Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA388682014

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 14 June 2016
On : 15 June 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

olumide abimbola alabi
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Eteko of Iras & Co
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Nigeria, born on 14 August 1984. He has been given permission to appeal against the decision of First-tier Tribunal Judge Howard, dismissing his appeal against the respondent's decision to refuse his application for leave to remain in the UK on the basis of his family and private life.

2. The appellant entered the United Kingdom on 25 September 2010 with leave to enter as a Tier 4 (General) Student Migrant until 29 February 2012. He was subsequently granted an extension of stay as a Tier 1 Post Study Migrant, until 5 March 2014. On 19 February 2014 he applied for leave to remain as a spouse, having married on 9 December 2013.

3. The appellant's application was refused by the respondent on 14 August 2014, on the grounds that he could not meet the requirements in paragraph R-LTRP 1.1(c) in relation to the income threshold for maintenance and that he could not meet the criteria in Appendix FM and paragraph 276ADE(1) in relation to family and private life. With regard to Appendix FM, he could not benefit from EX.1(b), with reference to EX. 2, because he had not demonstrated that there were insurmountable obstacles to family life with his spouse continuing outside the UK. With regard to paragraph 276ADE(1) it was not accepted that there were very significant obstacles to integration into Nigeria. The respondent considered further that there were no exceptional circumstances justifying a grant of leave outside the immigration rules.

4. The appellant appealed against that decision. His appeal was heard on 6 July 2015 by First-tier Tribunal Judge Howard. The judge heard from the appellant and his wife. He found that there were no insurmountable obstacles to family life continuing in Nigeria and that the appellant could not meet the relevant criteria under the immigration rules. He found that the respondent's decision was proportionate and that there was no breach of Article 8. He accordingly dismissed the appeal.

5. The appellant then sought permission to appeal to the Upper Tribunal, on the grounds that the judge had given inadequate reasons for concluding that there were no significant difficulties to integration or relocation for the sponsor and had erred in his approach to Article 8 outside the rules by applying the "insurmountable obstacles" test when considering proportionality.

6. Permission to appeal was granted on 29 April 2016.

7. At the hearing before me Mr Eteko expanded upon the grounds. He submitted that the judge had erred, when considering insurmountable obstacles, by using the appellant's ability to integrate into the UK as a reason for concluding that the sponsor would be able to integrate into Nigeria, when the two situations were entirely different. The judge had failed to take into account the fact that the sponsor was heavily pregnant. The judge had replicated the error in his Article 8 assessment outside the rules and had failed to take into account all of the appellant's circumstances.

8. Mr Wilding submitted that no evidence was offered before the judge to show that there were insurmountable obstacles and the judge was therefore entitled to conclude as he did, both with regard to the rules and Article 8 outside the rules.

9. I advised the parties that in my view there was no error of law in the judge's decision. My reasons for so concluding are as follows.

Consideration and findings

10. It is correct to say that the judge's reasoning is brief. However, it is also correct to say that the evidence before him was very limited. I asked Mr Eteko to show me the evidence before the First-tier Tribunal of the insurmountable obstacles upon which the appellant was relying and his response was that there was no evidence, but that it had been expected that the judge would ask questions of the appellant and sponsor in that regard. As I reminded Mr Eteko, however, the burden of proof lies upon the appellant and it was not for the judge to make the appellant's case for him.

11. Turning to the evidence that was before the judge, aside from some country information about Nigeria, the documents within the two appeal bundles produced by the appellant related solely to the couple's finances, marriage and cohabitation. However the genuineness of the relationship and the marriage has not been disputed and there was no claim made before the judge that the appellant was able to meet the financial requirements of the immigration rules. The focus of the appeal was on EX.1(b) and the question of "insurmountable obstacles" and Article 8 outside the immigration rules, yet the large bundles of documentary evidence contained nothing other than the statements of the appellant and the sponsor in that regard.

12. The statements of the appellant and the sponsor were themselves very brief. Neither statement gave reasons why the sponsor could not relocate with the appellant to Nigeria but referred briefly only to the question of being apart from each other. The judge's record of proceedings shows that the appellant simply adopted his statement as his evidence and the sponsor gave little reason why she could not relocate to Nigeria other than that her family were in the UK. That was a matter considered by the judge at [12] in his decision. The judge considered that the sponsor would be able to integrate into society in Nigeria just as the appellant had managed to assimilate into UK society. I do not agree with the suggestion in the grounds, or in the grant of permission, that the judge was applying any particular test in such a consideration. He was simply considering all the circumstances on the very limited evidence that he had before him. Whilst he did not specifically refer to the sponsor's pregnancy, there was no evidence before him to suggest that that would have posed an insurmountable obstacle to relocation to Nigeria. Plainly, on the very limited evidence available, the appellant had simply failed to make out his case and the judge was perfectly entitled to reach the conclusion that he did, for the reasons adequately and properly given.

13. Likewise, with regard to his consideration of Article 8 outside the immigration rules, the judge followed the correct approach in considering whether or not the appellant's circumstances justified a grant of leave. He considered at [25] the relevant factors at section 117B of the Nationality, Immigration and Asylum Act 2002. Contrary to the assertion in the grounds he was not applying the "insurmountable obstacles" test again, but he found that that requirement under the immigration rules not having been met, there was nothing further in the appellant's circumstances to outweigh the public interests. That was a conclusion which was entirely open to him on the evidence before him, and in reality was the only conclusion that he could have reached on that very limited evidence.

14. Accordingly, and for the reasons given, I find that the judge's decision was one that was fully and properly open to him and that he did not make any errors of law in his approach to the requirements of the immigration rules or to Article 8 outside the rules.

DECISION

15. The making of the decision of the First-tier Tribunal did not involve an error on a point of law. I do not set aside the decision. The decision to dismiss the appeal stands.

Signed

Upper Tribunal Judge Kebede Dated: 15th June 2016