Tribunal decisions

The decision

IAC-AH-dh-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29378/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 November 2016
On 13 December 2016

Before

UPPER TRIBUNAL JUDGE REEDS

Between

delwar hussain
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Musquit, Counsel instructed on behalf of the Appellant
For the Respondent: Ms Z Ahmad, Senior Presenting Officer

DECISION AND REASONS
1. The Appellant, with permission appeals against the decision of the First-tier Tribunal (Judge Baldwin) who, in a determination promulgated on 23rd June 2016 dismissed his appeal against the decision of the Secretary of State made on 19th August 2015 to refuse to grant leave to remain on Article 8 grounds.
2. There has been no application made or any grounds provided for any anonymity direction.
3. The Appellant's immigration history can be summarised as follows. The Appellant is a citizen of Bangladesh. The witness statements and history demonstrates that the parties had originally met in Bangladesh in 2009 and that they had travelled together to France and stayed there until she returned to the United Kingdom. The Appellant remained in France and maintained a relationship between himself and his future wife between September 2011 and February 2012 by way of telephone and modern methods of communication. The Appellant then entered the UK unlawfully in February 2012 and the following month in March married they were in an Islamic marriage.
4. On 1st October 2012 he made an application outside of the Rules and in January 2013 was encountered working illegally in the UK and was served with an IS15A document. In June 2013 he married his wife in a civil ceremony. As a result a further application was made outside of the Rules but that application was voided. The application that had been made on 1st October 2012 was then refused in a notice of decision dated 13th August 2013 with no right of appeal. It appears that a judicial review application was lodged which was later withdrawn in 2014 and on 13th July 2015 further representations were received and the decision made to refuse leave to remain was reconsidered.
5. The basis of the application as set out in the decision letter was based on the Appellant's private and family life with his wife, who is a British citizen and in the light of her personal circumstances that she had a number of significant care needs and was in receipt of disability benefit.
6. In a decision made on 19th August 2015 the Secretary of State refused the application. The Secretary of State first of all considered the application under the "old Rules" under Article 8 having accepted the Appellant's degree of private life that had been established since 2012 and also on the basis of family life in that it was accepted that the Appellant and his spouse had a genuine and subsisting relationship. It was considered that there would be no insurmountable obstacles or any issues raised to preclude his wife from travelling with him to Bangladesh where he had met her and where she had been born. The Secretary of State took into account the precariousness of the relationship and when it was formed and the Appellant's lack of immigration status.
7. The application was also considered under the Rules. As to the partner route, again it was accepted there was a genuine and subsisting relationship and therefore applied EX.1. It was not accepted that there were any insurmountable obstacles to family life continuing outside of the UK noting that both the Appellant and his wife were from Bangladesh, both were born in Sylheti, that she was aware of the language, life and culture and that there was treatment available for his wife's condition based on the objective material before the Secretary of State and that she had family relatives in Bangladesh as did the Appellant. As to private life under paragraph 276ADE, the Appellant had entered in 2012 and therefore had not had twenty years' continuing residence nor could he demonstrate that there were very significant obstacles based on the short period of residence, and that he had spent the majority of life in Bangladesh where he was familiar with the language and the culture and had close family relatives residing there.
8. The decision letter also made reference to whether there were any circumstances to justify a grant of leave outside of the Rules. Over a period of two pages, the Secretary of State considered the circumstances of the Appellant's wife including the circumstances of her adult children. The decision letter considered the medical evidence that had been presented in 2015 but that there was objective material to demonstrate that such medical evidence including the medication required was available in Bangladesh and thus family life could take place in Bangladesh with the Appellant. The public interest factors were considered noting that the Appellant had entered illegally and had lived in the UK with no legal basis to remain and that his spouse was aware of that lack of immigration status and that he would be liable to removal at any time. The decision letter also took into account their circumstances and how they met and how they had travelled to France together and that there had been a period of time in which their relationship had been maintained by telephone and that this could also take place if the Appellant were to return to Bangladesh. Thus the application was refused.
9. The Appellant exercised his right to appeal that decision and the appeal came before the First-tier Tribunal (Judge Baldwin). In the determination promulgated on 23rd June 2016 the judge considered the application both under Appendix FM EX.1 under the Rules and 276ADE (private life) but found that the Appellant could not meet the Rules and that there were no insurmountable obstacles to family life being conducted in Bangladesh. It had also considered the application outside of the Rules and expressly took into account the medical circumstances of the Appellant's wife but when balancing the findings of fact made in the light of the public interest matters under Section 117, reached the conclusion that the Appellant's removal to Bangladesh would not be disproportionate.
10. The Appellant sought permission to appeal and permission was granted on 8th October 2016.
11. Thus the appeal came before the Upper Tribunal. Mr Musquit appeared on behalf of the Appellant and Ms Ahmad, appeared on behalf of the Secretary of State. I heard submissions from each of the parties which had been recorded in my Record of Proceedings and I shall deal with those submissions when setting out my conclusions on whether or not an error of law has been made in the decision of the First-tier Tribunal.
12. In his submissions Mr Musquit on behalf of the Appellant stated that Judge Page, when granting permission to appeal, had misunderstood the grounds and in particular the point relating to the detail of the medical evidence. He therefore submitted that whilst the judge had granted permission on a point that was not raised, there were properly arguable grounds set out in the written material. They were, he submitted, that the judge had made inadequate findings on the issue of "insurmountable obstacles" (Ground 1) and that in relation to Ground 2 that the judge had failed to make findings when considering Article 8 outside of the Rules as to the reasonableness or otherwise of family life taking place outside of the UK in Bangladesh. For the sake of completeness, he submitted that he did not rely on the written grounds where it was asserted that the judge failed to consider family life with the adult children of the Appellant's spouse.
13. I shall therefore deal with the two grounds advanced on behalf of the Appellant. Dealing with Ground 1, Mr Musquit submits that the judge had not properly considered the Appellant's claim within the Rules and in particular EX.1. He submitted that the judge's findings on this aspect of the appeal were inadequate and that the judge had failed to consider the threshold required for insurmountable obstacles had to be established.
14. He referred the Tribunal to the guidance and that the judge failed to consider that there was "very severe hardship" and failed to analyse the issue of insurmountable obstacles and whether accessing treatment would be of a particular hardship in the context of the cost of treatment and the ability of the Appellant's wife to afford treatment. He submitted that this was a factor that the judge had ignored.
15. By way of reply Ms Ahmad submitted that the judge properly considered the matters set out in the guidance as set out at page 6 and when considering the judge's reasoning at paragraphs 10 and 11 the judge was fully aware of the evidence relating to the Appellant's wife's medical circumstances. She submitted at paragraphs 21 to 23 the judge fully appreciated the issue and that he was entitled to find that there were no insurmountable obstacles based on the failure of the Appellant to produce no evidence that medical treatment was not available in Bangladesh. The judge also found as a fact that the Appellant's wife had close family members in Bangladesh as did the Appellant himself and that she had continuing cultural ties to Bangladesh, a country that she had been born in, spoke the language of compared to English and that she had returned to in recent years. Thus the conclusion that he made under the Rules relating to EX.1 were findings that were both adequate and open to the judge on the evidence.
16. As the Rules set out EX.1 is not a standalone requirement but where it applies it provides an exception to meeting the eligibility requirements.
17. EX.1(b) reads as follows:-
"(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."
Paragraph EX.2 of Appendix FM states that:-
"EX.2 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 appellant or their partner."
18. Mr Musquit has referred the Tribunal to the guidance in which it is said that "insurmountable obstacles" can take two forms, namely a very significant difficulty which would be literally impossible to overcome so it would be impossible for family life with the applicant's partner to continue overseas, for example, because they would not be able to gain entry to the proposed country of return or secondly, a very significant difficulty which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could be overcome but would entail very serious hardship for one or both of them.
19. The guidance goes on to state that "when assessing an application under paragraph EX.1(b) and determining whether there are "insurmountable obstacles", the decision maker should have regard to the individual circumstances of the applicant and their partner, based on all the information that has been provided. The guidance goes on to make reference to the assessment of whether there are "insurmountable obstacles" is a different and more stringent assessment than whether it will be "reasonable to expect" the applicant's partner to join them overseas. Mr Musquit points to the guidance in which it is said "a material change in the quality of the life of the applicant and their partner in the country of return, such as the type of accommodation they would live in, or a reduction in their income, would not usually amount to an insurmountable obstacle.
20. The guidance sets out factors that might be relevant to the consideration of whether an insurmountable obstacle exists but are not limited to the following, ability to lawfully enter and stay in the country, cultural barriers, the impact of mental or physical disability and the security situation in the country of return. In the section entitled the impact of mental and physical disability it states
"Whether or not either party has a mental or physical disability, a move to another country may involve a period of hardship as the person adjusts to their new surroundings. But a physical or mental disability could be such that in some circumstances it could lead to very serious hardship, for example due to lack of healthcare that amounted to an insurmountable obstacle."
In his submissions, Mr Musquit had submitted that the judge had made inadequate findings under the Rules in relation to EX.1 and in particular had failed to consider whether there was "very severe hardship" on the particular facts of this case.
21. The judge's overall findings which deal with the assessment of Article 8 under the Rules and also outside of the Rules are set out at paragraphs 15 to 23 of his decision. There is no dispute raised in the grounds that the Appellant can meet the requirements of the Rules in respect of his private life under paragraph 276ADE and in the light of the short period of residence since his unlawful entry in 2012 and in the light of his continuing family, cultural and language links and ties to Bangladesh. The judge reached that conclusion at [23].
22. As to family life and Appendix FM and the issue relating to EX.1 as set out above, there is also no dispute between the parties that the couple were married and had cohabited for two years and that they were in a genuine and subsisting relationship. It was also accepted that the Appellant's wife had significant medical health needs which the judge made reference to at [8] and [10] where he accurately summarised the letter dated 14th June 2016 for the council and also from the evidence that he saw and heard at [11]. As set out earlier in the determination, there is no suggestion that he did not consider all the medical evidence that there was before the Tribunal and at [21] found that the Appellant's wife suffered from multiple medical conditions and that she had a need to take medication and required significant care.
23. Whilst it is submitted that the judge gave inadequate reasons for reaching the conclusions that there were no insurmountable obstacles to family life being enjoyed in Bangladesh, I do not consider that the ground is made out. In the decision of Shizad (Sufficiency of reasons: set aside) [2013] UKUT, the Tribunal held that the Upper Tribunal would not routinely set aside the decision of a First-tier Tribunal Judge where there is no misdirection in law, that the fact-finding process can be ascertained and unless the conclusions drawn from the primary data were not reasonably open to the judge on the evidence.
24. When applying that decision and reading the determination as a whole, I am satisfied that the judge gave adequate and made reasoned findings that the Appellant and her partner had not demonstrated that there were "insurmountable obstacles" to family life being enjoyed in Bangladesh. Notwithstanding the care needs set out in the documents, the judge made a number of relevant findings that can be ascertained from his determination. The Appellant's wife was a British citizen who had lived in the UK for a significant period of her life. However she still had a limited command of English but was able to speak Sylheti (the language in Bangladesh) like her husband, the judge took into account that the Appellant had met his wife in Bangladesh and that they had travelled to France together notwithstanding her medical condition she had travelled back and forward to the UK and Bangladesh alone. The judge also found that both the Appellant and his spouse had close family members living in Bangladesh who would be able to provide support, help and assistance, the Appellant had his mother and brother and the Appellant's spouse had four brothers.
25. Furthermore and importantly, notwithstanding the medical health needs described in the documents, and accepted by the judge, he found that the Appellant had provided no objective evidence that the medical treatment she required, including the medication that she was taking, would not be available in Bangladesh. The Secretary of State had set out in the decision letter the objective country materials which demonstrated that the medication and treatment that she was receiving would be available in Bangladesh. In addition the judge found that she would have the help and assistance of close family relatives and of course the Appellant, who would be with her in Bangladesh. He also found on the evidence that the Appellant's spouse would be returning to a country where "she was brought up and where the two of them have six members of their immediate family" (see paragraph [23]).
26. Therefore the judge properly took into account the circumstances of the Appellant, and the personal circumstances of the Appellant's spouse, which included her medical needs and their respective connections with their country of relocation, that is Bangladesh, and also if there were any cultural barriers and the matters referred to in the guidance. When those findings are read together the conclusion reached at [23] that their circumstances do not present "insurmountable obstacles to the two of them living in Bangladesh" are adequate and sustainable reasons which were manifestly open to the judge on the evidence.
27. Mr Musquit submits that the judge erred in his approach to the issue of "very significant hardship" bearing in mind that he had made no finding on the cost of the medication or treatment that the Appellant's wife would require. He submitted that the judge had only made a finding that the medical services she would require were available in Bangladesh. However, as the judge recorded there was no objective evidence of any kind advanced on behalf of the Appellant relating to the unavailability of the medical treatment in Bangladesh or even the cost. There was a total lack of evidence in that regard and it cannot properly be said that it was wrong for the judge to fail to consider the cost of medical treatment when no evidence was put before him on this particular issue. The burden is upon the Appellant to establish the factual basis of any case relied upon.
28. In any event, the judge did give some consideration to this issue when considering the Appellant's conduct and his having worked unlawfully in the UK (see paragraphs [21] and [22]). At [21] the judge found that when in Bangladesh he had his own shop and that he had "offered no satisfactory explanation as to why he could not once again secure retail or other work." Thus the judge found that there was a likelihood that he would be able to obtain work and therefore provide for his wife as he had done so in the UK. Whilst Mr Musquit submitted that this was "speculative" I do not agree. It was a finding that was open to the judge to make on the evidence based on the Appellant's conduct both in Bangladesh and in the UK. Furthermore, the judge found that there were close family members in Bangladesh who could provide support and assistance. Consequently I do not consider that Ground 1 is made out for those reasons.
29. Dealing with Ground 2, it is submitted that the judge failed to make a finding on Article 8 outside the Rules and whether it would be reasonable for family life to take place in Bangladesh nor whether it was reasonable for the Appellant's spouse to remain in the UK and for the Appellant to make an application for entry clearance to return. Mr Musquit submits that the issue of reasonableness is a distinct one from that of "insurmountable obstacles" and as such, the judge failed to deal with this and it was a "material omission" in the determination.
30. Ms Ahmad referred to the decision of SS (Congo) [2015] EWCA Civ 387 in which the Court of Appeal made it clear that the Immigration Rules are the main point of assessment under Article 8 and it is only where they do not sufficiently cover the particular circumstances relating to an individual applicant that one might turn to consider whether there are any circumstances that would justify a grant of leave outside the Rules. In this case, the judge found that the Appellant did not meet the requirement of Immigration Rules relating to private life 276ADE and also under Appendix FM there being no insurmountable obstacles. What the Court of Appeal in SS (Congo) said was that it would only be in "compelling circumstances" that an infringement of Article 8 will be found if an Appellant did not otherwise meet the requirements of the Immigration Rules.
31. I would accept that a case might be made out for "compelling circumstances" for a grant of leave under Article 8 outside the Rules even where there are no "insurmountable obstacles" to continuing family life overseas. However it does not mean that the findings made as to "insurmountable obstacles" made earlier in the determination as a whole are not relevant to the issue of Article 8 outside of the Rules. In my judgment it is a material factor to take into account as made plain in the decision of Nagre at [41] and the jurisprudence of the European Court in Rodrigues da Silve and Hoogkamer v the Netherlands at [39] and Jeunneuse v the Netherlands at [107] and [117].
32. At paragraph 39 in the decision of Rodrigues da Silve the European Court of Human Rights explained the approach as follows:-
"The court reiterates that in the context of both positive and negative obligations the state must strike a fair balance between the competing interests of the individual and the community as a whole. However, in both contexts the state enjoys a certain margin of appreciation. Moreover, Article 8 does not entail a general obligation for a state to respect immigrant's choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of the state's obligation to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the contracting state, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (e.g. a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion. Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious. The court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8."
33. Whilst the decision above refers to the requirement of "exceptionality" it is common ground that "compelling circumstances" would be required.
34. Contrary to the grounds the judge did consider the issue of reasonableness in the context of Article 8 outside of the Rules. His overall findings as Ms Ahmad submits are found at [23] in which he states:
"The Appellant does not meet the requirements of the Rules" (relating to 276DE or EX.1 insurmountable obstacles) "... and the life that he has established unlawfully in the UK is not such as would make it disproportionate or unreasonable for him or his wife to expect him not to return to Bangladesh."
The judge's earlier findings on the issue of insurmountable obstacles are required to be factored into the assessment of reasonableness of Article 8 outside of the Rules for the reasons that I have set out earlier. There is no need for me to set out again the findings made by the judge as to the issues of why there were no insurmountable obstacles. In summary, the judge made reference and paid regard and weight to her personal circumstances including her language abilities, her previous links to Bangladesh, her continuing family ties, the period of time that she had spent there, her medical conditions were considered in the light that there was medical treatment and medication available for her and that she will be returning with her spouse.
35. In addition the judge considered and took into account that the Appellant's children were all adults (see [23]) and that there was no objective evidence to show that notwithstanding her medical needs, that she would not receive adequate treatment in Bangladesh.
36. In the alternative, the judge also made findings that when read together demonstrate that he found that it was reasonable for the Appellant to leave the UK and make an application for re-entry by way of entry clearance. At paragraph 23 he concluded as follows:-
"If she would rather remain in the UK than join her husband in Bangladesh, that is her prerogative, and she can support an application by him for re-entry as a spouse if she wishes. This is not a case where no useful purpose would be served by requiring this, not least because it would ensure the Appellant secures a sufficient command of English to be able to prove a level of competence not demonstrated to date. It is important that British citizens and those from abroad understand that immigration laws are not there to be flouted and that those who choose to be party to unlawful acts cannot expect to be given priority over those who go through the proper channels. The Appellant does not meet the requirements of the Rules and the life he has established unlawfully in the UK is not such as would make it disproportionate or unreasonable for him or his wife to expect him now to return to Bangladesh. Absent more persuasive and/or detailed evidence from the Appellant's children than is included in their short letter written over three years ago, I find that there is no reason to believe that between them and those responsible by statute for her care that the Appellant's wife's needs will not be addressed just that they had been before he came to the UK and would have been had he never come here in the first place."
37. The findings to support that conclusion are set out earlier in the determination, namely that she had four adult children in the UK but none had given evidence save for an out of date letter as to the willingness and ability to provide help with her needs. He found that she had one adult son living with her and two living close by (see [21]). Further the judge found at [23] that there was no reason to believe that between the adult children and the state that the Appellant's needs could not be addressed without the Appellant in the UK as had been before he entered in 2012. The medical conditions of the Appellant were not recent but appear to be longstanding. Furthermore, the judge at [21] had found that contrary to the Appellant's account that he had provided 24/7 care, he had in fact been working.
38. The judge also was required to apply the public interest consideration set out at Section 117. In this respect the judge took into account the Appellant's immigration history that he had entered unlawfully and had been caught working unlawfully [20]. He found also that the marriage was entered into in the knowledge that his life in the UK was precarious and that if the marriage was continued to "the fullest extent he might well have to return to make an entry clearance application or she would have to move back to Bangladesh" (see [20]). At [23] the judge took into account that he had a very limited command of English, the parties knew his presence in the UK was precarious and that "they did not ensure it was limited to mere unlawful presence, the Appellant taking work and NH services to which he was not entitled" (see [23]).
39. Consequently, contrary to the grounds the judge did consider whether it was reasonable for family life to take place outside of the UK and with either the Appellant returning to make an application for entry clearance or for the Appellant and his spouse to move to Bangladesh together. This had been the case on the facts that the parties had been living apart between 2011 and February 2012 where they had maintained a relationship using the modern methods of communication.
40. Thus having weighed up all the competing interests (including the Section 117 factors that were relevant) the judge reached an overall balance that removal would not be disproportionate. Whilst I would agree that it would have been preferable for the judge to have set out his determination in a more structured way, the determination must be read as a whole and the primary findings of fact that were made by the judge dealing with the issue of insurmountable obstacles, and the Appellant's immigration history, and the Appellant's wife's medical circumstances were findings that were open to him on the evidence. Whilst every judge might not have reached that conclusion, on the facts as he found them to be, and in the light of the grounds advanced, it has not been demonstrated that the judge made any error of law in his determination to justify the setting aside of the decision.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of an error of law on a point of law and the appeal is dismissed.
No anonymity direction is made.

Signed
Date:10/12/2016
Upper Tribunal Judge Reeds