Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27362/2014

THE IMMIGRATION ACTS

Heard at City Centre Tower Birmingham
Decision & Reasons Promulgated
On 31st October 2016
On 22nd November 2016

Before

DEPUTY upper tribunal JUDGE RENTON

Between

raheela begum
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Sarwar of A S H Immigration Services
For the Respondent: Mrs Abone

DECISION AND REASONS
Introduction
1. The Appellant is a female citizen of Pakistan born on 10th August 1983. The Appellant first arrived in the UK on 25th September 2006 when she was given limited leave to enter until 8th September 2008 as the spouse of a British citizen, Hakeel Khan. Thereafter the Appellant made a number of unsuccessful applications for further leave to remain as a spouse and also on the basis of long residence. Eventually the Appellant applied for leave to remain on asylum and human rights grounds on 28th January 2014. That application was refused for the reasons given in the Respondent's letter of 17th June 2014. The Appellant appealed, and her appeal was heard by First-tier Tribunal Judge Mathews (the Judge) sitting at Stoke-on-Trent on 24th June 2015. He decided to dismiss the appeal on asylum, humanitarian protection, and human rights grounds, and also under the Immigration Rules. The Appellant sought leave to appeal that decision, and on 28th October 2015 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The Appellant's case was that he was at risk on return to Pakistan from her husband's family whom she had married against their wishes. Otherwise, the Appellant had a genuine and subsisting relationship with her husband, and it would not be possible for him to return to Pakistan with her, and that the Respondent's decision amounted to a breach of the Appellant's rights under Article 8 ECHR.
4. The Judge dismissed the appeal because he found the evidence of the Appellant and the Sponsor as regards the risk on return lacking in credibility. The Judge described the evidence as contradictory, lacking in detail, and implausible. The Judge also took account of the Appellant's delay in claiming protection. In any event, the Judge found that the Appellant could safely relocate within Pakistan.
5. It was agreed between the parties at the hearing that the Appellant could not benefit from the provisions of Appendix FM of HC 395 and particularly paragraph EX.1 because of the timing of her application. In the alternative, the Judge decided that there were no insurmountable obstacles to the Appellant's husband returning to Pakistan with her. Further, the Judge found that the Appellant had not resided in the UK for long enough to be able to rely on paragraph 276ADE of HC 395, and that there were no factors not already taken into account which would allow him to consider the Appellant's Article 8 ECHR rights outside of the Immigration Rules.
6. At the hearing, Mr Sarwar argued that the Judge had erred in law in these conclusions. The Judge had been prejudiced against the Appellant from the outset in the error as regards the timeliness of the Appellant's application referred to at paragraphs 4 and 5 of the Decision, and this error had infected the Judge's view of the credibility of the evidence. In any event, the Appellant had satisfactorily explained any delay. The Judge had also misunderstood the evidence of the Appellant who had married her husband in Pakistan fully aware of the situation. Also the Judge had failed to put to the Appellant his finding in the Decision that the Appellant could safely relocate within Pakistan.
7. As regards Article 8, Mr Sarwar submitted that the Judge had erred in law in finding that there were no insurmountable obstacles to the Appellant's husband returning to Pakistan with her partly because the Appellant's husband had not produced evidence of his employment in the UK. In fact, in the Appellant's Bundle there was documentary evidence of such from HMRC. The Judge had not fully considered the proportionality of the Respondent's decision, and had been wrong to find that it would not be unreasonable for the Appellant to return to Pakistan and seek entry clearance from there.
8. In response, Mrs Abone referred to the Rule 24 response and argued that there were no such material errors of law. The Judge had not misunderstood the chronology of the Appellant's immigration history which he had set out at paragraphs 4 and 5 of the Decision, and dealt with at paragraphs 22 and 27. The Judge had made findings open to him on the evidence.
9. As regards Article 8 ECHR, the Judge had dealt with Appendix FM and paragraph 276ADE of HC 395 and those decisions had not been challenged. The Judge had properly and fully considered the Appellant's Article 8 rights both within and outside the Immigration Rules.
10. I find no material error of law in the decision of the Judge which I therefore do not set aside. The Judge dismissed the appeal on asylum and humanitarian protection grounds because he did not find credible the evidence of the circumstances of the Appellant's marriage. This was a decision open to the Judge and which he fully explained. The Judge identified inconsistencies, vagueness, and implausibilities in the evidence. He gave adequate reasons over and above his view, perhaps mistaken, that the Appellant had delayed in seeking protection. In any event, any error in this respect is immaterial because at paragraph 28 of the Decision the Judge found the Appellant not to be at risk on return even taking her case at its highest.
11. As regards Article 8 ECHR, the Judge dealt properly with Appendix FM and paragraph 276ADE of HC 395. He made a finding that there were no insurmountable obstacles to the Appellant's spouse returning to Pakistan with her. Again this was a decision open to the Judge and which he fully explained. Any error concerning the Sponsor's employment in the UK was only a small part of that consideration and not determinative. At paragraph 42 of the Decision the Judge decided that there were no further factors for him to consider outside of the Immigration Rules. The Judge was therefore correct not to consider proportionality as such in accordance with the decision in SS (Congo) [2015] EWCA Civ 387.
12. For these reasons I find no material error of law in the decision of the Judge.

Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside that decision.
The appeal to the Upper Tribunal is dismissed.
Anonymity
The First-tier Tribunal did not make an order for anonymity. I was not asked to do so and indeed I find no reason to do so. I therefore make no order.

Signed Date

Deputy Upper Tribunal Judge Renton