Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30078/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1st March 2017
On 8th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Jahangir Khan Abbasi
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: Ms K Reid, Counsel, instructed by Maxim Solicitors

DECISION AND REASONS
1. Although the Secretary of State is the Appellant in these proceedings I refer to the parties as they were in the First-tier Tribunal.
2. The Appellant, a national of Pakistan, appealed to the First-tier Tribunal against a decision of the Secretary of State of 21st August 2015 to refuse his application for leave to remain as the spouse of a British citizen. First-tier Tribunal Judge Nicholls allowed the appeal on human rights grounds and the Secretary of State now appeals with permission to this Tribunal.
3. The background to this appeal is that the Appellant entered the UK on 15 May 2011 with entry clearance as a student. He made an application for further leave to remain on 31 August 2013 but the application was refused and the appeal against that decision was dismissed in July 2014. His applications for permission to appeal to the Upper Tribunal were refused. On 24 December he applied for leave to remain as the souse of a British citizen. The basis of that application was his marriage to Ms Jyoti Singh, a naturalised British citizen born in India. She had been in the UK since April 2007and has two children, both British citizens. Her husband, the father of the children, died on 25 June 2011. She met the Appellant in January 2012 and they married in a civil ceremony on 20 May 2014.
4. In the reasons for refusal the Secretary of State considered the Appellant’s application under Appendix FM. The Secretary of State decided that the Appellant failed to meet paragraph S-LTR.2.2, which provides that an application will normally be refused on grounds of appeal of suitability where, whether or not to the applicant’s knowledge false documents have been submitted in relation to the application. This was because, in his application of 31st August 2013 for leave to remain as a Tier 4 Student, the Appellant submitted a TOEIC certificate from Educational Testing Service (ETS). The Secretary of State considered that that certificate had been fraudulently obtained and that therefore the Appellant had used deception in his application of 31st August 2013.
5. The Secretary of State also considered EX.1 of Appendix FM and decided that there were no insurmountable obstacles preventing the Appellant and his wife living in Pakistan. The Secretary of State also considered the parent route under Appendix FM but decided that the Appellant did not have sole responsibility for his wife’s children. In considering exceptional circumstances the Secretary of State noted that the Appellant’s wife has two children who are British citizens but considered that there were no exceptional circumstances in the case.
6. In dealing with the appeal the First-tier Tribunal Judge considered the evidence in relation to the ETS English language test certificate and concluded on the basis of all of the evidence that there are sufficient questions about the Appellant’s motives to show that, when he submitted the ETS certificate with his application for further leave to remain as a student, he was acting dishonestly and that therefore the Appellant did not meet the suitability requirements of Appendix FM. There is no challenge to this finding.
7. The judge then went on to consider the best interests of the Appellant’s wife’s children, who at the date of the decision were aged 8 and 6½. The children’s natural father died suddenly in 2011. The Appellant met his wife in January 2012 and they married in an Islamic ceremony on 26th January 2014 and began to live together then. The judge accepted the evidence that the Appellant has been a substantial presence in the children’s life for as long as they are likely to remember. The judge noted that the children have been British citizens from birth and have always lived in the UK.
8. The judge accepted the Appellant’s wife’s evidence that she would not be willing to accompany the Appellant if he were removed to Pakistan. The judge found that the Appellant has fulfilled the role of the parent jointly with his wife as though he were the children’s natural father. The judge found that it would not be reasonable to expect the two children to be removed to live in Pakistan, a country with which they have no connections and no entitlement to settle. The judge accepted that the children are both of an Indian Sikh heritage and that people with such a background are not welcome in Pakistan. The judge concluded that the best interests of the children are to remain in the UK with their mother and with the Appellant as a family unit where they can live in accordance with their entitlement both as British citizens and as European Union citizens. The judge accepted evidence from the Appellant and his wife that they would be rejected by their respective families on the grounds of nationality on the basis that that evidence was consistent with each other and with available background evidence. The judge accepted that there would be very significant difficulties in the Appellant and his wife establishing a safe and secure family unit in any part of Pakistan.
9. The judge considered the appeal under Article 8 and found that the removal of the Appellant from the UK would be a substantial interference with his Article 8 rights and those of his wife and two stepchildren. At paragraph 23 the judge noted that “the weight to be given to immigration control is substantial”. He went on to say:
“The Appellant entered the UK lawfully and although his leave to remain formally expired on 2nd September 2013, the only transgression against immigration law has been in respect of the submission of the false ETS certificate.” [23]
10. The judge went on to say at paragraph 24 that on the other side of the scales are the family life issues and the best interests of the children. The judge said that the circumstances in this appeal are unusual because they include a mixed race marriage between and Indian and Pakistani. The judge gave considerable weight to the circumstances of the very young children because of the sudden death of their father in 2011 and the role that the Appellant is playing as that father. The judge accepted that the damage to the relationship which would be caused by the removal of the Appellant back to Pakistan is considerable. Again, the judge said:
“[The Appellant’s] use of a false certificate adds weight to the public interest in the control of immigration but having regard to the overall circumstances and the single circumstance where a breach of immigration laws has occurred, I find that on the particular facts of this case with the exceptional and compelling circumstances I have identified, the private and family life of the Appellant is sufficient to outweigh the considerable public interest in the control of immigration”,
The judge allowed the appeal on human rights grounds.
11. The Secretary of State argues in her Grounds of Appeal that the judge misdirected himself in law by stating at paragraph 23 that the only transgression against immigration law has been in respect of the submission of the false ETS certificate. It was submitted that the Tribunal is ambiguous in its approach to this point in indicating that the deliberate abuse of the Immigration Rules is a minor point. Here the Secretary of State refers to the use of the word “only” and that a single transgression is somehow permissible or at the very least of little significance. It is contended that this was wrong as it fails to take into account the intended consequences of the Appellant’s intentions, he was prepared to use deception to prolong his residence in the UK and therefore by implication he has failed to integrate into UK society by learning to communicate effectively and was prepared to base his whole residence in the UK on a fraud.
12. Alternatively it is contended that the Tribunal found that it is in the public interest to allow someone to remain in the UK when five years’ residence was not sufficient for him to meet the requirements of the Rules and that acts of deception are not considered significant. It is further contended that the assessment of proportionality at paragraph 24 is unbalanced because, whilst the Tribunal has had some regard to the use of false documents, it has no regard to the relevance of the Appellant’s character and the development of the children given that the Appellant is someone who has been found to be someone who is deceptive and has disregarded the law.
13. At the hearing before me Mr Bramble submitted that the judge made a clear finding that deception aspect had been established in relation to the ETS matter. He submitted that looking at the issues in the round this is a weighty matter and should have been given more weight by the judge. He submitted that the judge erred in saying that this matter was the Appellant’s only transgression given that it is a significant issue. He accepted that this was the sole negative immigration issue but contended that it was not properly assessed and that sufficient weight had not been given to this factor.
14. Ms Reid relied on her Rule 24 response. She submitted that it was artificial to take one turn of phrase out of the entire decision. She submitted that in the grounds the Secretary of State emphasised the use of the word “only” in paragraph 23 whereas that had not been emphasised in the judge’s decision. The judge did attach substantial weight to this factor. In her submission the judge correctly approached this issue, setting out the factors against the Appellant and weighing in the scales on the other side the factors that are positive in relation to the Appellant. The judge looked at all the factors properly and the conclusions were reasonably open to him.
Error of Law
15. In his decision the judge made a clear finding that it had been established that the Appellant had acted dishonestly in relation to the ETS certificate. The judge assessed the best interests of the children and found that it was in their best interests to be with the Appellant and their mother and that it was not reasonable to expect them to be removed to Pakistan. The judge made clear findings in relation to the difficulties of the family establishing a safe and secure family unit in any part of Pakistan. It is clear from paragraph 23 that the judge said that the weight to be given to immigration control is substantial.
16. I accept Ms Reid’s submission that the use of the word “only” in paragraph 23 does not serve to minimise the Appellant’s transgression but simply points out that there was one transgression. The Secretary of State’s submission in the Grounds of Appeal places an emphasis on the word “only” that is not there on a reading of that paragraph. It is clear that again in paragraph 24 the judge recognises that the Appellant’s use of a false certificate adds weight to the public interest in the control of immigration. So it was clear that the judge takes this into account as a significant factor against the Appellant. It is up to the judge what weight to give this matter.
17. It is clear, reading paragraph 24, that the judge gives considerable weight to the circumstances of the children and to the family life and the judge clearly states that in the particular facts of this case the Appellant’s private and family life outweighs the considerable public interest.
18. There is no allegation that the judge failed to take any evidence into account. The Secretary of State’s disagreement is with the weight accorded to the public interest in this case. However, having taken all of the evidence into account, it is up to the judge what weight to attach to the various factors considered in the proportionality assessment. The judge has clearly attached significant weight to the submission of a false document and the public interest in immigration control but has decided that the other factors in this case outweigh that matter.
19. In my view it is clear that this is a decision that was open to the judge on the basis of the evidence before him and the Grounds of Appeal disclose no material error of law.
Notice of Decision
There is no material error of law in the decision of the First-tier Tribunal. The decision of the First-tier Tribunal shall stand.

No anonymity order is made.

Signed Date: 5 March 2017

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

I maintain the fee award made by the First-tier Tribunal.

Signed Date: 5 March 2017

Deputy Upper Tribunal Judge Grimes