 October 2016

Deputy Upper Tribunal Judge Roberts