Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30787/2015

THE IMMIGRATION ACTS

Heard in Manchester
Determination & Reasons Promulgated
On 30 March 2017
On 25 April 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MR LUBILO SAMUEL SIMUYANDI
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Moksud, Counsel instructed by First Global Immigration
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. There is no good reason to make an anonymity direction in this case.

DECISION AND REASONS
Background
1. The Appellant appeals against the decision of First-tier Tribunal Judge Smith promulgated on 29 June 2016 (“the Decision”). By the Decision the Judge dismissed the Appellant's appeal against the Respondent's decision dated 26 August 2015 refusing his application for leave to remain on human rights grounds on the basis of his relationship with a British citizen partner.
2. The facts of the Appellant’s case are not in dispute. He is a national of Zambia. The Appellant entered the UK with leave as a student on 18 January 2006 which leave was extended to 28 February 2009. Thereafter he overstayed. He entered into a relationship with his partner (“NB”) in 2011. At the time of the Decision, they had been in a relationship and living together for five years. She works in the UK but her earnings are insufficient to meet the income threshold under Appendix FM of the Immigration Rules (“the Rules”). She is a British citizen who was born and brought up in the UK. All her family are in the UK. They are a close family. She has never lived outside the UK and speaks no language other than English.
3. Neither is it in dispute though that the Appellant cannot meet Appendix FM of the Rules at least not under the five years’ route. As I have already noted, his partner does not earn enough to meet the income threshold requirements. He would in any event be unable to meet those requirements as he was in the UK unlawfully when he made the application to remain (on 3 February 2015). There is though no dispute that the relationship between the Appellant and NB is a genuine and subsisting relationship. The Appellant does not fall foul of the suitability requirements under the Rules. The Appellant therefore pursued his appeal on three bases. First, he argued that he should succeed under the ten years’ route in the Rules because there would be insurmountable obstacles to the couple continuing their family life in Zambia (and therefore that he could meet paragraph EX.1). Second, he said that there would be very significant obstacles to him continuing his private life in Zambia because he has lived in the UK for more than ten years (at the date of the appeal). Third, the Appellant submitted that, if he could not succeed under the Rules, he should succeed outside the Rules on the basis that the Respondent’s decision is disproportionate.
4. In relation to whether there would be very significant obstacles to the Appellant returning to Zambia to live, the Judge found against the Appellant as he has family in Zambia with whom he maintains contact and he would be able to find employment there. That finding is not challenged in the grounds seeking permission to appeal. The Appellant challenges the Decision on the basis that the Judge has failed to properly consider whether the Appellant can meet Appendix FM (under the ten years’ route) and when considering the case outside the Rules.
5. Permission to appeal was granted by Deputy Upper Tribunal Judge Mailer on 21 November 2016 in the following terms:-

“1. It is arguable that the applicant meets the provisions of limited leave to remain as a partner under R-LTRP of Appendix FM of the Rules and that the First-tier Tribunal should have addressed the provisions.
2. While I do not consider that the remaining grounds have much merit I do not refuse permission and they can be argued.
3. Permission to appeal is granted.”

6. The appeal comes before me to determine whether there is an error of law in the Decision and if so to either re-make the decision or remit to the First-tier Tribunal to do so.

7. One further preliminary matter arises as I was informed at the outset of the hearing that NB has given birth to a daughter on 7 March 2017. Mr Moksud accepted that the fact of NB’s pregnancy was not raised before the Judge; given the timing it is probable that the Appellant and NB were not aware of it at that time. He accepted therefore that, unless I find an error of law, it is not an issue which I can consider. It is though of course something which the Appellant could and should raise with the Respondent (although of course the Appellant’s unlawful status in the UK may remain relevant to the success or otherwise of an application on that basis from within the UK).
Discussion and conclusions
8. The relevant paragraph of the requirements in Appendix FM are as follows:-

“Section R-LTRP: Requirements for limited leave to remain as a partner
R-LTRP.1.1. The requirements to be met for limited leave to remain as a partner are-
(a) the applicant and their partner must be in the UK;
(b) the applicant must have made a valid application for limited or indefinite leave to remain as a partner; and either
(c)
(i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
(ii) the applicant meets all of the requirements of Section E-LTRP: Eligibility for leave to remain as a partner; or
(d)
(i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
(ii) the applicant meets the requirements of paragraphs E-LTRP.1.2-1.12. and E-LTRP.2.1-2.2.; and
(iii) paragraph EX.1. applies.
Section E-LTRP: Eligibility for limited leave to remain as a partner
E-LTRP.1.1. To qualify for limited leave to remain as a partner all of the requirements of paragraphs E-LTRP.1.2. to 4.2. must be met.
Relationship requirements
E-LTRP.1.2. The applicant’s partner must be-
(a) a British Citizen in the UK;
(b) present and settled in the UK; or
(c) in the UK with refugee leave or as a person with humanitarian protection.
E-LTRP.1.3. The applicant must be aged 18 or over at the date of application.
E-LTRP.1.4. The partner must be aged 18 or over at the date of application.
E-LTRP.1.5. The applicant and their partner must not be within the prohibited degree of relationship.
E-LTRP.1.6. The applicant and their partner must have met in person.
E-LTRP.1.7. The relationship between the applicant and their partner must be genuine and subsisting.
E-LTRP.1.8. If the applicant and partner are married or in a civil partnership it must be a valid marriage or civil partnership, as specified.
E-LTRP.1.9. Any previous relationship of the applicant or their partner must have broken down permanently, unless it is a relationship which falls within paragraph 278(i) of these Rules.
E-LTRP.1.10. The applicant and their partner must intend to live together permanently in the UK and, in any application for further leave to remain as a partner (except where the applicant is in the UK as a fiancé(e) or proposed civil partner) and in any application for indefinite leave to remain as a partner, the applicant must provide evidence that, since entry clearance as a partner was granted under paragraph D-ECP1.1. or since the last grant of limited leave to remain as a partner, the applicant and their partner have lived together in the UK or there is good reason, consistent with a continuing intention to live together permanently in the UK, for any period in which they have not done so.
E-LTRP.1.11. If the applicant is in the UK with leave as a fiancé(e) or proposed civil partner and the marriage or civil partnership did not take place during that period of leave, there must be good reason why and evidence that it will take place within the next 6 months.
E-LTRP.1.12. The applicant’s partner cannot be the applicant’s fiancé(e) or proposed civil partner, unless the applicant was granted entry clearance as that person’s fiancé(e) or proposed civil partner.
Immigration status requirements
E-LTRP.2.1. The applicant must not be in the UK-
(a) as a visitor; or
(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings
E-LTRP.2.2. The applicant must not be in the UK –
(a) on temporary admission or temporary release, unless:
(i) the Secretary of State is satisfied that the applicant arrived in the UK more than 6 months prior to the date of application; and
(ii) paragraph EX.1. applies; or
(b) in breach of immigration laws (except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded), unless paragraph EX.1. applies.”
[my emphasis]
9. Mr Moksud’s primary submission was that the Judge failed to consider whether the Appellant could meet the ten years’ route under Appendix FM. He accepted that the Appellant cannot meet the five years’ route because the financial requirements could not be met. His ground one though is that the ten years’ route contains no financial requirements and no English language requirements (although the Appellant does speak English in any event). Perhaps of greater importance in the Appellant’s case is that this route does not require him to be lawfully in the UK at the date of the application. As my emphasis of the relevant sections above is intended to show though, the Appellant could not meet Appendix FM unless paragraph EX.1 applies.
10. At the date of the application (and indeed the date of the appeal) the Appellant did not have a child in the UK. The relevant part of paragraph EX.1 is therefore in the following terms:-

EX.1. This paragraph applies if
(a)…..
or
(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.
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 applicant or their partner.”
11. In light of his submission and the analysis of the Rules as above, I drew Mr Moksud’s attention to [15] of the Decision which reads as follows:-
“[15] I accept that the appellant is in a genuine subsisting relationship with a partner who is a British citizen. The issue is pursuant to paragraph EX.1 “are there insurmountable obstacles to family life with that partner continuing outside the United Kingdom”? “Insurmountable obstacles” is further defined in paragraph EX.2 which means “the very significant difficulties which would be faced by the applicant or their partner continuing their family life together outside the United Kingdom which could not be overcome or would entail very serious hardship for the applicant or their partner.” I accept that NB has a close relationship with her family and siblings. There is nothing unusual about the closeness of that relationship. It is the normal loving relationship between a young adult and her siblings and other family members. It is plain that she is settled in the United Kingdom. She has lived here all her life. She is a hard worker as evidenced by the letter from her manager at McDonald’s. In due course it would seem that she has every prospect of continuing to work at McDonald’s and possibly obtain further promotion in due course. There are no reasons why the appellant would face any difficulties in returning to Zambia (and I will deal specifically with that point below). NB is young and in good health. If she goes to Zambia she will be going with her partner, the appellant, who will assist in familiarising herself with the country. She will meet the appellant’s relations. She speaks English which is widely spoken in Zambia. The appellant has every prospect of obtaining employment in a country with which he is familiar and will be able to provide for NB. In due course as she adapts to the country she may find employment of a similar status to that which she has performed in the United Kingdom. I can understand that it may be her preference if given free choice to continue living in the United Kingdom with the appellant. I am satisfied that any unfamiliarity with Zambia will be overcome and there is nothing in this case that would amount to “very significant difficulties which would entail very serious hardship for the applicant or NB” should they go to Zambia. The question as to whether she does go to Zambia or not is a matter for her. I am not satisfied that paragraph EX.1 applies.”
12. In light of that paragraph which is clearly addressed to the issue whether the Appellant can meet the ten years’ route under Appendix FM, applying paragraph EX.1 as required, I asked Mr Moksud to explain what error of law was made by the Judge in that paragraph. He noted that the Respondent was not represented before the First-tier Tribunal and appeared to suggest therefore that there was no reason for the Judge to reject the Appellant’s and NB’s evidence. However, the Judge has not rejected their evidence. As I pointed out to Mr Moksud, [14] of the Decision sets out the facts not in dispute. In light of that paragraph, I again asked Mr Moksud to explain what the Judge had left out of account. Other than making reference to the Appellant’s length of residence and that he had been here lawfully for a period at the outset albeit as a student, Mr Moksud was unable to point to any evidence which was not there considered. As to the Appellant’s length of residence and status that is set out at [4] of the Decision and the Judge was clearly aware of it. Further, that was considered at [17] of the Decision when dealing with the issue of whether the Appellant faces “very significant obstacles” to integration in Zambia, a factor which is expressly taken into account in [15] of the Decision.
13. The Decision is challenged by the Appellant’s ground [4] on the basis that the Judge did not consider the following:-

“1. The ability to lawfully enter and stay in Zambia;
2. Cultural and religious barriers;
3. Whether the Appellant’s partner would face hardship to the extent that the degree of hardship which would be experienced by the person would be unreasonable to the extent that it amounts to an insurmountable obstacle”
14. As to [1] and [2], the Appellant’s submissions as recorded at [12] of the Decision do show that any such submission was made nor did Mr Moksud direct my attention to any evidence which was before the Judge on that issue. In any event, as the Appellant’s partner, there is no reason to believe that the Zambian authorities would deny entry to NB. The Judge dealt to an extent with the cultural issues of NB adapting to life in Zambia but pointed out that she would have the assistance of both the Appellant and his family there to accustom her to her new surroundings. It is not said what religious barriers exist. As to [3], that was precisely the exercise which the Judge was conducting at [15] of the Decision.
15. The Appellant’s secondary ground is that the Appellant’s appeal should have been allowed under Article 8 ECHR on the basis that the Respondent’s decision refusing leave was disproportionate. It may be questionable in this case whether the Judge needed to consider the case outside the Rules because, as is apparent from [19] of the Decision, the exercise he there conducted is in parallel to that conducted at [15] and [16] of the Decision. However, since the Judge did consider proportionality, I asked Mr Moksud to explain what error of law was made by the Judge at [19] of the Decision where he said this:-
“[19] In considering whether the decision to refuse leave to remain is a proportionate decision I have given due weight to the factors set out in 117B of the Nationality, Immigration and Asylum Act 2002. The appellant speaks English. Although the financial requirements of the rules are not met because NB’s income falls below the £18,600 requirement she is in a secure employment earning approximately £17,200 per annum. She is currently maintaining the appellant without recourse to public funds in suitable accommodation. Section 117B makes it clear that the maintenance of immigration control is in the public interest. I am specifically directed by section 117B(4) to give little weight to a relationship with a qualifying partner that is established by an appellant at a time when he is in the United Kingdom unlawfully. The appellant was in the United Kingdom unlawfully at the time the relationship commenced. NB accepts that there came a time early in the relationship when she was aware of the appellant’s status as an overstayer. I am satisfied that the appellant and NB entered into this relationship aware of the potential consequence that in due course the appellant may be required to leave the United Kingdom. Taking into account all the circumstances I am satisfied that the decision to refuse entry clearance [sic] in this case is a proportionate decision and therefore a lawful decision that gives proper weight to all the factors in the case including those that I have set out above. The decision to remove would not necessarily terminate the relationship between the appellant and NB. She can choose, if she wishes, to follow the appellant to Zambia. If she chooses not to do that then they can maintain contact with each other by letter, telephone and social media. In due course it may well be the case that the appellant can meet the requirements of the Immigration Rules and make application to rejoin NB in the United Kingdom.”
16. In response, Mr Moksud pointed to the reference to “entry clearance” which is clearly incorrect as this was an in-country application. Whilst that is an error, it is not material. Indeed, the Judge recognises in the very next sentence that the decision is one to remove. Perhaps associated with this submission, Mr Moksud appeared to suggest that the Appellant could not return to Zambia to get entry clearance as those advising the Appellant had experience of similar cases being refused. As an aside, since it is not relevant to the case as it currently stands, that may be so but that does not make it unreasonable to require the Appellant to return to his home country to make an application properly within the Rules.
17. Mr Moksud also suggested that the Judge had given insufficient weight to both the Appellant’s relationship with NB and his length of residence. However, section 117B requires the Judge to give “little weight” to those matters because the Appellant has been in the UK unlawfully including at the time when he entered into the relationship with NB.
18. The Supreme Court had cause to consider the relevant provisions outside and under the Rules arising in a case such as that of the Appellant in the recent judgment in Agyarko and Ikuja v Secretary of State for the Home Department [2017] UKSC 11. I set out below the paragraphs of that judgment which explain the relevant legal issues which arise:-
“[45] By virtue of paragraph EX.1(b), “insurmountable obstacles” are treated as a requirement for the grant of leave under the Rules in cases to which that paragraph applies. Accordingly, interpreting the expression in the same sense as in the Strasbourg case law, leave to remain would not normally be granted in cases where an applicant for leave to remain under the partner route was in the UK in breach of immigration laws, unless the applicant or their partner would face very serious difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship. Even in a case where such difficulties do not exist, however, leave to remain can nevertheless be granted outside the Rules in “exceptional circumstances”, in accordance with the Instructions: that is to say, in “circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate”. Is that situation compatible with article 8?
[46] In considering that question, it is important to appreciate that the Rules are not simply the product of legal analysis: they are not intended to be a summary of the Strasbourg case law on article 8. As was explained at para 10 above, they are statements of the practice to be followed, which are approved by Parliament, and are based on the Secretary of State’s policy as to how individual rights under article 8 should be balanced against the competing public interests. They are designed to operate on the basis that decisions taken in accordance with them are compatible with article 8 in all but exceptional cases. The Secretary of State is in principle entitled to have a policy of the kind which underpins the Rules. Whilst the European court has provided guidance as to factors which should be taken into account, it has acknowledged that the weight to be attached to the competing considerations, in striking a fair balance, falls within the margin of appreciation of the national authorities, subject to supervision at the European leave. The margin of appreciation of national authorities is not unlimited, but it is nevertheless real and important. Immigration is an intensely political issue, on which differing views are held within the contracting states and as between those states. The ECHR has therefore to be applied in a manner which is capable of accommodating different approaches, within limits. Under the constitutional arrangements existing within the UK, the courts can review the compatibility of decision-making in relation to immigration with the Convention rights, but the authorities responsible for determining policy in relation to immigration, within the limits of the national margin of appreciation are the Secretary of State and Parliament.
[47] The Rules therefore reflect the responsible Minister’s assessment, at a general level, of the relative weight of the competing factors when striking a fair balance under article 8. The courts can review that general assessment in the event that the decision-making process is challenged as being incompatible with Convention rights or based on an erroneous understanding of the law, but they have to bear in mind the Secretary of State’s constitutional responsibility for policy in this area, and the endorsement of the Rules by Parliament. It is also the function of the courts to consider individual cases which come before them on appeal or by way of judicial review and that will require them to consider how the balance is struck in individual cases. In doing so, they have to take the Secretary of State’s policy into account and to attach considerable weight to it at a general level, as well as considering all the factors which are relevant to the particular case. This was explained in Hesham Ali at paras 44-46, 50 and 53.
[48] The Secretary of State’s view that the public interest in the removal of persons who are in the UK in breach of immigration laws is, in all but exceptional circumstances, sufficiently compelling to outweigh the individual’s interest in family life with a partner in the UK, unless there are insurmountable obstacles to family life with that partner continuing outside the UK, is challenged in these proceedings as being too stringent to be compatible with article 8. It is argued that the Secretary of State has treated “insurmountable obstacles” as a test applicable to persons in the UK in breach of immigration laws, whereas the European court treats it as a relevant factor in relation to non-settled migrants. That is true, but it does not mean that the Secretary of State’s test is incompatible with article 8. As has been explained, the Rules are not a summary of the European court’s case law, but a statement of the Secretary of State’s policy. That policy is qualified by the scope allowed for leave to remain to be granted outside the Rules. If the applicant or his or her partner would face very significant difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship, then the “insurmountable obstacles” test will be met, and leave will be granted under the Rules. If that test is not met, but the refusal of the application would result in unjustifiably harsh consequences, such that refusal would not be proportionate, then leave will be granted outside the Rules on the basis that there are “exceptional circumstances”. In the absence of either “insurmountable obstacles” or “exceptional circumstances” as defined, however, it is not apparent why it should be incompatible with article 8. That is not, of course, to say that decisions applying the Rules and Instructions in individual cases will necessarily be compatible with article 8: that is a question which, if a decision is challenged, must be determined independently by the court or tribunal in the light of the particular circumstances of each case.”
19. As explained by the Supreme Court, it is for the Judge assessing the facts and evidence before him to consider whether those thresholds are met. In so doing, he is obliged to have regard to the Secretary of State’s policy as set out in the Rules and section 117B of the 2002 Act. What the Judge is required to do is balance the individual’s rights and interests against the wider public interest which includes the maintenance of immigration control. It is that public interest which leads to the individual’s rights and interests being given lesser weight than might otherwise be the case where that individual is in the UK unlawfully.
20. The issue for me is whether the Judge has made an error of law. Mr Moksud was unable to point me to any facts or evidence which the Judge left out of account. The Judge has directed himself in accordance with the relevant legislation and has carried out a careful balance of the rights of the Appellant and NB with the wider public interest. He has provided detailed reasons explaining why the relevant thresholds are not met and why the case fails outside the Rules. The Decision is not irrational; indeed, on these facts and the evidence as at the date of the hearing before the Judge I would have reached the same conclusion.
21. The Appellant’s grounds amount to nothing more than a disagreement with the outcome of the appeal and the Judge’s findings. They do not disclose an error of law. I therefore maintain the Decision.

DECISION

The First-tier Tribunal Decision did not involve the making of an error on a point of law. I therefore uphold the First-tier Tribunal Decision of Judge Smith promulgated on 29 June 2016 with the consequence that the Appellant’s appeal is dismissed.

Signed Dated: 24 April 2017

Upper Tribunal Judge Smith