Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/41292/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 July 2016
On 17 August 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

WADOOD FARIQ
Respondent

Representation:
For the Appellant: Mr N. Bramble, Senior Home Office Presenting Officer
For the Respondent: Mr S. Khan, Counsel instructed by Adam Bernard Solicitors

DECISION AND REASONS
1. For the sake of continuity I will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal to the Upper Tribunal.
2. The appellant appealed against the respondent's decision dated 6 October 2014 to refuse a human rights claim. First-tier Tribunal Judge Abebrese ("the judge") allowed the appeal in a decision promulgated on 17 November 2015.
3. The respondent appeals against the First-tier Tribunal decision on the following grounds:
(i) The judge failed to give adequate reasons to explain why the relationships with other family members in the UK rendered removal disproportionate. It is argued that the evidence did not disclose any particularly compelling features in the family life of the appellant and his partner.
(ii) The judge made a material error of fact in recording the appellant's status in the UK as "precarious" when, in fact, he had remained in the UK unlawfully for a lengthy period of time. Having identified the wrong status the judge failed to give adequate reasons to explain whether he had given little weight to the appellant's family life given that his status had always been unlawful.
(iii) The judge made contradictory findings. In assessing whether there were insurmountable obstacles to the couple continuing their family life in Pakistan under paragraph EX.1 of Appendix FM the judge found that the appellant resided there for a substantial period of his life and was accustomed to the culture and language in that country [29]. In assessing Article 8 outside the rules the judge found that the appellant might have difficulty in re-establishing himself in Pakistan [35].
Decision and reasons
4. After having considered the grounds of appeal and oral arguments I satisfied that the First-tier Tribunal decision involved the making of an error on a point of law.
5. While it seems clear from the decision that the judge was aware of the appellant's immigration history, and that he considered the appellant's family circumstances with his partner with some care, I have concerns about his application of the law to the facts.
6. The test of "insurmountable obstacles" to family life continuing outside the UK contained in the rules has some qualitative differences to the "compelling circumstances" test outside the rules. However, both tests impose a relatively stringent threshold albeit that it is arguable that the assessment of Article 8 outside the rules is likely to be a slightly higher threshold following the Court of Appeal decision in SSHD v SS (Congo) and Others [2015] Imm AR 1036. In light of that observation it is difficult to see how the judge could rationally reject the claim under paragraph EX.1 but still allow the appeal outside the rules on the ground that there were compelling circumstances that rendered removal disproportionate.
7. However, I find that point taken alone would be insufficient reason to set aside the decision. The respondent has pointed out valid concerns about the judge's proportionality assessment and the application of the public interest considerations contained in section 117B. It seems clear from the appellant's immigration history that he entered and remained in the UK unlawfully. He remained in the UK save for two unsuccessful applications to regularise his stay in 2012. At the date when he made the human rights application in June 2014 it could not be said that he had, at any point, been in the UK on anything other than an unlawful basis. It is difficult to see how the judge's conclusion that the appellant had "sought at all material times to remain within the law" could be sustainable in light of the appellant's immigration history.
8. The judge's characterisation of his stay as "precarious" is not legally correct within the framework of section 117B. Section 117B(5) states that little weight should be given to a private life established by a person at a time when the person's immigration status is precarious. The section only relates to private life and not family life. In the context of considering the appellant's family life with his partner in the UK the judge was obliged by statute to consider section 117B(4), which states that little weight should be given to a relationship formed with a qualifying partner that is established at a time when the person is in the UK unlawfully. The facts of this case fell squarely within that provision.
9. I do not accept that the error was merely "sloppy drafting". The fact that the judge wrongly characterised the appellant's immigration history gives some cause to doubt whether he placed appropriate weight on the fact that the relationship was established at a time when he was remaining in the UK unlawfully. Nothing in the judge's findings in paragraph 34 of the decision suggest that he applied the provisions of section 117B(4). While it was open to him to consider the compassionate factors relating to the appellant's relationship with his partner and her family in the UK he failed to weigh this against the statutory requirement to place "little weight" on that family life in the context of his overall proportionality assessment. There is no evidence to suggest that the judge gave consideration to other factors contained in section 117B that were material to a proper assessment of the public interest.
10. While I find that the alleged contradictions in the judge's findings outlined in the third ground of appeal are not as marked as suggested, the points that I have already highlighted above are sufficient to render the decision unsustainable. It seems clear that the judge was sympathetic to the family life established by the appellant and his partner in the UK. Unfortunately, this did not obviate the need to conduct a structured approach to his findings in accordance with the relevant case law and statutory provisions.
11. I conclude that the First-tier Tribunal involved the making of an error on a point of law.
DECISION
The First-tier Tribunal decision involved the making of an error on a point of law
I set aside the decision and remit the appeal to the First-tier Tribunal for a fresh hearing

Signed Date 16 August 2016

Upper Tribunal Judge Canavan