Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/43644/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th March 2017
On 18th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Mr STANLEY JOSHUA OWURAKU KUDOLO
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B Malik (Counsel)
For the Respondent: Mr I Jarvis (HOPO)

DETERMINATION AND REASONS
1. This is a substantive appeal before this Tribunal. The Appellant has appealed against the Secretary of State’s letter of refusal dated 8th October 2013 refusing his application to remain in the UK on the basis of his Article 8 rights on account of his relationship with a Ms Moveta Douglas-Squire, with whom he has been in a relationship in this country. She is a British citizen and present and settled in the UK. The Appellant himself is a male, a national of Ghana who was born on 3rd July 1968.
2. The Appellant entered the UK on 18th December 2001 as a visitor. He remained here unlawfully after expiry of his valid visa to remain. He did not thereafter seek to regularise his stay here. He came to light when accounted by immigration officials on 29th September 2013. He was then subject to notice of administrative removal.
3. The Appellant’s application pursuant to Article 8 of the Human Rights Convention to remain in the UK on Article 8 grounds was dated 2nd October 2013 and refused by the Respondent on 8th October 2013, following which the matter went to an appeal to the First-tier Tribunal before Judge Mailer on 15th September 2014. He dismissed the appeal on 31st October 2014, whereupon the Appellant appealed that decision and the appeal was dismissed by Judge Lever in a determination promulgated on 15th June 2015.
4. Permission to appeal to the Upper Tribunal was sought on the papers and refused by the Upper Tribunal by Judge McGeachy on 28th July 2015.
5. Thereafter, an appeal before the Court of Appeal was allowed by consent on the papers, and in these circumstances, the matter returns back to the Upper Tribunal to be heard afresh before me today.
6. On 4th January 2017, DUTJ Saini gave an error of law decision and directions. In a detailed determination, he stated that the matter should be listed before this Upper Tribunal for three hours, “given that the issues may prove to be complex against the factual matrix underlying the appeal.”
7. At the hearing before me on 13th March 2017, however, Mr Malik of Counsel, appearing on behalf of the Appellant, submitted that he was in considerable difficulty this morning, because having arrived, he had just learned that the Appellant’s partner, Ms Moveta Douglas-Squire, was not going to be attending the hearing as it was expected she would do, because she had a job interview to attend to in Greenwich at 11.30 a.m. She was likely then to be here at the hearing centre at 1 p.m. or 2 p.m. in the afternoon.
8. Mr Malik did, however, make it absolutely plain that he could give no undertaking to this effect as Counsel, but all he could say was that both he and the Appellant had been on the phone to her this morning, and all he could was to offer his apologies.
9. Mr Jarvis, appearing on behalf of the Respondent, submitted that in these circumstances, it must be open to him, on behalf of the Secretary of State, to raise the question mark about the continuing viability of this relationship, although the judge below had accepted that the parties were cohabiting and were in a genuine and subsisting relationship, with their religious marriage ceremony having taken place, but no civil ceremony as yet.
10. Mr Malik replied to say that the Sponsor, Ms Douglas-Squire had always been in attendance on previous occasions, and it may well be that she had misunderstood the nature of the proceedings.
11. I adjourned the matter to enable Mr Malik to take further instructions from the Appellant, and when they returned at 11.15 a.m., it was decided that they would proceed in the absence of the Sponsor. I had the benefit of Mr Malik’s skeleton argument which was detailed and comprehensive, together with the supplementary witness statement of the Appellant’s “spouse”, namely, Ms Douglas-Squire, which arrived by fax during the course of the hearing, is dated 16th January 2017.
12. In his evidence-in-chief, the Appellant adopted his witness statement (at A7 and at A11) and Mr Malik asked for permission to put some supplementary questions to the witness. In his evidence-in-chief the witness accepted that he was in a subsisting and genuine relationship with the Sponsor Ms Douglas-Squire. He said that she could not go with him to Ghana because she was established in this country and did not want to move. He said he had made enquiries about her kind of work, namely, being a practice manager at a large dental practice, in Ghana but had found out that the number of dental practices in a country like Ghana were very limited. He said that he had looked at the news for information on this. He would estimate that the numbers would be anything from 10,000 to 200,000 in Ghana. When asked what enquiries he had made he said, “I’ve made a few enquiries from a few friends”.
13. He was then asked if he could support her, and he said that he could not support her because he had no relatives and no property in Ghana and he had not been working there. Although he had been working in this country as a minister, but he would have to compete with the labour market there and could not easily find a job there in the same way. Asked why he came to the UK he said he did so in order to study. He used to go to the USA and he had the opportunity to study a course in computer science at Westminster University, which was a short course, and he came here to do this. With respect to funding, he said that friends of his in this country provided the funding for that course.
14. Mr Malik then asked the witness about the difficulties that his partner was having in conceiving a child, as this was a matter that weighed heavily upon her, and explained that she had already had a miscarriage and had been taking chlomid for a year, but she stopped after a year because this is the medical advice, and they were now waiting for the next stage, which would be IVF treatment, and they would have to pay for this privately because the NHS cannot help them. He was asked whether he had made enquiries about the availability of IVF clinics in Ghana. He said that he had looked on the internet and concluded that his wife’s chances of conceiving were higher in the UK, because this is what the information states on the internet. Moreover, there was the availability of a package of three treatments in this country, which was not available in Ghana where IVF treatment was still in its infancy.
15. When asked about the costs of such treatment, he said that it was cheaper there but the issue was that of his having the financial outlay to expend on such a treatment in the first place which he did not have. He said that his wife’s income was between £1,600 to £1,800 per month and IVF treatment cost in this country from £2,500 to £9,000 depending on the package or course of treatment that one purchased.
16. The Appellant was then asked whether his wife had any relatives in the UK and he said that she had cousins, and now had a very healthy relationship with her mother in Jamaica, which was not previously the case. His attention was drawn to the money transfers at C24 and C25 and he confirmed that his wife was now sending monies to her family in Jamaica, having made up with her mother, against a background of a very poor relationship during her early years. It was then put to him that English was the official language in Ghana and therefore it must now be possible for him to get a job there. He said that this was true but the Ashanti language was the predominant language, and certainly in the rural areas in the small towns this would be the language spoken and he could not get a job in the ministry there in the same way as he could in this country. Finally he was asked how his wife would integrate in Ghana and he said that she had been there once and she did not like the culture and language was a barrier. He said, “You cannot interact with everyone, including in the hinterland and the villages, as an English speaker”. He was asked why his English was so good and he said, “My English is good because I determined to study when I was young” and he had the support of his family.
17. In cross-examination by Mr Jarvis, he was asked what the costs of IVF would be in Ghana and he said that, “The first one is the same as in this country. But the quality is not the same”. He was asked if he knew what the number of dental practices were in Ghana and he said that there were few in number. It was put to him that he must be guessing because he had earlier said that the range went from anything from 10,000 to 200,000. He said that he did not know. It was put to him that the judge previously had said that his wife knew that he had a precarious immigration status. He said this was true. He was asked why he could not get the assistance of the church in Ghana. After all, he was a minister here. He said that he had no contacts there. He explained that, “The experience I have here pertains to here”. It was put to him that he grew up in Ghana and he could go back. He said, “I can only work there on a voluntary basis”.
18. He was then asked why he could not get another job in Ghana and he said, “Because competition is very strong”. He explained that his blood sister was in this country as well. He confirmed he did not have his wife’s current bank statements. Mr Jarvis also enquired why the Appellant’s wife’s cousins could not assist him in this country and he said that he had only seen them when they came to the wedding ceremony that they performed in the church in 2011. He was asked whether he had any evidence to show that his wife’s family in Jamaica could not survive without the remittances that the wife was sending them. He said that all he could say was that they were dependent on her.
19. Finally, he was asked whether his wife knew about the hearing today. He said that she did know but the pressure of IVF, and paying the lawyers, and all the other matters weighed heavily on her. He was asked whether he had spoken to his wife this morning. He said he had done but she said that she was not sure what difference her turning up to give evidence would make, given that she had on previous occasions always attended, but the lawyers had done all the talking and she had not given any evidence.
20. There was no re-examination.
21. In his closing speech, Mr Jarvis relied upon the judgment of the Supreme Court in Agyarko [2017] UKSC 11, which had only been handed down on 22nd February 2017, but which makes it clear (at paragraph 43 on page 17) that “insurmountable obstacles” is a “stringent test”. Mr Jarvis submitted that the Secretary of State’s Immigration Rules are not a pure extension of the ECHR jurisprudence, and they are entitled to be so, so long as they are sufficiently compliant with the ECHR, and this is what the Supreme Court has determined. The fact that jobs need to be changed is not “an insurmountable obstacle”. Even if the relationship is found in this case to be an ongoing one the Appellant will still fail because at page 1148 of Phelan there is set out the “relationship requirements”, and all of these have to be met before one can get to EX.1. It will be necessary to consider what family life can be maintained in Ghana. If the Appellant cannot succeed, therefore, under the Rules, then consideration will need to be given to her appeal “outside the Rules”, but here the Appellant cannot succeed either because there has to be “unjustifiably harsh consequences”. In fact, it is more difficult to succeed on proportionality outside the Immigration Rules because one is then having to consider Section 117B of the 2014 Act where immigration control is a matter of important public interest. For all these reasons, the appeal could not succeed.
22. For his part, Mr Malik submitted that he would have to accept that the Appellant falls under Section 117B if the appeal is to be considered “outside the Immigration Rules”. However, this appeal was not fundamentally to be considered “outside the Rules” but within the Rules where the Appellant could satisfy the requirements of EX.1. He went on to say that he would have to concede that “the elephant in the room is the absence of the Appellant’s wife today”, but she had always attended in the past. He submitted that ultimately the appeal should succeed because there were “insurmountable obstacles” as set out at paragraph 16 of his skeleton argument.
My Consideration of the Appeal
23. This is a case where the Appellant, a national of Ghana, has overstayed the terms of his visa. It is not in dispute that he has been in a relationship with a British citizen and has undergone a religious marriage. He has on that basis sought to regularise his immigration status. He maintains that he has deep ties in British society and has integrated into British life. This is over a lengthy period of time. He has been active in the local community. He is involved with the church. Accordingly, he would face significant difficulties in the form of “insurmountable obstacles”, in relating to Ghana with his spouse, who is a British citizen, with no experience of Africa, and who has set her face against relocating to Ghana. The couple have been undergoing IVF treatment with a view to the Appellant’s wife conceiving a child and this has so far proved unproductive.

24. I find that this is an appeal where EX.1 applies because although, E-LTRP sets out the requirements for immigration state with respect to an applicant, who wishes to qualify under the Rules, and that certain classes of immigration status are expressly excluded, (these being visitors and those with less than six months leave remaining) E-LTRP2.2 applies to a person in the Appellant’s situation where he has overstayed his immigration leave. Mr Malik has helpfully set the provisions out in his lengthy skeleton argument.
25. It is clear that the Appellant here arrived in the UK more than six months prior to the date of his application, and in addition to that he has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen. It is, of course, the case that the Appellant’s wife has not today attended the hearing. However, she had attended always in the past. The explanation she gives is that she has never been called upon to give evidence on previous occasions and unacceptable and unsatisfactory as her explanation is given that this was a substantive hearing in which her evidence was pivotal to the Appellant’s appeal, the fact is that this is the explanation she gives. She gives this explanation, particularly in the context of her ongoing IVF treatments.
26. I note that in the supplementary witness statement of the Appellant’s wife she states (at paragraph 1) that, “I have been constantly advised by my doctor to relax but since I am the bread earner of the family, working on a full-time basis to meet both ends, it has not been possible”. She makes it clear (at paragraph 2) that, “I cannot see myself living in Ghana for the rest of my life”. She also adds that, although she is under treatment in the UK to have a child, “This is done to a standard which is not available in Ghana” (paragraph 3). Mr Jarvis did initially state that this could raise a question mark as to whether the relationship has broken down. It is not altogether inconceivable that in the stress of attempting to conceive a child, over a long period of time, the relationship may well break down, especially where the Appellant’s wife is having to do so much in terms of making a living and to have a family as well.
27. However, there is no evidence before this Tribunal that the relationship has broken down, and given the long years during which the relationship was subsisting, in circumstances where the parties were living together, and had undergone a religious marriage ceremony, I have concluded, on a balance of probabilities, that they are still in a genuine and subsisting marriage relationship.
28. I do not find that there are “insurmountable obstacles” to the Appellant’s family life if he were asked to relocate to Ghana. This need not be on a permanent basis. It can be on a temporary basis. He may go alone, or he may go with his wife, and return after a proper spouse’s application for entry clearance is made, to join his British citizen wife living in the UK. If he chooses to go alone, the separation is only a matter of a few months at most. If he and his wife choose to go together, they will be out of the country only for a matter of a few months again.
29. The important point is that there are no “insurmountable obstacles”, in the sense of there being no “very serious hardship” (see paragraph 48 of Agyarko) to this course of action. The judgment of the Supreme Court in Agyarko is helpful in the sense that it emphasises the importance of the Secretary of State’s policy. Her policy, and the jurisprudence of the European Court on Article 8 are not coterminous. This was made clear by the Supreme Court when it observed that,
“It is argued that the Secretary of State has treated ‘insurmountable obstacles’ as a test applicable to persons in the UK in breach of immigration laws, whereas the European Court treats it as a relevant factor in relation to non-settled immigrants. That is true, but it does not mean that the Secretary of State’s test is incompatible with Article 8. As has been explained, the Rules are not a summary of the European Court’s case law, but a statement of the Secretary of State’s policy. That policy is qualified by the scope allowed for leave to remain to be granted outside the Rules. If the applicant or his or her partner would face very significant difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship, then the ‘insurmountable obstacles’ test will be met ...” (paragraph 48).
30. The Supreme Court had emphasised the importance of state policy (at paragraph 46) when it observed that,
“Immigration control is an intensely political issue, on which differing views are held within the contracting states, and as between those states. The ECHR has therefore to be applied in a manner which is capable of accommodating different approaches, within limits”.
31. That is the position here. The Appellant’s wife has not attended to explain exactly why it is that she cannot go to Ghana for a short period. Her supplementary witness statement, simply states that, “I cannot see myself living in Ghana for the rest of my life” (paragraph 2). She is not being asked to live there for the rest of her life. The evidence of the Appellant himself, with respect to IVF treatment in Ghana, is wholly unconvincing. His evidence with respect to the availability of a job for the Appellant’s wife there is also wholly unconvincing.
32. With respect to the latter, he maintained that dental practices were far and between in Ghana, and estimated that there could be anything between 10,000 to 200,000 such dental practices. Whatever the number, the Appellant’s wife is well placed, with her admirable qualifications, to seek a senior position in a dental practice in Ghana, a country where English is the main language.
33. With respect to the former, he is wrong to say that IVF treatment is more expensive there, although it may not be as yet to the same quality, but the matter has not been properly investigated, and he gave no evidence to show that it had been properly investigated. His own employment prospects are also likely to be quite considerable and it is wrong to say that “competition is very strong” for him to get a job as a minister in the church.
34. He is a man of high intelligence and extremely well spoken in English and the suggestion that he could not meet with employment is not tenable. All in all, the circumstances presented do not point to a situation where there are “insurmountable obstacles” in the face of the continuation of a family life between the Appellant and his wife.
Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is dismissed.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 7th April 2017

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Juss 7th April 2017