Tribunal decisions

The decision

IAC-AH-LEM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28620/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 1 December 2016
On 13 January 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Merlene duffus
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hachemi, instructed by Ison Harrison Solicitors
For the Respondent: Mrs Pettersen, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Merlene Duffus, born on 15 June 1957, is a female citizen of Jamaica. She entered the United Kingdom as a visitor in 2003 and overstayed. On 13 October 2010, she married Mitchell Lewis, a British citizen (hereafter Mr Lewis). She made applications for leave to remain in 2013 and 2014 which were refused. A further application for leave was refused on 11 August 2015. The appellant appealed to the First-tier Tribunal (Judge Myers) which, in a decision promulgated on 25 May 2016 dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. Granting permission, Upper Tribunal Judge Southern wrote:
"It might be considered hard to criticise the judge for not having had regard to EX1 when it appeared to be conceded that the submissions advanced on behalf of the applicant were focused on whether a grant of leave outside the Rules was required to secure an outcome compatible with Article 8 of the ECHR but it may be arguable that the need to consider that provisions of the Rules arose as the evidence emerged.
It is arguable also that the judge may have fallen into error in declining to "assess how long separation might be" if the appellant returned alone to Jamaica to seek entry clearance to return as there appears to be no assessment of whether a permanent severance of this marriage will infringe rights protected by Article 8.
It may be that, given her poor immigration history, the relatively brief marriage, the discrepant accounts of continuity of cohabitation and the judge's finding to the effect of embellishment of the appellant's evidence, the appellant faces formidable obstacles in succeeding in this claim. She is entitled to see that her claim is properly assessed and it is arguable that in confining the assessment to the period while entry clearance is sought the judge fell into error."
3. Mr Mitchell is elderly and unwell. As Judge Myers observed [18] "his health is so poor he cannot manage without the appellant's constant care." The judge "accepted it would be detrimental to Mr Mitchell if his wife was not available" but the judge did place limited weight on a medical report from a GP "because it is likely the doctor is relating what she had been told by Mr Mitchell and is unaware of the family he has living nearly and the fact that the appellant regularly makes trips to London or stays at her daughter's in Leeds." The judge found it was unreasonable to expect Mr Mitchell to live permanently in Jamaica with the appellant [19] and that it would be reasonable for him to "accompany his wife to that country on a temporary basis while she made an application for entry to the UK through the proper channels".
4. The focus of the submissions at the Upper Tribunal hearing concerned the judge's findings at [20]:
In relation to the appellant's failure to respond to the request from the respondent for information; I do not accept that she had no reasonable excuse. She was aware that she was unable to meet the deadline given by the respondent and had written to notify the Home Office of this. Although she was later told that the GP had responded she failed to request a copy of their letter. It appears the GP did write to the Home Office on 22/7/15 as reference is made to this in their letter of 11/05/16 although no copy has been provided. In my judgment, knowing how vital it is to respond promptly to the Home Office the appellant should have done more to ensure the letter was sent and at the very least a copy of the letter which she could have sent herself to the Home Office and would have been certain that it had been sent. In any event, it is likely that the GP's letter of 2015 would have confirmed that Mr Mitchell was fit to travel then as there was no suggestion that his health was worse in 2015 than it is now when he is another year older and there is no reason to believe that the respondent's decision would have been any different.
5. The refusal letter of 11 August 2015 considers the appellant's claim under the "Partner Route" (Appendix FM R-LTRP). The respondent considered that S-LTR1.7 had not been met by the appellant:
S-LTR.1.7. The applicant has failed without reasonable excuse to comply with a requirement to-
(a) attend an interview;
(b) provide information;
(c) provide physical data; or
(d) undergo a medical examination or provide a medical report.
6. The appellant had failed "to respond to a request for information dated 30 June 2015 with no reasonable excuse therefore your application falls for refusal under S-LTR1.7(b)." The request for information of 30 June 2015 concerned evidence of cohabitation between the appellant and Mr Lewis "an official letter/report from an NHS consultant regarding your partner's medical condition. This document should state his diagnosis prognosis whether he is fit to travel and list any medication he is taking." Although there was some dispute as to whether a GP letter was sent, there appears to be no indication at all that a consultant's letter containing the information requested by the respondent was ever sent either within the deadline imposed by the respondent or at all. It follows, therefore, that the decision was properly refused under Appendix FM RLTRP.
7. The respondent also considered whether EX.1 applied:
EX.1. This paragraph applies if
(i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application ;and
(ii) it would not be reasonable to expect the child to leave the UK; or
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.
8. However, whilst it was acknowledged by the respondent that the appellant and Mr Mitchell enjoyed a genuine and subsisting relationship,
your application falls for refusal under the suitability requirements of the Immigration Rules as set out earlier. These are mandatory requirements which apply to all applicants regardless whether the EX.1 criteria are met. As you failed to meet those suitability requirements you cannot benefit from the criteria set out at EX.1.
9. The purpose behind these Rules appears to be clear. An applicant may benefit from the provisions in EX.1 but only if he or she has provided to the respondent sufficient information to enable an analysis of "reasonableness" to be undertaken. In the present case, although she may have expressed herself slightly more clearly at [20], I find that the judge has found that the appellant did not respond as required to the request for information contained in the letter of 30 June 2015. It is perhaps not surprising, therefore, and notwithstanding Judge Southern's observations when granting permission, that the First-tier Tribunal went no further than [20] in examining whether the appellant might qualify under the Immigration Rules. For the reasons given by Judge Myers, she could not and the focus of the decision then shifted to Article 8 outside the Rules.
10. Although they do not constitute any threshold or test as such, the judge was required to consider whether there existed any compelling circumstances which fell outside the circumstances contemplated under the Immigration Rules before she could allow an appeal on Article 8 grounds. She correctly directed herself at [22]. The judge commented on the appellant's bad immigration history and considered it likely that she would be a burden on public funds. The grounds of appeal dispute that finding. It appears that the appellant claims to be not in receipt of any state benefits herself at the present time but is supported by those benefits and other income which her husband receives. The appellant complains that the judge has speculated on the possibility of the appellant applying for carers allowance in the event of leave being granted. I do not find that that submission has merit. The judge was entitled to look at the position as regards the expenditure of public funds in the event that the appellant is granted leave; she is unable to apply for benefits whilst her immigration status is uncertain. Given the degree of care which she provides to Mr Mitchell, it seems very likely indeed that, if she were entitled to do so, the appellant would apply and obtain carers or other allowances provided by the state. I regard the judge's comments concerning the likely increased burden on the public purse as entirely legitimate in the circumstances.
11. This brings me to the final issue. In essence, the ratio of the judge's decision is that (i) Mr Mitchell cannot reasonably be expected to live permanently in Jamaica but (ii) he can be cared for by family, friends or professional carers if the appellant were to return to Jamaica to make an out of country application or (iii) it would not damage his health significantly and would therefore be reasonable to expect Mr Mitchell to travel with his wife to Jamaica while she made an application for entry clearance. In granting permission, Judge Southern appears to raise the possibility that Mr Mitchell might travel to Jamaica and find himself stranded there permanently because his wife had failed in her application for entry clearance. I cannot find that that is a legitimate objection on the facts in this case. Judge Myers appears to have been influenced to a significant extent by the evidence which showed that the appellant does leave Mr Mitchell to be looked after by others whilst she visits her daughter in Leeds or travels to London. A visit for a finite period of time to Jamaica to make an out of country application would appear to be little more than a variation or extension of those arrangements. The appellant does not appear to have adduced any evidence to show that waiting times for applicants for entry clearance in Jamaica are excessively long. Further, there are no minor children to be considered in this instance. The judge has found that an individual with a bad immigration history and who has no minor children to care for, his partner can, at least in the short term, be cared for by others or who can accompany her for a temporary visit to Jamaica should be expected to leave the United Kingdom and apply for entry clearance from abroad. That was a finding which effectively defeated the appellant's appeal on Article 8 ECHR grounds. I consider that it was a finding open to the judge on the evidence and I further find that she has supported her finding by cogent reasons based upon that evidence. The appeal is dismissed.

Notice of Decision
This appeal is dismissed.
No anonymity direction is made.

Signed Date 10 January 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there no fee order is payable.

Signed Date 10 January 2017

Upper Tribunal Judge Clive Lane