Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26519/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 11 April 2017
On 20 April 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

ADEEL ZAFAR
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Dieu instructed by Chetna & Co Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Pakistan who was born on 15 January 1988. He entered the United Kingdom on 9 April 2011 with entry clearance as a student. His leave was valid until 27 August 2012.
2. On 24 July 2012, he married a British citizen, Angharad Rangles. On 24 August 2013, the appellant applied for further leave to remain under Art 8 of the ECHR. On 30 October 2013, the Secretary of State refused that application. The appellant appealed and in a decision promulgated on 4 April 2014 the First-tier Tribunal (Judge Chana) dismissed the appellant’s appeal under the Immigration Rules (HC 395 as amended) and Art 8. The appellant unsuccessfully appealed to the Upper Tribunal and became appeal rights exhausted on 22 September 2014.
3. On 18 September 2014, the appellant made a further application for leave to remain on the basis of his private and family life. That application was refused by the Secretary of State in a decision dated 10 July 2015. The Secretary of State concluded that the appellant could not succeed as the partner of a British Citizen on the basis that there were not “insurmountable obstacles” to them continuing their family life in Pakistan. Further, in relation to the appellant’s private life, he had not been in the UK for twenty years and it was not established that there were “very significant obstacles” to his integration on return to Pakistan where he had lived for 23 years before coming to the UK. Finally, the Secretary of State concluded that there were not sufficiently compelling circumstances to outweigh the public interest so as to warrant a grant of leave outside the Rules under Art 8.
The Appeal to the First-tier Tribunal
4. The appellant appealed to the First-tier Tribunal. In a decision dated 13 August 2016, Judge C J Woolley dismissed the appellant’s appeal.
5. The appellant relied, in particular, upon the fact that his wife was a Christian and of western appearance who would face difficulties in Pakistan and also because her parents (who gave evidence before the judge) had a number of health conditions and were supported by the appellant and his wife. Judge Woolley accepted that the appellant’s wife was a Christian, but on the basis of Judge Chana’s finding in the earlier appeal and in the absence of any significant further evidence, Judge Woolley found that she was “not a practising Christian”. Further, he accepted that the appellant’s father-in-law suffered from high blood pressure and that his mother-in-law suffered from diabetes and had a hip condition. Judge Woolley found that these factors, taken as part of all the circumstances, did not reach the high threshold of establishing that there was “insurmountable obstacles” to the appellant and his wife continuing their family life in Pakistan. The judge also concluded that given the appellant’s circumstances he had not established there were “very significant obstacles” to his integration into Pakistan for the purposes of para 276ADE(1)(vi) of the Rules. Finally, Judge Woolley found that there were no “compelling reasons” to outweigh the public interest and to justify a grant of leave outside the Rules under Article 8.
The Appeal to the Upper Tribunal
6. The appellant sought permission to appeal to the Upper Tribunal. His grounds raised seven numbered points. Mr Dieu, who represented the appellant, placed no reliance on points 1 to 5 which seek to identify a number of misstatements of fact by the judge. Mr Dieu accepted these were not material to the judge’s decision.
7. Points 6 and 7 contend that the judge failed fully to consider the detrimental effect upon the appellant’s family life, in particular the impact upon his in-laws health, if he returned to Pakistan and the impact upon his wife of living in Pakistan as a Christian with “White British heritage”.
8. On 30 November 2016, the First-tier Tribunal (Judge Scott-Baker) granted the appellant permission to appeal.
9. On 12 December 2016, the Secretary of State filed a rule 24 notice seeking to uphold the judge’s decision.
The Submissions
10. Mr Dieu made essentially three submissions.
11. First, he initially contended that the judge had been wrong to find that the appellant’s wife was not a Christian. During the course of his submissions, I pointed out to Mr Dieu that the judge had accepted that the appellant’s wife was a Christian but, on the basis of Judge Chana’s earlier finding and in the absence of new supporting evidence, he had found that she was not a “practising Christian”. Mr Dieu acknowledged that that had been the judge’s finding but, as I understood his submission, continued to rely on point 7 in the grounds that the judge had understated the impact on the appellant’s wife of returning to Pakistan at para 28 by relying upon evidence that “270,000 British nationals visit Pakistan every year and most visits are trouble free” and by failing to take into account that the majority of these visitors are British citizens with Pakistani origins who have family in Pakistan.
12. Secondly, Mr Dieu submitted that the judge had failed adequately to take into account the health condition of the appellant’s in-laws in finding under the Rules (para EX.1 of Appendix FM) that there were not “insurmountable obstacles” to the appellant and his wife carrying on their family life in Pakistan.
13. Thirdly, Mr Dieu submitted that the judge had failed properly to consider the appellant’s claim outside the Rules under Art 8. He submitted that the judge had failed to take into account the health of the in-laws and the impact upon them in finding that there were no “compelling” circumstances sufficient to outweigh the public interest.
14. Mr Mills, on behalf of the Secretary of State submitted first that the judge was entitled to find that the appellant’s wife was a “non-practising Christian”. That had been the finding of Judge Chana in the earlier appeal and in the absence of any evidence to the contrary the judge was entitled to make his finding.
15. Secondly, Mr Mills submitted that the judge had dealt fully with the position of the appellant’s spouse on return to Pakistan. She was not a convert to Christianity. Mr Mills submitted that whilst she might experience discrimination, the Home Office document “Country Information and Guidance Report: Christians and Christian Converts, Pakistan” (February 2015), the judge was fully entitled to find that this did not amount to “insurmountable obstacles”.
16. Thirdly, Mr Mills submitted that the judge had dealt fully at para 27 of his judgment with the health condition of the appellant’s in-laws and had given adequate reasons for his rational conclusion that the impact upon them did not amount to “insurmountable obstacles” to the appellant and his wife living in Pakistan.
17. Finally, Mr Mills submitted that the judge had correctly asked himself whether there were “compelling” reasons or circumstances sufficient to outweigh the public interest and to justify a grant of leave outside the Rules. He accepted that at paras 34-36, the judge had not specifically referred to the health of the appellant’s in-laws. However, the judge had set that out in para 27 of his decision and it was entirely reasonable to conclude that he had those circumstances well in mind when reaching his finding adverse to the appellant at para 36.
Discussion
18. Mr Dieu’s first two submissions challenged the judge’s approach to the evidence dealing with the religion of the appellant’s wife and the impact upon his in-laws if he were to return to Pakistan with her. That issue arose initially in the context of the judge’s consideration of whether the appellant could satisfy the ‘partner’ rule in Appendix FM. It was common ground before me that the appellant had to meet the requirement in R-LTRP.1.1(d) which required him to satisfy para EX.1. That provision provides, so far as relevant that:
“This paragraph applies if
…. (b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen … and there are insurmountable obstacles to family life with that partner continuing outside the UK.”
19. Paragraph EX.2. provides:
“For the purposes of paragraph EX.1.(b) ‘insurmountable obstacles’ means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”
20. In R (Agyarko and another) v SSHD [2017] UKSC 11 the Supreme Court accepted that the phrase “insurmountable obstacles” was, consistently with the Strasbourg Court’s jurisprudence: “to be understood in a practical and realistic sense, rather than as referring solely to obstacles which make it literally impossible for the family to live together in the country of origin of the non-national concerned”. (at [43]).
21. The Supreme Court acknowledged that it imposed a “stringent test”.
22. It was not suggested by Mr Dieu that the judge had misdirected himself as to the proper approach to the “insurmountable obstacles” test on the basis of the Court of Appeal’s earlier decision in the Agyarko case ([2015] EWCA Civ 440) when at para 25 of the determination he had stated that the test imposed a “high hurdle” and that the test was “significantly more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the UK”. The judge accepted that the test had to be applied in a “sensible and practical way”.
23. As regards the impact of the appellant’s sponsor being a Christian, the judge dealt with this at para 28 of his determination as follows:
“It is said that as a Westerner, and as a Christian, that Mrs Zafar would be at risk. This issue was explored by Immigration Judge Chana in her decision when she found (after considering the background evidence) that the appellant and his wife could live in one of the big cities in Pakistan. She also found that Mrs Zafar was not a practising Christian. I take these findings as my starting point. I note the UK travel advice at pages 52-57 of the appellant’s bundle. While this does advise against travel to certain areas of Pakistan it falls far short of saying that no British nationals should visit the country. In fact it records that 270,000 British nationals visit Pakistan every year and most visits are trouble free. Mrs Zafar would not be in Pakistan alone but under the protection of a male guardian, her husband. I find that as a Westerner, providing she takes the precautions advised in the UK travel advice, that she would not be at risk. No evidence was produced to me at the hearing that Mrs. Zafar was a practising Christian, beyond the bland statement in the bundle that she was Christian by religion. Immigration Judge Chana heard more evidence (and was told at that time that Mrs. Zafar attended a Baptist Church in Ilford) but nevertheless still found that she was not a practising Christian. On all the evidence, and taking that as a starting point, I likewise find that nothing has been advanced in this appeal to cause me to differ from the finding of Immigration Judge Chana. I find that she is not a practising Christian and she will not be at risk on that account in Pakistan. Mr Dieu submitted that ‘no doubt has been cast on whether the wife is a Christian’ but this is no answer to the proper approach under Devaseelan of paying due regard to the findings of a previous Judge which Ms Arnesen invited me to adopt. I find that the fact that Mrs Zafar is a westerner and a non-practising Christian does not amount to an insurmountable obstacle to her relocating to Pakistan to continue her family life there.”
24. As Mr Dieu ultimately acknowledged, the judge accepted that the appellant’s wife was a Christian but a “non-practising” one. That was the finding of Judge Chana whose decision was upheld by the Upper Tribunal on appeal and, therefore, was the “starting point” for the judge’s assessment of the evidence and finding on this issue (see Devaseelan [2003] Imm AR 1). Mr Dieu did not advance before me, as he had not done before Judge Woolley, any persuasive new evidence that the appellant’s wife was a practising rather than non-practising Christian. I see no possible basis upon which his factual finding that she was a non-practising Christian can be said to be legally unsustainable given Judge Chana’s finding and in the absence of such new evidence.
25. On the basis of that finding, the judge had evidence before him, to which he refers in para 28, that around 270,000 British nationals visit Pakistan each year without any difficulty. Whilst there may be some truth underlying Mr Dieu’s point that at least some of these must be British citizens of Pakistani origins, indeed that was set out in the FCO’s travel advice (at page 52 of the appellant’s bundle) relied on by the appellant before the judge, that document relates largely to the importance of foreigners “in particular westerners” being “extra vigilant” during the period of Ramadan and over Eid. The travel advice focuses on “terrorism, kidnap and sectarian violence” during that time when there is a “heightened threat” to “western nationals” in Pakistan.
26. At para 28, the judge made specific reference to this travel advice and concluded, entirely consistently with that evidence, that “providing she takes the precautions advised … she would not be at risk”.
27. In respect of Christians in Pakistan, Mr Mills referred me to the evidence set out in the Secretary of State’s refusal letter which was relied upon by the Presenting Officer before Judge Woolley. That guidance states as follows:
“Christians in Pakistan are a religious minority who, in general, suffer discrimination but this is not sufficient to amount to a real risk of persecution.
[There] are a large number of Christians in the country and the evidence does not indicate that Christians are, in general, subject to a real risk of persecution or inhuman or degrading treatment.
Christians in general are permitted to practise their faith, can attend church, participate in religious activities and have their own schools and hospitals.
Some Christians in Pakistan face discrimination and attacks targeted against them by non state actors. In general, the government is willing and able to provide protection against such attacks and internal relocation is a viable option.”
28. Taking all this evidence into account, and having regard to the “stringent test” in para EX.1., it was not irrational or perverse for Judge Woolley to find that there were not “insurmountable obstacles” to the appellant continuing his family life in the UK based upon her religion and western appearance.
29. In relation to the health of the appellant’s in-laws, the judge dealt with this at para 27 as follows:
“The fact that the appellant may have a bond with his in laws who are ailing is not, I find, an insurmountable obstacle to family life continuing with his wife in Pakistan. If they are ailing there is in the UK a health service and social services to assist them quite apart from their daughter and son in law. Both were able to come to court and the father in law still looks after their farm in Swansea. The father in law suffers from high blood pressure but this is a common condition and he does not suggest that he needs any special care for it. The mother in law suffers from diabetes and a hip condition and I accept may require more help, but I find that this does not reach the high threshold of an ‘insurmountable obstacles’. I note that at the last hearing in March 2014 the daughter is recorded as living in Ilford, Essex and so clearly she has not always been present to help her parents.”
30. Clearly, the judge had well in mind the evidence concerning the health of the appellant’s in-laws. Whilst both in-laws had some health issues – high blood pressure (his father-in-law) and diabetes and a hip condition (his mother-in-law), I agree with Mr Mills’ submission that the judge’s finding that this could not amount to an “insurmountable obstacle”, in effect to the appellant’s wife leaving her parents and living in Pakistan, was properly open to him on the evidence. It was a finding that was both rational and not perverse. Indeed, it is difficult to see how the judge could have reached any other conclusion given the nature of the health conditions and the support that would obviously be available for the appellant’s in-laws from the NHS or social services if needed.
31. For these reasons, therefore, the judge was entitled to find that the appellant could not succeed under the ‘partner’ rules in Appendix FM on the basis that it was not established that there were “insurmountable obstacles” to the appellant carrying on his family life in Pakistan.
32. Neither the grounds, nor Mr Dieu in his oral submissions, sought to challenge the judge’s adverse finding under para 276ADE and so I need say no more about that.
33. Turning to the judge’s consideration of Art 8 outside the Rules, there is no doubt that again the judge correctly approached that issue seeking to identify “compelling circumstances” sufficient to outweigh the public interest. That approach was endorsed by the Supreme Court in Agyarko and Another (see, in particular at [48]).
34. Mr Dieu’s submission was that the judge had failed to consider the health condition of the in-laws when finding there were no “compelling” circumstances to outweigh the public interest. To accept that submission would require me to conclude that, having set out their circumstances in para 27 of his judgment, the judge had forgotten those circumstances by the time he came to write para 36. That is a wholly untenable assumption to make. A judgment or determination must be read as a whole and it would be a false premise to assume that a judge is not fully aware of the contents of his or her judgment or determination throughout the process leading to the final decision. Of course, the particular context may justify such a submission but there is no basis for that here. The judge in para 36 refers to the “substance” of the appellant’s case. A crucial part of that “substance” was the health condition of the appellant’s in-laws. I, therefore, reject Mr Dieu’s submission that the judge failed to take into account the health condition of his in-laws when finding that there were no compelling circumstances sufficient to outweigh the public interest.
35. In any event, I accept Mr Mills’ submission, that those circumstances could not conceivably amount to “compelling” circumstances to outweigh the self-evident public interest given that the appellant had no lawful basis for remaining in the UK under the Rules and that his family life had been established and continued at a time when neither he nor his wife had any prospect (legitimate or otherwise) of him remaining in the UK to continue that family life.
36. For all these reasons, Judge Woolley did not materially err in law in dismissing the appellant’s appeal under Art 8 of the ECHR.
Decision
37. The decision of the First-tier Tribunal did not involve the making of a material error of law. The decision to dismiss the appellant’s appeal stands.
38. Accordingly, the appellant’s appeal to this Tribunal is dismissed.

Signed

A Grubb
Judge of the Upper Tribunal

Date 19 April 2017

TO THE RESPONDENT
FEE AWARD
There is no basis for departing from Judge Woolley’s decision that no fee award can be made as the appeal has been dismissed.

Signed

A Grubb
Judge of the Upper Tribunal

Date 19 April 2017