Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/42062/2013

THE IMMIGRATION ACTS

Heard at Vernon Street, Liverpool
On 06 January 2017
Date promulgated :
On 11 January 2017

Before

The Hon. Mr Justice McCloskey, President

Between

MUHAMMAD NAEEM HABIB
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation

Appellant: Mr R Ahmed, of Counsel, instructed by Greenahall Solicitors

Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION

1. This is a slightly fuller version of the decision which I gave ex tempore at the conclusion of the hearing of this appeal.

2. At the outset, it is convenient to rehearse some of the basic ingredients in the equation:

(a) The Appellant is a national of Pakistan, aged 29 years.

(b) He entered the United Kingdom in the capacity of spouse in October 2010.

(c) In December 2012 his solicitors applied on his behalf for limited leave to remain in the United Kingdom on the basis of his marriage.

(d) This application was refused on the ground that it was non-compliant with paragraph 284 of the Immigration Rules, in that the source of the Appellant's proferred English language competence was not a test provider approved by the Secretary of State. The refusal decision is dated 02 October 2013.

(e) By its decision dated 27 March 2014, the First-tier Tribunal ("FtT") dismissed the Appellant's appeal.

(f) By its decision promulgated on 23 June 2014, the Upper Tribunal set aside the decision of the FtT.

(g) Regrettably, a delay of over two years then ensued.

(h) Case management directions were given by an Upper Tribunal Judge on 24 November 2016.

3. The legal framework of this appeal is simply stated. The Appellant is unable to satisfy the relevant leave to remain requirement of the Immigration Rules, on account of the deficiency noted above. Furthermore, the Appellant's case does not satisfy the Article 8 ECHR regime established within the Rules. Thus the Appellant is driven to make the case that, outwith the said regime, his compelling circumstances dictate that the appeal be allowed on the basis that the impugned decision of the Secretary of State infringes the rights of the Appellant and his spouse under Article 8 ECHR. That the governing test is compelling circumstances has been confirmed recently by the Court of Appeal in Rhuppiah v SSHD [2016] EWCA Civ 803.

4. A decision to subject any appeal to the test of "compelling circumstances" proceeds, logically, on the basis that the first four of the five stages in the "Razgar" template have all been overcome. While I shall assume this in favour of the Appellant, having regard to the progress of his appeal and the presentation of the parties' submissions bilaterally, it is by no means clear that interference with his family life has been established, taking into account the paucity of all the evidence assembled.

5. While this was a remaking hearing, no evidence was adduced from the Appellant and no evidence over and above that previously assembled was provided. This circumstance gave rise to a submission by Mr McVeety on behalf of the Secretary of State that there is no evidence of any insurmountable obstacle preventing the continuation of marriage life in the Appellant's country of origin. This submission was not contested.

6. On behalf of the Appellant, Mr Ahmed drew attention to the following matters: the Appellant's lawful presence in the United Kingdom; the sole reason for the refusal of his application under the Rules and the nature of his non-compliance; the comments favourable to the Appellant in the error of law decision of the Upper Tribunal, in particular at [23] and [25]; and the further passage of time since the error of law decision was promulgated. I take all these factors into account.

7. In my judgement, the standout feature of the Appellant's is that it is ordinary and unremarkable. At its zenith, it attracts a certain degree of sympathy. But it falls manifestly short of overcoming the exacting threshold of compelling circumstances. It is a paradigm illustration of the kind of case which is doomed to failure on the current state of the law.

8. Finally, while noting that the argument based on the Secretary of State's IDI found some favour at the error of law stage, this was not advanced at all at the remaking hearing. I find this unsurprising. The inconclusive consideration which this discrete issue received in the error of law judgment, does not advance the Appellant's case for the reasons proffered in [13] - [14] of the decision of the FtT, which I consider unassailable.

Decision
9. I dismiss the appeal and affirm the decision of the FtT.

THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Date: 06 January 2017