Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/39124/2014

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 1st September 2016
On 27th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Mr Ismail [P]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N Ahmed (Counsel)
For the Respondent: Mrs Abone (HOPO)

DECISION AND REASONS
1. The Appellant, the Secretary of State, appeals with permission against the decision of reasons statement of First-tier Tribunal Judge Cox, promulgated on 21st August 2015. Judge Cox allowed the appeal of Mr [P] against the decision of the Secretary of State dated 19th September 2014 to refuse him leave to remain in the UK on the basis of his family and private life, on account of his marriage with [HP], a British citizen in July 2011.
2. Mr [P] was represented by Mr Ahmed of Counsel and the Respondent was represented by Mrs Abone, a Senior Home Office Presenting Officer.
3. Mrs Abone, representing the Secretary of State, relied upon the Grounds of Appeal. These state that, although EX.1.(b) and EX.2 of Appendix FM have nothing to say about returning to the home country with a view to making an entry clearance application, and that the sole question is whether there are insurmountable obstacles to family life continuing "outside the UK", the Tribunal decision in Chen [2015] UKUT 00189, is of some considerable significance.
4. This states that, given that the issue may well be whether temporary separation to enable an individual to make an application for entry clearance will turn out to be disproportionate, in all cases "it will be for the individual to place before the Secretary of State evidence that such temporary separation will interfere disproportionately with protected rights" and that it is not enough to rely upon the case of Chikwamba [2008] UKHL 40.
5. Second, even if the case of Chen was not before the Tribunal, nevertheless, given that the judge had described the Appellant's immigration history as one that was "disgraceful" such that he had deviously set out to manipulate the Immigration Rules, with a view to securing settlement, it was not disproportionate, and in the interests of immigration control, to require the Appellant to return back to India to make a fresh application to enter on a spouse's visa.
6. For his part, Mr Ahmed submitted that there was no material error of law at all. This is because paragraph 11 did not stand alone. The judge, after paragraph 11, had gone on to make further findings at paragraph 12 and paragraph 13, and there were no direct challenges to what was said in paragraph 12 and paragraph 13. It is true that the judge has referred to the Appellant's "disgraceful immigration history during which he has evidently pursued his own interests with complete distain for the UK system of immigration control" (paragraph 11).
7. Nevertheless the judge also found that "insurmountable obstacles do exist in this case for the cumulative reasons" that were set out in the skeleton argument, and these included the fact that the Appellant's partner was a British citizen settled in the UK; had a diagnosis of schizoaffective disorder with a history of mental health, such that she had been admitted to hospital under Section 2 of the Mental Health Act, that she did not hold dual nationality and Indian immigration laws do not permit dual nationality; and that given that the Appellant's partner was a British citizen it would be unreasonable to expect the British citizen to give up her rights to relocate to India, and any such requirement may well offend against the principle in Zambrano (see paragraph 12).
8. Furthermore the Appellant's wife was expecting a child (see paragraph 12(j). In these circumstances the judge took into account the fact that "given the particular vulnerabilities of [HP] and her ongoing treatment for her mental disorder, the continuity of which coupled with the support she receives from the Appellant appeals vital to her stability" (paragraph 13).
9. In reply, Mrs Abone submitted that there were no "insurmountable obstacles" to the Appellant returning to India and remaking an application on a spouse's visa given that the statistics showed that 34% of visa settlement applications are determined within fifteen days, 98% are determined within 30 days and 100% are determined within 60 days. Accordingly, this was a case where the "temporary separation" would not interfere disproportionately with protected rights.
No Error of Law
10. I am satisfied that the making of the decision by the judge does not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. I note Mr Ahmed's skilful argument before this Tribunal that the Immigration Rules in EX.1. and EX.2. import no question of "proportionality" when discussing the issue of whether there are "insurmountable obstacles to family life being enjoyed outside the UK", and that this is only a calculation that is embarked upon if consideration is given to family life rights outside the Rules.
11. However the Tribunal in Chen has made it clear that in the consideration of EX.1 and EX.2, when regard is had to "temporary separation" to enable an individual to make an application for entry clearance" it is important to consider whether this "will interfere disproportionately with protected rights". The plain fact here is that the judge has given all due consideration to the proportionality of the measures taken. It was for the judge to do so and the judge has demonstrated that such a judicial fact-finding exercise cannot be termed to be "perverse" or "irrational". This is because the judge states at paragraph 11 that the Appellant's immigration history has indeed been a "disgraceful" one, whereby he has "pursued his own interests with complete distain for the UK's system of immigration control".
12. Importantly, he has also noted within the same paragraph that the Appellant's Islamic marriage was regarded by the Secretary of State as being one which was genuine and subsisting, given that they had lived together as partners for two years and that, it is also amply corroborated that she is now pregnant with the party's first child" (paragraph 11).
13. As against this, the judge then went on to consider at paragraph 12 those factors that weighed in the balance in favour of the Appellant and gave these detailed consideration. At paragraph 13, the judge then returned to the question of "insurmountable obstacles" and observed the "vulnerabilities of [HP]" given her ongoing treatment before concluding that [HP] would not go to India as she made clear and that in that event "there would be no prospect of continuing family life together outside the UK" (paragraph 30).
14. I have to say finally, that I found [HP]'s conduct in the court to be highly objectionable in the manner that she spoke out but I accept Mr Ahmed's submissions that this was on account of her mental condition. It does not, in any event, impact upon the legality of the decision below which I hold to be sustainable.
No Error of Law
15. There is no material error of law in the original judge's decision. The determination shall stand.
16. No anonymity order is made.

Signed Date

Deputy Upper Tribunal Judge Juss 21st September 2016