Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29300/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 April 2017
On 28 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

Secretary of State for the Home Department
Appellant
and

LINDA GUADALUPE MORA-CURTIS
(anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr S Kotas, Home Office Presenting Officer
For the Respondent: Mr I Khan of Counsel instructed by ICS Legal

DECISION AND REASONS

1. This is an appeal against the decision of First-tier Tribunal Judge S Taylor promulgated on 2 September 2016.

2. Although before me the Secretary of State for the Home Department is the appellant and Mrs Mora-Curtis is the respondent, for the sake of consistency with the proceedings before the First-tier Tribunal I shall hereafter refer to the Secretary of State as the Respondent and Mrs Mora-Curtis as the Appellant.

3. The Appellant is a citizen of the United States of America born on 23 November 1974. She entered the United Kingdom on 9 September 2013 pursuant to a Tier 4 (General) Student Migrant entry clearance conferring leave valid until 4 April 2015. Whilst she was in the United Kingdom pursuing her studies she met Mr Spencer Garth Curtis, a British citizen born on 30 March 1979. In due course, having met in May 2014, they married on 12 March 2015. Just before the expiry of her leave the Appellant made an application for leave to remain on the basis of her relationship with Mr Curtis.

4. The application form used by the Appellant is at Appendix A of the Respondent’s bundle before the First-tier Tribunal. It may be noted that nothing was specified under section 7A of the application form in respect of the financial circumstances of either the Appellant or her sponsoring husband. It may also be seen that at section 10.12 the Appellant acknowledged that she had ties with the United States of America by way of her mother and brothers.

5. The Appellant’s application was refused for reasons set out in a ‘reasons for refusal’ letter (‘RFRL’) dated 10 August 2015. The Secretary of State gave particular consideration to the application with reference to both the so-called 5-year partner route and the 10-year partner route.

6. In respect of the 5-year partner route the Respondent was satisfied that the Appellant met the ‘suitability’ requirements, but was not satisfied in respect of the ‘eligibility’ requirements with reference to the financial requirements of Appendix FM. Accordingly, the application was rejected under the 5-year partner route.

7. The Respondent went on to consider the 10-year partner route: it was accepted that the Appellant met the requirements in respect of both ‘suitability’ and ‘eligibility’; attention was then turned to paragraph EX.1 of the Immigration Rules. It may be helpful at this stage to recite the terms of paragraph EX.1 so far as they are applicable to the Appellant’s case. EX.1, subparagraph (b) is in these terms:
“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.”
Paragraph EX.2 of Appendix FM provides the following:
“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.”

8. The Respondent determined that the Appellant could not benefit from paragraph EX.1 for reasons set out in the RFRL, and accordingly refused the application under the 10-year partner route.

9. Consideration was also given to paragraph 276ADE in respect of private life, but the application was also refused with reference to this paragraph. The RFRL also took into account the circumstances of the Appellant having been treated in the United Kingdom for stage 3 thyroid cancer, but determined that this did not amount to an exceptional circumstance such that leave should be granted outside the Rules.

10. The Appellant appealed to the IAC. The appeal was heard by First-tier Tribunal Judge Taylor on 11 August 2016 and allowed for reasons set out in Judge Taylor’s decision promulgated on 2 September 2016. The Respondent challenges that decision by way of grounds of appeal which were considered to be arguable by First-tier Tribunal Judge Grant-Hutchison who gave permission to appeal on 9 March 2017.

11. The focus of the challenge by the Respondent is in respect of the First-tier Tribunal Judge’s consideration of the issue of ‘insurmountable obstacles’ and the particular circumstance of the Appellant’s sponsoring husband being a British citizen.

12. The appeal before the First-tier Tribunal Judge was subject to the regime of appeal rights subsequent to the amendments to Part 5 of the Nationality, Immigration and Asylum Act 2002 made by the Immigration Act 2014. The available right of appeal therefore was that the decision was unlawful under section 6 of the Human Rights Act 1998; in practice this involved an assertion that the decision was incompatible with rights under Article 8 of the European Convention. I emphasise the nature of the statutorily available ground of appeal at this stage because although the First-tier Tribunal Judge recognised the scope of appeal at paragraph 2 of his Decision, in the event he purported to allow the appeal at paragraph 14 “with respect to the Immigration Rules”. The First-tier Tribunal Judge in fact had no jurisdiction to allow an appeal under the Immigration Rules and was confined to the ground specified in the amended Act by reference to section 6 of the Human Rights Act 1998. Be that as it may, even in a human rights appeal it is appropriate to take into account the requirements of the Immigration Rules and indeed it is very clear that the focus of argument before the First-tier Tribunal was in respect of paragraph EX.1 and the issue of insurmountable obstacles.

13. The First-tier Tribunal Judge’s Decision and Reasons at paragraphs 7-9 sets out the evidence that was before him in some detail: in particular the Judge appears to traverse the evidence given by each of the Appellant and her husband in respect of their circumstances in the UK and their anticipated difficulties in the event of an attempted relocation to America. At paragraph 10 the Judge records the submissions of the representatives, and then from paragraph 11 the Judge sets out his ‘Findings and Decision’.

14. At paragraph 11 the First-tier Tribunal Judge rejects arguments that were advanced in respect of the financial requirements of the Immigration Rules, and in those circumstances necessarily reaches the conclusion that the Appellant could not satisfy the requirements of the Rules with reference to the so-called 5-year route.

15. At paragraph 12 the Judge goes on to consider paragraph EX.1. The Judge says this:
“The parties had given evidence of a number of factors which they consider would cause very serious hardship if the appeal was refused. However, the appellant came to the UK as a student with no expectation of being granted long term leave to remain in the UK. She married the appellant [sic. – obviously a reference to Mr Curtis was intended] in the full knowledge that she did not have long term leave to remain in the UK and that her status in the UK was yet to be determined. She claimed that she would have difficulty re-establishing herself in the USA but the appellant had been working in the USA and lived alone, she had belongings in the USA which had been placed with her mother and friends. She stated in evidence that there would be no reason why she would be unable to find other employment on return to the USA. She thought that she earned around the appropriate level of salary to sponsor a spouse to enter the USA. The appellant had previously been living and working in the USA, she was currently working in the UK and I am not satisfied that the appellant would face very serious hardship in finding work and accommodation on return, she came as a student and she must therefore have planned to return and re-establish herself. With regard to the appellant’s health, she has had surgery and radio-iodine treatment in the UK and was now in a monitoring stage. The appellant previously had medical insurance in the USA and subject to finding employment there was no reason why she could not arrange for insurance coverage for future treatment, the medical facilities in the USA are comparable to those in the UK and no evidence has been submitted that she would be unable to seek any required further treatment in the USA. The appellant had anxiety which was associated with her cancer condition but this also could be treated in the USA.”

16. The Judge then continued at paragraph 13 by addressing the concerns and circumstances of the sponsor. He said this:
“The sponsor gave evidence that he too suffered from mental health issues and that the separation from the appellant would have a detrimental affect on his mental health. On reading the medical reports it would appear that the sponsor had a history of mental health difficulties but was currently stable on medication. The sponsor was on a standard medication which was widely available and no reason has been submitted [why] the sponsor could not seek treatment in the USA and be prescribed suitable medication. The sponsor stated that he had elderly parents in the UK and looked after them but he was not their registered carer and did not live in the same household as his parents, his parents lived in Essex and he lived some distance away in Stoke Newington with the appellant. No evidence was submitted of other care which was available for his parents, he had a sister in the UK and no reason was given as to why she could not also assist with regard to the sponsor’s parents.”

17. The Judge continues with a reference to the circumstances of the Appellant and sponsor when they married:
“The parties married in the UK knowing that the appellant came from another country and that the issue of leave to remain in the UK would become an issue. The appellant was aware that the sponsor was unemployed and must have known that this would affect an application for leave.”
In this context, whilst the respective witness statements before the First-tier Tribunal of both the Appellant and the sponsor do not refer to any discussions or considerations they might have had prior to entering into their marriage, they have told me today during the course of the hearing that whilst they were alert to the requirements of the Immigration Rules and anticipated that things might be difficult, they had not focused on this issue as fully as perhaps would have been prudent. To some extent each of them has attributed this to their own particular medical issues, most particularly concern over the Appellant’s diagnosis of thyroid cancer: the suggestion is that their minds were elsewhere. Over and above this they have emphasised yet again today the closeness of their bond and their feelings for each other and their hope that matters would, as it were. ‘sort themselves out’, but that perhaps their concern to remain together as a couple had clouded the objectivity of their consideration of the particular difficulties that might arise from the Appellant’s immigration status.

18. The matters I have set out above from paragraphs 12 and 13 are, on any reading, essentially a rejection of the arguments in respect of practical difficulties in establishing family life together in America. The Judge summarised his analysis in these terms:
“I find that no single issue raised by the appellant and sponsor amounts to an insurmountable obstacle within the meaning of paragraph EX.1.”

19. However, the Judge then went on to consider one further matter: the status of Mr Curtis as a British citizen. It is this that has become the focus of the Secretary of State’s challenge. The Judge states in the second half of paragraph 13:
“However the sponsor is a UK citizen. He was born in the UK and there is no evidence that he has lived outside of the UK. The appellant has submitted medical evidence of the importance of continued support given to the appellant by the sponsor, and evidence has been submitted of the increased anxiety suffered by the sponsor as a result of the refusal, the parties gave evidence of their mutual dependence on each other. If the appellant left the UK on her own it would deprive a UK citizen of his spouse and of her support, which would be contrary to the guidance in the 2015 case of Mirza CSIH 28 which confirmed that the sponsor’s right of residence as a citizen should weigh heavily in the proportionality test and that a UK citizen should not be expected to leave the UK. The case of AB [2007] EWCA Civ 1302 referred to the reluctance to requiring a UK citizen to leave the UK, the case of AF [2009] EWCA Civ 240 applied Beoku-Betts to the needs of the sponsor in a similar case, and the case of MA (Pakistan) [2009] EWCA Civ 953 referred to the guidance in the case of Chikwamba even if children were not involved. A separation of the parties would force a UK citizen to leave the UK which is contrary to the guidance case law. I am satisfied that given the combination of all of the factors raised in evidence is such that there would be insurmountable obstacles to the parties living elsewhere within the definition of paragraph EX.2.”
The Judge thereafter goes on to state that “The appeal with respect to the Immigration Rules is allowed”.

20. The Respondent’s challenge is focused on those closing sentences in paragraph 13 of the decision. She pleads in aid in particular the case of Agyarko and Others v Secretary of State for the Home Department [2015] EWCA Civ 440. Particular attention is drawn to paragraphs 21, 22 and 25 which are in the following terms:
“21. The phrase ‘insurmountable obstacles’ as used in this paragraph of the Rules clearly imposes a high hurdle to be overcome by an applicant for leave to remain under the Rules. The test is significantly more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the United Kingdom.
22. This interpretation is in line with the relevant Strasbourg jurisprudence. The phrase ‘insurmountable obstacles’ has its origin in the Strasbourg jurisprudence in relation to immigration cases in a family context where it is mentioned as one factor among others to be taken into account in determining whether any rights under Article 8 exists for family members to be granted leave to remain or leave to enter a contracting state. The phrase as used in the Rules is intended to have the same meaning as in the Strasbourg jurisprudence. It is clear that the European Court of Human Rights regards it as a formulation imposing a stringent test in respect of that factor as is illustrated by Jeunesse v Netherlands.”
And
“25. The statement made in Mrs Agyarko’s letter of application of 26 September 2012 that she may be separated from her husband was very weak and was not supported by any evidence which might lead to the conclusion that insurmountable obstacles existed to them pursuing their family life together overseas. There was no witness statement from Mrs Agyarko or Mr Bennett to explain what obstacles might exist. The mere facts that Mr Bennett is a British citizen, has lived all his life in the United Kingdom and has a job here and hence might find it difficult and might be reluctant to relocate to Ghana to continue their family life there could not constitute insurmountable obstacles to his doing so.”

21. Perhaps unsurprisingly, the Respondent emphasises the last quoted sentence. Whilst of course there are some factual differences between the case of Agyarko and the current case the Secretary of State essentially places reliance upon what is said at paragraph 25 to the effect that the mere fact of being a British citizen who has resided throughout his or her life in the United Kingdom is not in and of itself sufficient to constitute insurmountable obstacles. In this context Mr Khan has suggested that a distinction might be made between the case of Agyarko and the present case on the basis that Agyarko refers to an absence of evidence having been filed. However it might readily be said in the current case that, although evidence was filed and oral evidence heard apparently at some length, the First-tier Tribunal Judge rejected each aspect of the matters advanced as potentially constituting an insurmountable obstacle. The filing of evidence that was ultimately evaluated as not constituting insurmountable obstacles does not, therefore, serve to materially distinguish the instant appeal or otherwise elevate the sponsor’s citizenship to a more significant weight.

22. In my judgment there is considerable strength to the Respondent’s submission that the First-tier Tribunal Judge appears to have effectively placed determinative weight upon the circumstance of the status of the Appellant’s husband as a British citizen who has lived throughout his life in the United Kingdom, in reaching a conclusion on the question of ‘insurmountable obstacles’.

23. Mr Khan has attempted to argue that the First-tier Tribunal Judge whilst indicating at paragraph 13 that “no single issue raised by the appellant and sponsor amounts to an insurmountable obstacle”, had thereafter nonetheless appropriately accorded some weight to them in considering them in combination with the status of the sponsor in reaching his conclusion. If that was indeed the intention of the First-tier Tribunal Judge it seems to me that that has not been adequately or clearly expressed or adequately or clearly reasoned. The rejection of those matters advanced by the Appellant and the sponsor as potentially amounting to insurmountable obstacles is quite emphatic over the course of paragraph 12 and the first part of paragraph 13. In my judgment it is so emphatic that there is no ‘residue’ that could be gathered together to make any further cumulative impact such that in combination with the sponsor’s status it could be said that the insurmountable obstacle test was nonetheless met. As I say, if the Judge had indeed intended to express such a conclusion it would have required more by way of clarity of expression and more by way of clarity of reasoning. I am not satisfied, despite Mr Khan’s able submission, that that was indeed what the Judge was purporting to do in the concluding part of paragraph 13.

24. I have not being directed to anything in any of the case law cited by the Judge that elevates the status of the sponsor as a British citizen to a determinative factor. Rather it seems to me that the thrust of all of this case law is that when considering proportionality - and indeed ‘proportionality’ as perhaps distinct from the issue of ‘insurmountable obstacles’ - it is relevant to have regard to the circumstances of a sponsor, and in particular if the sponsor is a British citizen to accord that some significant weight. But there is nothing in the case law of which I am aware, (and certainly nothing to which I have been referred), that suggests that the British citizenship of a spouse is in any way determinative. If it were otherwise, the Rules would essentially be negated. However, in substance the effect of the Judge’s reasoning is indeed to accord determinative weight to the sponsor’s status: the Judge identifies no other feature of the case that might constitute an obstacle to family life continuing in America.

25. Accordingly I find that there is a material error of law that requires that the decision be set aside. The decision in the appeal will require to be remade.

26. It has been indicated to me today that there may be new matters of evidence that the Appellant would wish to advance in support of her case at any rehearing. Ordinarily, all such matters should have already been filed with the Tribunal but I am mindful of the fact that the Appellant has a medical condition that is being monitored and may be susceptible to change. In particular she has suggested that in respect of her thyroid there has been a recent change revealed by blood tests; although she expresses that she is ‘troubled’ by this, in the absence of medical evidence I have no way of evaluating the significance of any particular change revealed by monitoring. Further evidence in this regard may be of particular relevance because the Appellant now suggests that a consequence of her condition is a sense of increasing fatigue. Although she has until recently been working in part-time employment in the UK as permitted as a condition of her Tier 4 visa, she tells me today that she is finding it increasingly difficult to maintain even this level of part-time employment. The potential significance of this is in the context of the possibility of the couple relocating to the United States of America: before the First-tier Tribunal Judge - seemingly in response to a direct question – the Appellant said there was no reason she could not find employment in the USA, and further it was also noted that she had previously earned at a level sufficient to sponsor a foreign national spouse; what I understand is now being suggested is that if the Appellant’s medical condition is such that she is unable to work a full-time job, then her ability to reach the relevant financial target to sponsor her husband to join her in the USA may be compromised. Whether or not that proves to be the case is a matter that will require some careful further consideration at a resumed hearing, supported by relevant evidence.

27. After careful consideration and discussion with the representatives it is my view that the most appropriate forum for remaking the decision in the appeal is the First-tier Tribunal. Although the First-tier Tribunal Judge has made a careful analysis of the evidence and has made primary findings of fact which are not directly the subject of challenge by either party, the Judge has from those primary findings of fact made an evaluative judgment on the issue of insurmountable obstacles. Mr Khan whilst of course in the main seeking to uphold the outcome of the appeal before the First-tier Tribunal, has nonetheless in written submissions presented to the Upper Tribunal made observations and criticisms of some of the evaluations in respect of insurmountable obstacles in paragraph 12 and the first part of paragraph 13. In the event that new evidence is to be filed in these proceedings which may result in further examination-in-chief and cross-examination of the Appellant and her husband, it may readily be apparent that the ability to keep discreet those new matters and any previous matters - be they findings of primary fact or evaluative judgments made by the First-tier Tribunal Judge - will become extremely difficult. In those circumstances it seems to me that the decision in the appeal should be remade before the First-tier Tribunal with all issues at large.

28. I do not propose to issue any specific directions. Standard directions will suffice, and it is of course incumbent upon the Appellant and her advisors to file and serve any additional evidence - whether that be by way of supporting materials or witness statements - within a timetable to be determined in due course by reference to the date of the new substantive hearing.

Notice of Decision
29. The decision of the First-tier Tribunal contained a material error of law and is set aside.

30. The decision in the appeal is to be remade before the First-tier Tribunal, by any Judge other than First-tier Tribunal Judge S Taylor, with all issues at large.

31. No anonymity direction is sought or made.

The above represents a corrected transcript of ex tempore reasons given at the conclusion of the hearing.

Signed: Date: 27 April 2017

Deputy Upper Tribunal Judge I A Lewis