Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27333/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 October 2016
On 20 October 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

MERITA [S}
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R. Layne, Counsel instructed by Londonium Solicitors
For the Respondent: Ms A. Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appealed the respondent's decision dated 17 July 2015 to refuse a human rights claim on the basis of her relationship with a British citizen. The respondent considered whether the appellant met the requirements of paragraph EX.1 of Appendix FM but was satisfied that there were no "insurmountable obstacles" to the couple being able to continue their relationship in the Philippines. The application was refused under paragraph EX.1(b) of Appendix FM. In the alternative, the respondent was not satisfied that the appellant met the private life requirements contained in paragraph 276ADE of the immigration rules or that there were exceptional circumstances to justify granting leave to remain outside the immigration rules.

2. First-tier Tribunal Judge Hussain ("the judge") dismissed the appeal in a decision promulgated on 23 March 2016. The judge accepted an apparent concession on behalf of the appellant that "she cannot succeed under the rules" [3]. He went on to consider whether the decision engaged the operation of Article 8 rights outside the immigration rules. The judge noted that there was no dispute that the appellant's relationship with the sponsor is genuine [10]. He went on to make the following finding [13]:

"In terms of the family relocating to the Philippines, the evidence was that the sponsor was well-established and had been running his business for 35 years, that the children were in full-time education and were settled following an acrimonious divorce and to remove them from the United Kingdom to live in the Philippines would require further court proceedings which would cause them to relive the trauma of previous custody hearings. In the circumstances, bearing in mind the best interests of the children, I was satisfied that it would be disproportionate to expect the sponsor and his children to give up everything in the United Kingdom to move to the Philippines where they would not be able to speak the language, where the sponsor would have to start over again whether through employment or self-employment and the children would be deprived of the stability that they had finally managed to achieve in the United Kingdom surrounded by their extended family."

3. Having found that it would not be proportionate to expect the sponsor and his children to continue their family life with the appellant in the Philippines the judge went on to consider whether it would be reasonable to expect her to return to make an application for entry clearance. He took into account the fact that the appellant still had family connections in the Philippines, and evidence to show that the application process would be relatively short, before concluding that it would be proportionate to expect the appellant to return to the Philippines to apply for entry clearance [14-18].

4. The appellant's grounds of appeal asserted that the judge "failed to apply the immigration rules to the appellant's case appropriately or at all" and argued that the judge's finding that it would be proportionate to expect the appellant to return to apply for entry clearance was contrary to the decision in Chikwamba v SSHD [2008] UKHL 40.

5. The grounds of appeal drafted on behalf of the appellant were poorly pleaded. The grounds asserted that the judge failed to apply the immigration rules but failed to particularise an error of law by reference to a particular rule. Reliance was placed on the decision in AB (Jamaica) v SSHD [2007] EWCA Civ 1302, which emphasised the importance of giving anxious scrutiny to the situation of a British citizen in assessing whether it is reasonable and proportionate for him to continue his family life abroad. The point was not developed any further although the grounds reiterated that the First-tier Tribunal decision was "not in accordance with relevant immigration rules and procedure".

6. The First-tier Tribunal granted permission to appeal in the following broad terms:

"The judge made findings at [10] to [16] of the decision but failed to consider such findings in relation to the legal context. There were no findings to explain why the appeal should be considered with reference to Article 8 following the decision in SSHD v SS (Congo) [2015] EWCA Civ 387 nor findings with reference to case law under article 8 and in particular the 5 step approach in Razgar. No regard was given, as was necessary to s.117 of the 2002 Act, as amended."

Decision and reasons

7. At the beginning of the hearing I raised with the parties whether the judge may have been wrong not to make any findings in relation to the immigration rules notwithstanding the apparent concession made by the appellant's representative. The judge made a clear and unchallenged finding that it would be disproportionate to expect the sponsor and his children to leave the UK. On the face of it this finding was relevant to the question of whether there were "insurmountable obstacles" to the couple continuing their family life outside the UK for the purpose of paragraph EX.1 of Appendix FM.

8. Ms Fijiwala accepted that the respondent had considered whether the appellant met the requirements of paragraph EX.1 of Appendix FM in the decision letter and acknowledged that the judge was likely to have fallen into error in failing to consider the immigration rules. However, she argued that the point was not properly argued in the grounds and did not form part of the grant of permission. Very fairly, she accepted that the findings at paragraph 13 were likely to be sufficient to show that the appellant met the requirements of paragraph EX.1.

9. It is unclear why the appellant's representative before the First-tier Tribunal might have conceded that she did not meet the requirements of the immigration rules in circumstances where it was argued that it would be disproportionate to expect the UK sponsor and his children to continue their family life with the appellant in the Philippines. The respondent did not refuse the application under the 'Suitability' or the 'Eligibility' criteria contained in Appendix FM. The only reason given for concluding that the appellant did not meet the requirements of the immigration rules was that there was insufficient evidence to show that there would be "insurmountable obstacles" to the couple continuing their relationship in the Philippines for the purpose of paragraph EX.1.

10. It is clear from the judge's findings at paragraph 13 that he took into account the particular circumstances of the case. These included the nationality of the sponsor and his children, their length of residence and their significant ties to the UK as well as the compassionate circumstances surrounding the sponsor's acrimonious divorce and the best interests of the children. Having considered the circumstances as a whole the judge came to a clear, unambiguous and unchallenged finding that it would be disproportionate to expect the appellant's partner and his children to continue their family life with her in the Philippines. The only reason why he went on to dismiss the appeal with reference to Article 8 outside the rules was that he considered it reasonable to expect the appellant to return to the Philippines to make an application for entry clearance under the immigration rules.

11. The relevant test under paragraph EX.1 is whether there are "insurmountable obstacles" preventing the couple from continuing their relationship in the Philippines. Having made clear findings that it would be disproportionate to expect the sponsor and his children to continue their family life with the appellant in the Philippines the terms of paragraph EX.1 should have come to the fore of the judge's mind notwithstanding any concession that the appellant's representative might have made.

12. In R v SSHD ex parte Robinson [1997] 3 WLR 1162 the Court of Appeal considered whether the Tribunal was under a duty to consider obvious errors in a Special Adjudicator's decision. In that case the Special Adjudicator had failed to consider an essential element when assessing a claim under the Refugee Convention. The Court of Appeal pointed out that the central issue in such appeals was whether the UK would be in breach of its obligations under the Refugee Convention. The Court went on to state [37]:

"It follows from what we have said that it is the duty of the appellate authorities to apply their knowledge of Convention jurisprudence to the facts as established by them when they determine whether it would be a breach of the Convention to refuse an asylum-seeker leave to enter as a refugee, and that they are not limited in their consideration of the facts by the arguments actually advanced by the asylum seeker or his representative."

13. The Court of Appeal went on to identify the circumstances in which it might be appropriate for the Tribunal to grant permission to appeal based on an argument that had not been put before the Special Adjudicator or was not outlined in the grounds of appeal. The Court concluded that it would only be permissible if a point is sufficiently "obvious" [39]:

"The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the Tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely "arguable" as opposed to "obvious". Similarly, if when the Tribunal reads the Special Adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the Tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the Grounds of Appeal to the Tribunal had a strong prospect of success if leave to appeal were to be granted."

14. Robinson was decided before the commencement of the Human Rights Act 1998. The obligations set out in the European Convention are no less important than those of the Refugee Convention. Both recognise fundamental minimum standards of rights and obligations. Section 6 of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. A "public authority" includes a court or tribunal as well as a person whose functions are of a public nature. The Tribunal and the Secretary of State are both under a duty not to act in a way that is incompatible with Convention rights. It seems clear that the principles outlined in Robinson should also apply to the assessment of human rights claims.

15. I raised concerns about the First-tier Tribunal Judge's failure to consider whether the appellant met the requirements of paragraph EX.1 in light of the findings he made in paragraph 13 of the decision. I acknowledge that the grounds only raise a challenge to the immigration rules in an oblique way. Quite rightly, Ms Fijiwala pointed out that the error was not properly articulated in the grounds of appeal or the grant of permission. However, it seemed clear that she had anticipated the point. As such I was satisfied that it was a sufficiently obvious point given the First-tier Tribunal's findings.

16. The application for leave to remain on human rights grounds was made on 21 May 2015 and was refused in a decision dated 17 July 2015. The appeal fell to be considered under the new appeals provisions introduced by way of amendments to the Nationality, Immigration and Asylum Act 2002 ("NIAA 2002"). The appeal was brought under the amended section 82 of the NIAA 2002 against the decision to refuse a human rights claim. The only ground of appeal could be that removal from the UK was unlawful under section 6 of the Human Rights Act 1998 ("HRA 1998").

17. The respondent's policy on "Rights of Appeal" (Version 3.0) makes clear that a number of applications made under the immigration rules will be deemed as human rights applications giving rise to a right of appeal, including applications made under Appendix FM (except for provisions relating to bereavement and domestic violence). It seems clear from the respondent's policy that it was intended that the immigration rules would still be central to the assessment of a human rights claim.

18. The fact that the Tribunal no longer has power to decide that a decision is not in accordance with the immigration rules does not mean that the immigration rules are not a relevant consideration. If a person meets the requirements of the immigration rules relating to private or family life it is likely, in the majority of cases, that this will be sufficient to show that removal is unlawful under section 6 of the HRA 1998. The immigration rules are said to reflect the respondent's position as to where a balance will be struck between the right to respect for private and family life and relevant public interest considerations such as the maintenance of an effective system of immigration control (paragraph GEN.1.1, Appendix FM). In such circumstances it would be difficult for the respondent to argue that removal would be lawful under section 6 of the HRA 1998 if an appellant is found to meet any of the relevant private or family life requirements of the immigration rules.

19. I acknowledge that there may be some qualitative differences between the fairly stringent "insurmountable obstacles" test contained in paragraph EX.1 and the wider proportionality assessment conducted outside the immigration rules. The sole focus of the "insurmountable obstacles" test is on whether it is reasonable to expect a couple to continue their family life outside the UK. In R (on the application of Chen) v SSHD (Appendix FM - Chikwamba - temporary separation - proportionality) [2015] UKUT 189 the Tribunal recognised that Appendix FM does not include consideration of the question of whether it would be proportionate to expect a person to return home to make an application for entry clearance.

20. The proportionality assessment conducted under Article 8 outside the rules is a much wider assessment. It can take into account a number of other factors. These might include the question of whether it is proportionate to expect a person to return to their country of origin to apply for entry clearance if they do not meet the requirements of the immigration rules. Other factors that might need to be taken into account as part of a broad assessment outside the rules include the public interest considerations contained in section 117B-C of the Nationality, Immigration and Asylum Act 2002 ("NIAA 2002").

21. Ms Fijiwala acknowledged that the judge's finding that it would not be proportionate to expect the UK sponsor and his children to continue their family life with the appellant in the Philippines was likely to be sufficient to meet the "insurmountable obstacles" test on the facts of this particular case, even if there might be some qualitative differences between the two assessments. The "insurmountable obstacles" test is stringent but I am satisfied that the judge took into account a number of compelling factors relating to the sponsor and his children before concluding that it would be disproportionate to expect them to continue their family life in the Philippines. The same factors are capable of amounting to insurmountable obstacles to the couple being able to continue their family life outside the UK.

22. The grounds of appeal relating to the judge's assessment of the principles in Chikwamba amount to little more than disagreements with the decision. The judge gave adequate reasons to explain why the appellant's family connections and the relatively short period of time it might take to apply for entry clearance rendered it proportionate to expect her to return to apply for entry clearance. However, if he had considered whether the terms of the family life rules contained in paragraph EX.1 were met it is apparent that his findings in paragraph 13 were likely to have yielded a positive result.

23. For these reasons I am satisfied that the human rights issues engaged in this appeal are sufficiently important to render the judge's failure to consider whether the appellant met the requirements of the immigration rules an obvious error on a point that, on his own findings, had a strong prospect of success.

24. I conclude that the First-tier Tribunal decision involved the making of an error on a point of law. It follows from the reasoning set out above that in remaking the decision the appeal should be allowed because the judge's findings were sufficient to show that the appellant met the family life requirements contained in paragraph EX.1 of the immigration rules. For the purpose of assessing whether removal would be unlawful under section 6 the rules reflect the respondent's position on where a fair balance will be struck. In such circumstances it is not necessary to go on to make a wider assessment of the case under Article 8 outside the rules.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law

I re-make the decision and ALLOW the appeal on human rights grounds

Signed Date 20 October 2016

Upper Tribunal Judge Canavan