Tribunal decisions

The decision

UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Appeal No. IA/31814/2014

THE IMMIGRATION ACTS

Heard at: Field House
Decisions & Reasons Promulgated:
On: 6 April 2016
On: 10 November 2016

Before

Deputy Upper Tribunal Judge O'Ryan

Between

HONG FANG
(Anonymity Order Not Made)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Yeo, Counsel, instructed by Coventry Law Centre
For the Respondent: Mr Duffy, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1 This is an appeal by the Appellant against the decision of Judge of the First tier Tribunal Lloyd dated 4 March 2015, dismissing the Appellant's appeal against the Respondent's decision of 4 August 2014 refusing to vary her leave to remain in the UK, and making a decision to remove her under section 47 of the Immigration, Asylum and Nationality Act 2006.
2 The Appellant is a national of China and entered United Kingdom with Tier 4 General Student entry clearance on 22 August 2010, valid until 30 January 2012. Thereafter, she remained in United Kingdom under Tier 1 Post Study Work leave to remain, valid until 1 March 2014. During her period of leave to remain as a student the Appellant entered into a relationship with her partner, Mr Hall.
3 On 22 January 2014, the Appellant made an application for leave to remain under Appendix FM of the immigration rules on the basis of being Mr Hall's partner as defined under GEN.1.2(iv), they having lived together for a period in excess of two years.
4 It is now common ground that Mr Hall meets the definition of partner under Appendix FM; that he is a British citizen; that the Appellant and her partner are in a genuine and subsisting relationship; and that the Appellant does not meet the financial eligibility criteria within appendix FM. It was therefore necessary for the Appellant to seek to assert that she satisfied the requirements of Section Ex of Appendix FM. She additionally sought to rely, outside the rules, on Article 8 ECHR.
5 The Appellant argued before the judge in relation to Section EX that there were insurmountable obstacles to family life with her partner continuing outside the UK. A number of considerations were advanced by the Appellant to support that proposition. At paragraph 20 of the decision, the judge noted as follows:
"... The sponsor states that he would not be able to relocate to China. He has tried learning the Appellants language but it is a notoriously difficult language to learn and he has struggled with it. He tells me that he would not be able to settle in China as an unmarried partner because China's visa rules do not permit such a category. He provides some printouts of information about China's immigration rules and these appear to confirm the same. He states that visits to China under "Category C" would be possible for up to 30 days, extendable to 60 days. He also states that he would not be able to continue his chosen academic interests in China."
6 The judge made the following findings:
"23. Overall I accept that there would be at least some difficulties for the Sponsor to settle in China with the Appellant. He faces language difficulties, unmarried partners do not appear to be recognised for immigration purposes and it is unclear whether he would be able to utilise his academic specialty although I make no finding on the latter point.
24. However, permanent settlement in China is not what is required to be able to enjoy family life in the Appellant's circumstances. She certainly has the option of making a fresh application for entry clearance as soon as they can show that they meet the financial requirements. The tribunal should not indulge in detailed speculation as to whether such an application would succeed, however on the basis of the issues raised in this appeal, there seems to be a good chance that such an application would be successful. Extended visits to China for 30 or 60 days are possible, and I am not given any evidence to suggest that visits to the UK by the Appellant would not be possible. Modern methods of communication also enable regular contact. Further, it is not unusual for young professionals or academics to have to spend time apart whilst they pursue career and training goals and I do not find that such separations would cause very serious hardship.
25. I take all of these circumstances in the round and on balance I do not find EX1 to be satisfied."
7 At paragraphs 26 to 36 of the decision, the judge considered in the alternative whether the Appellant's removal from the United Kingdom would amount to a disproportionate interference with her right to private and family life protected by Article 8 ECHR. The judge dismissed the appeal on this alternate basis.
8 There are two sets of grounds of appeal against the judge's decision, one being prepared by Counsel dated 16 March 2015, and the other seemingly by Mr Hale dated 17 March 2015. With respect to the Appellant and her partner, the grounds advanced by Counsel identify the appropriate legal point in this case. It is necessary for me only to consider only one of those grounds, as follows:
"4. In concluding that the Appellant cannot meet the requirements of paragraph paragraph EX1 and in particular that there were no insurmountable obstacles to family life being conducted elsewhere the judge has taken into account irrelevant matters, namely: can the Appellant make an entry clearance application from China. The test is whether family life can be continued elsewhere, not whether a further application from abroad to enable the Appellant to return is possible. In concluding that family life can continue by means of the couple either separating whilst the Appellant applies for entry clearance or with Mr Hall temporarily relocating to China he has failed to approach the question of whether there are insurmountable obstacles to the couple living together and thus enjoying their family live in China. The judge has therefore applied the wrong test."
9 In granting permission to appeal to this Tribunal, Judge of the First tier Tribunal Nicholson observed as follows in his decision of 5 May 2015:
"4. Whilst language difficulties and the sponsor's inability to use his qualifications would not amount to insurmountable obstacles, the judge appears to have accepted that Chinese immigration laws might prevent the sponsor from living permanently with the Appellant in China. Although the judge was undoubtedly correct to find that 'settlement' in China was not required to be able to enjoy family life there, it is arguable that the ability to continue family life outside the United Kingdom amounts to more than an ability to continue it on a temporary or sporadic basis only."
10 In a Rule 24 response dated 15 May 2015, the Respondent's position was that the judge had not erred in law.
11 I am provided with a skeleton argument from Mr Yeo dated 6 April 2016 in which he argues, in relation to the central ground I have identified above, that the meaning of 'insurmountable obstacles' within section EX of Appendix FM involves the consideration as to whether family life with a partner can continue outside of the UK, for the foreseeable future, although he does not insist that the partner be able to settle permanently in the proposed location where family life is to be enjoyed.
12 The Appellant also refers to paragraph EX2 which defines insurmountable obstacles as meaning 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 a partner.
13 The skeleton argument also makes reference to the Respondent's relevant policy: Appendix FM 1.0 family life (as a Partner or Parent) and Private Life: 10-Year routes, August 2015, which provides as follows:
"This means that an insurmountable obstacle can take two forms:
1. 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
2. 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."
14 The Respondent's policy also contains the following passage:
"The factors which might be relevant to the consideration of whether an insurmountable obstacle exists include but are not limited to:
a. Ability to lawfully enter and stay in another country. The decision maker should consider the ability of the parties to lawfully enter and stay in another country. Decision-makers should consider country policy and information where relevant. However, the onus is on the applicant to show that it is not possible for them and their family to enter and stay in another country for this to amount to an insurmountable obstacle. A mere wish, desire or preference to live in the UK would not amount to an insurmountable obstacle." (Emphasis in the original).
15 In submissions before me, Mr Duffy for the Respondent accepted at the outset of the hearing that there was a material error of law in the judge's decision, in holding that the potential for the Appellant to take a short term absence from United Kingdom for the purposes of making an application for entry clearance resulted in the Appellant not being able to satisfy the requirements of Section EX.
16 Mr Yeo argued that although it may have been legitimate for the judge to consider the length of any potential absence of the Appellant from United Kingdom as part of a proportionality balancing exercise that was required to be performed under Article 8ECHR, a temporary absence for the purposes of making an application for entrance to the United Kingdom was irrelevant to the consideration of paragraph EX, which required the consideration of whether they were insurmountable obstacles to family life with a partner continuing, outside the UK.
Discussion
17 There seemed to be little between the position of the two parties before me. I find that the judge materially erred in law, as argued in the grounds of appeal, and in the way summarised by Judge Nicholson granting permission to appeal. I find that section EX is to be construed so as to require the consideration of whether there are insurmountable obstacles to family life with the Appellants partner continuing outside the UK, for the foreseeable future.
18 The word 'continuing' signifies an ongoing state, which would not be represented by temporary or sporadic visits by the Appellant's partner to China.
19 I find that the judge's findings of fact on Mr Hall's ability to enter China are sufficiently clear. The judge accepts at paragraph 20 Mr Hall's evidence that he would not be able to settle in China as an unmarried partner because Chinese visa rules do not permit such a category. Further, as a visitor, he would any be able to enter for up to 30 days, extendable to 60 days. The judge recognised at paragraph 23 that unmarried partners do not appear to be recognised for immigration purposes. Further, at paragraph 24 the judge refers to the possibility of extended visits for 30 or 60 days.
20 I find that the restrictions on Mr Hall's entry to China would necessitate regular entry and exit from China, as a visitor. I find that such an arrangement cannot be said to represent a family life that is continuing in China. Although the Respondent's published guidance is not part of the immigration rules, I find it entirely logical, and consistent with my understanding of the meaning of section EX, that the Respondent treats in her policy an inability to enter and stay in another country as relevant to the question of whether an insurmountable obstacle exists to family life continuing outside of the UK.
21 I agree with Mr Yeo's proposed construction, that if family life cannot continue outside the United Kingdom for the foreseeable future, then it cannot be treated as being capable of continuing outside of the UK.
22 I set aside the judge's decision. I find that the immigration rules are satisfied in the present appeal, by reason of the existence of insurmountable obstacles to family life continuing outside of the UK, such that section EX of Appendix FM is satisfied.
23 I allow the appeal under the immigration rules.
24 In those circumstances, it is not necessary for me to consider the Appellant's remaining arguments regarding the judge's assessment of the proportionality of the Respondent's decision under article 8ECHR.
Decision
25 (i) I find that the making of the decision dismissing the Appellant's appeal involved the making of an error of law.
(ii) I set aside the judge's decision.
(ii) I remake the decision allowing the Appellant's appeal under the Immigration Rules.

Signed:

Deputy Upper Tribunal Judge O'Ryan
Date: 9.11.16