Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27838/2014

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
on 7 April 2016
On 11 May 2016

Before

Deputy Upper tribunal Judge Mailer

Between

[A V]
no anonymity direction made
Appellant
and

the secretary of state for the home department
Respondent
Representation

For the Appellant: Ms C S Peterson, counsel (instructed by London Solicitors LLP)
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of the Philippines, born on [ ] 1966. Her appeal against the decision of the respondent dated 25 June 2014 curtailing her leave to remain and to remove her by way of directions under s.47 of the Immigration, Asylum and Nationality Act 2006 was dismissed by the First-tier Tribunal Judge on human rights grounds and under the Immigration Rules. The decision was promulgated on 17 September 2015.
2. On 23 February 2016, Upper Tribunal Judge Perkins granted the appellant permission to appeal. He noted that the appellant entered the UK in June 2008 and has remained here ever since. She was given leave to remain outside the rules in July 2012 until July 2015 but it was curtailed to expire on 25 June 2014. She had been given exceptional leave to remain as she had married a man in the UK. He noted that the Judge seems to have accepted that the marriage broke down because of her husband's violence; she also found that she could return to the Philippines.
3. He held it to be arguable that the Judge did not engage with the appellant's claim that she should have been treated as a victim of domestic violence and allowed to remain. Had she been admitted as a wife rather than being allowed to remain exceptionally, she would be entitled to such protection.
4. Ms Peterson, who did not represent the appellant before the First-tier Tribunal, adopted the grounds of appeal. She noted that the Judge considered the submission that there were compelling reasons why the appellant should be granted leave to remain in the UK outside the rules. It was accepted by counsel who represented the appellant before the First-tier tribunal that the appellant could not be granted leave to remain under the Rules [16] and [17].
5. The First-tier Judge referred to sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002 and considered paragraph 276ADE(vi) of the Rules. She found that the appellant had lived for most of her life in the Philippines and had worked there as an adult. She was 42 years old when she left and has relatives there. She is familiar with its language, customs and society. Accordingly, there would not be any significant obstacles to her re-integration into the country on her return [20].
6. She had regard to the maintenance of effective immigration controls which was in the public interest. The appellant had a limited entitlement of discretionary leave to remain in the UK at a time when her circumstances were different. It is not however disproportionate that her claim for leave to remain be refused and that she be removed from the UK. She did not find that there are sufficiently compelling reasons why she should be granted leave outside the rules [21].
7. Ms Peterson submitted that the Judge did not properly factor in the competing public interest considerations involved in the breakdown of the appellant's marriage through domestic violence. That should in the circumstances have been treated as a compelling circumstance rendering the proposed removal disproportionate. Further, the only reason the appellant failed to qualify for leave to remain pursuant to the Immigration Rules was as a result of her status upon entry into the UK. That too is relevant to the proportionality and the balancing exercise.
8. The First-tier Judge accepted that the appellant's marriage broke down on account of significant domestic violence. Ms Peterson informed me that the appellant's husband received a sentence of imprisonment following his assault on the appellant. It was accepted therefore that she fled the marital home to avoid further violence.
9. In expanding her submissions she contended that the Judge did not have proper regard to the public interest in ensuring that women should not be compelled to stay in an abusive and violent relationship, fearful that leaving the relationship would endanger her immigration status. The public interest in respect of those who entered the UK on a spousal visa is reflected in Appendix FM section DVILR 1.1 which sets out the requirements to be met for indefinite leave to remain in the UK as a victim of domestic violence. She did not meet the requirement under DVILR1.1 that her first grant of limited leave under the Appendix must have been as a 'partner' under paragraph D- ECP.1.1 or 1.2 of the Appendix, which sets out the requirements for entry clearance as a partner.
10. There were consequently two competing public interests at play in this case and there should have been a proper analysis of the balance between them. This the Judge failed to carry out at all. She merely referred at [17] to the submissions made on the appellant's behalf relating to the public interest in ensuring that victims of domestic violence should feel able to leave the relationship. However, in finding that there were not sufficiently compelling reasons, the Judge only had regard to the public interest in the maintenance of effective immigration control [21].
11. It was further contended that the failure by the respondent to engage with the appellant's particular circumstances, namely that her marriage broke down as a result of domestic violence, rendered the decision not in accordance with the law.
12. Ms Peterson submitted that there would only be a very limited category of person in the position of the appellant. A criminal offence had been committed against her. The public interest balance, which is part of the Rules, had not been considered in her case.
13. She referred to a decision of the Upper Tribunal in SSHD v Fakhrutdinova, promulgated on 30 September 2013 (appeal number IA/07490/2013). Upper Tribunal Judge McGeachy found that the appellant, a Russian, came to the UK on a work placement. She was allowed to remain as a student. She then married a British citizen and applied for leave to remain as a spouse, which was eventually allowed following a successful appeal. She was granted 36 months' discretionary leave to remain.
14. Her marriage broke down on account of domestic violence. They then divorced. She thereafter applied for leave to remain. The application was refused on human rights grounds rather than under the domestic violence provisions in the Rules.
15. The First-tier Tribunal Judge applied the structured approach set out in Razgar v SSHD [2004] UKHL 27. The Judge found that the aim of the maintenance of effective immigration control was not a legitimate aim to be achieved in this case. He was rather of the view that the legitimate aim here is the protection of women who are victims of domestic violence. The underlying purpose of the Immigration Rules is to ensure that victims of domestic violence are not faced with having to stay in a violent and abusive relationship in order to maintain their immigration status. It was plainly wrong that the appellant should be placed in a worse position than someone who had been granted 26 months' leave or less who would be entitled to indefinite leave to remain once they had established domestic violence without the additional upheaval of having to leave the UK.
16. The First-tier Judge in that case found that it would be unnecessary and disproportionate for the respondent now to say that once the relationship had broken down owing to domestic violence, the appellant should be granted no further leave, and if required, to leave the UK. It is only right that the spirit of the protection afforded by the immigration rules should apply to Ms Fakhrutdinova.
17. Upper Tribunal Judge McGeachy upheld the decision stating that those conclusions were open to the First-tier Judge, who took into account the legitimate aim, namely the maintenance of effective immigration control, but weighed against that the terms of the domestic violence rules. He did not say that he was allowing the human rights appeal on the basis of the family life provision but what he was doing was weighing up a large number of factors which he felt weighed in the balance and showed that the removal of this appellant would be disproportionate.
18. On behalf of the respondent, Mr Walker very fairly accepted that there had not been an adequate analysis and assessment of the competing public interests at play in this case. He accordingly accepted that there had been an error of law and that the decision should be set aside.
19. I accept that there has been a failure by the Judge to make a proper assessment of the competing public interests as outlined. I accordingly find that the decision of the First-tier Tribunal involved the making of an error of law. I accordingly set aside the decision.
20. The parties both submitted that the matter should be remitted to the First-tier Tribunal for fresh decision to be made. In acceding to that request I have had regard to the Senior President's practice statement regarding the remitting of an appeal to the First-tier Tribunal for a fresh decision.
21. The appeal is accordingly remitted to the First-tier Tribunal at Hatton Cross. The agreed hearing date is 5 August 2016.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and the decision is set aside.
The case is remitted to the First-tier Tribunal (Hatton Cross) for a fresh decision to be made by another Judge.
No anonymity direction is made.

Deputy Upper Tribunal Judge Mailer

Signed Date 6 May 2016