Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/48003/2014
IA/48007/2014

THE IMMIGRATION ACTS

Heard at HMCTS Employment Tribunals,
Liverpool
Decision & Reasons Promulgated
On 12th January 2017
On 13th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) mr kashif ali
(2) mrs asifa kashif
(ANONYMITY DIRECTION not made)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Mr P Draycott (Counsel)
For the Respondent: Mr G Harrison (HOPO)

DECISION AND REASONS

1. This is an appeal against a determination of First-tier Tribunal Judge J S Law, promulgated on 24th March 2016, following a hearing at Manchester Piccadilly on 8th March 2016. In the determination, the judge allowed the appeals of the Appellants whereupon the Respondent Secretary of State subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
2. The Appellants are husband and wife. They are both citizens of Pakistan. The first Appellant was born on 16th May 1973 and the second Appellant was born on 22nd November 1970. Both appealed against the decision of the Respondent dated 17th November 2014 refusing their application for leave to remain in the United Kingdom on the basis of their Article 8 rights, given that they had both been in the UK for twenty years, having arrived in 1995.
The Judge's Findings
3. In a detailed and lengthy determination, the judge referred to the various complexities in the application for leave to remain made by the Appellants with some degree of sensitivity and care before concluding that the Appellants were entitled to remain here on the basis of their private life rights. The case put forward was complex because the Appellants claimed that they had left Pakistan because they had fallen in love with each other but one was from the Pathan caste and the other was not and there was family opposition to their marriage. They arrived in the UK and married here.
4. They did not claim asylum even though they had a fear of return to Pakistan from people who disapproved of their marriage because they maintained they had been advised not to do so. They wished to remain here because after twenty years in this country they had nobody left in Pakistan who they could turn to (see paragraph 11).
5. The judge also found that the national insurance contribution confirmation in the documents had discrepancies in it with regard to the number, but also the commencement date, which was 1989, and therefore six years before the Appellant arrived in the United Kingdom. As the judge observed, "the only conclusion that could be drawn was that the documents themselves were either a forgery or did not belong to the Appellant even though they bore his name" (paragraph 18).
6. On the other hand, the judge was impressed by "the large number of supporting documents from friends and the fact that they were assisted and helped by friends at the very commencement of their life in the United Kingdom" (paragraph 19). Of concern to the judge also was the fact that the application could have been dealt with under the old Rules where it would have succeeded without the difficulties that they now encountered under the new Rules.
7. The judge went on to conclude that he was satisfied that:-
"the Appellants have a substantial family life within the United Kingdom which can only be maintained within the family life on the evidence that they had given that they would be persecuted if returned to Pakistan. The Appellants survived with the fear of such persecution from their joint families. However they did not endeavour to seek asylum as they had informed that if they did they would not be successful and be returned to Pakistan. I find that the relationship existed before they arrived in the United Kingdom. However the same was precarious when they entered into their marriage and life together with neither having any status to remain within the United Kingdom" (paragraph 22).
8. The judge held that "their relationship exists between themselves and has been embraced by friends but this does not include their joint families ..." (paragraph 23).
9. Although it was the judge's view that "the parties are married and have a viable and lasting relationship and this would be maintained anywhere even though there may well be difficulties ahead" (paragraph 30), the judge went on to state that there were features to the claim which led to it being successful under Article 8.
10. He held that if they were required to relocate to Pakistan then
"their fundamental human rights under Article 8 would be infringed with regard to their private life. The private life is in three elements, namely their association with friends, secondly the female Appellant's fragile mental state and thirdly her inability to seek IVF treatment of the specialist nature that is not available to her within Pakistan ..." (paragraph 33).
The judge also held that "in the present appeal the Appellants had been unfairly treated by the implementation of the Immigration Rules that if it had been heard within the conference of the old Rules then they would have qualified" (paragraph 35).
11. Ultimately, the appeal was allowed on the basis that
"the relationship between the Appellants is of such a strength which was forged in the United Kingdom by the Appellants in an endeavour to escape from the hostility of their joint parents that would warrant the view that if removal especially back to Pakistan this would be conceived as an unduly harsh treatment of their human rights" (paragraph 36).
12. The decision to remove was accordingly not proportionate to the legitimate aim of immigration control, according to the judge, because "the facts underpinned the Appellants' life in the United Kingdom taken either singularly or cumulatively outwith the Respondent's view as to removal" (paragraph 37).
13. The appeal was allowed under Article 8 of the ECHR (paragraph 40).
Grounds of Application
14. The grounds of application state that the judge made a material error in the determination that was repetitious and poorly written with a failure to give adequate reasons for findings on material matters. In particular it was not clear first how Article 8 was engaged; and second how the findings on proportionality followed properly from that. But more importantly, the judge failed also to make findings in relation to material issues before him.
15. First, there were no findings as to whether the HMRC documents, referred to were forgeries at paragraph 35.
16. Second, how it could be said that the Appellants had been unfairly treated given the Rule in Odelola.
17. Third, the judge failed to show why the transition of provisions did not apply or how the changes in the Rules resulted in unfairness.
18. On 3rd October 2016, permission to appeal was granted by the First-tier Tribunal on the basis that, although the judge concluded that Article 8 was engaged (at paragraph 23) he failed to provide adequate reasoning for this and the proportionality analysis is not sufficiently clear to lead to the conclusion that was arrived at. Nor, is it the case that the HMRC documents had been evaluated with a view to ascertaining whether they were indeed forgeries.
19. Finally, there was no reference to the jurisprudence set out at SS (Congo) [2015] once it was decided that the appeal stood to be allowed on Article 8 grounds.
20. At the hearing before me on 12th January 2017, the Appellant was represented by Mr Paul Draycott of Counsel and the Respondent was represented by Mr G Harrison, a Senior Home Office Presenting Officer. Mr Harrison relied upon the Grounds of Appeal. He submitted that the determination of Judge Law was repetitious, poorly written, and gave inadequate reasons for findings on material matters. Second, it was not clear how Article 8 was engaged and the judge's findings on proportionality were inadequately reasoned because they gave weight to immaterial matters such as the alleged lack of IVF treatment in Pakistan.
21. Finally, there was no finding as to whether the HMRC documents were forgeries, and the judge was wrong to have taken the view that the Appellants had been treated unfairly due to a change in the Immigration Rules, because as the judge found, the Appellants would have succeeded under the so-called a fourteen year Rule under the old Immigration Rules, whereby a person who had remained in the UK unlawfully without enforcement action being taken, would have been able to apply for indefinite leave to remain on that basis, but the new Rules had changed that position, and thereby adversely affected the Appellants.
22. For his part, Mr Draycott submitted that what this experienced judge had stated by way of his reasons at paragraphs 35 and 36 was a clear cut answer as to why this appeal should have been allowed. This was a case where the Appellants had remained unlawfully in the UK for fourteen years. There had been an attempt to serve enforcement proceedings, but this had been withdrawn by the Home Office, so this was a remarkable case of someone who had managed to remain, without going underground, in the UK, so as to benefit from the fourteen year Rule.
23. Once the Immigration Rules changed, the Home Office then proceeded on the basis that the Appellants had to show twenty year residence in the UK as a starting point and this deprived the Appellants of the years that they had built up living in this country when the old Rules stood to be applied to them.
24. As the judge said that if the application "had been heard within the confines of the old Rules then they would have qualified", making it quite clear that the judge was not going to "use this as an excuse for putting forward human rights on a higher level than it already is", but choosing instead to look, "at the human rights under the claims possible within private life", and then concluding that "private life has been in existence for in excess of twenty years within the United Kingdom and that I do not believe that it would be capable of being sustained outside the United Kingdom" (paragraph 35).
25. The reason why the judge took this view was because of the hostility to these Appellants, which the judge found to have been made out on the evidence before him, by their family members back home in Pakistan, because the wife belonged to the Pathan caste, and the couple had taken steps to flee Pakistan in order to come to the UK to get married here.
26. The judge was quite clear here that, "I accept as genuine their fear that if returned to Pakistan they would meet such hostility as to be unduly harsh if not higher" (paragraph 35).
27. As for allowing the claim to succeed under Article 8 on the basis that the Appellants' private life would be infringed, on the basis of three reasons that the judge gave, one of which was that if returned to Pakistan there would be an "inability to seek IVF treatment of a specialist nature that is not available to her within Pakistan for religious basis" (paragraph 33), what the judge was here referring to was the fact that the Appellants had been reliant upon an egg donor in order to continue with their IVF treatment, and for religious reasons, in a country like Pakistan, egg donors are not available and that would put an end to their treatment.
28. There was long standing Strasbourg jurisprudence to the effect that Article 8 is proactive in the sense that State authorities are bound to promote the right to private life and not just to avoid not infringing an existing private life. For these reasons, Mr Draycott submitted that the appeal should be allowed.
No Error of Law
29. I am satisfied that the making of the decision by the judge do not involve the making of an error of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision. My reasons are essentially those given by Mr Draycott, which are fully explicated in his detailed and lengthy skeleton argument.
30. This is a careful and detailed determination by Judge Law and it is well-established that the Upper Tribunal can only interfere with the decision of a fact-finding Tribunal of first instance if there is "perversity" in the determination and that this is "a very high hurdle". In fact, far too often practitioners use the word "irrational" or "perverse" where these epithets are completely inappropriate (see paragraph 12 of Lord Justice Brooke in R (Iran) [2008] EWCA Civ 982).
31. First, the judge has given reasons at paragraphs 33 to 37 that are sustainable on the facts found by him.
32. Second, the Immigration Rules prior to 9th July 2012 stated (at paragraph 276B) that the "requirements for indefinite leave to remain on the ground of long residence in the United Kingdom" were that a person "has had at least fourteen years' continuous residence in the United Kingdom excluding any period spend in the United Kingdom following service of notice of liability to removal of notice of decision to remove by way of directions ...". The Appellants have not been subjected to a notice of liability to removal or to a notice of decision to removal.
33. Third, the Appellants are undergoing artificial insemination, and as a matter that is germane to Article 8 considerations, this is something that has been well-established under the case law of the Strasbourg court: see Dickson v United Kingdom (2008) 46 EHRR 41. That the judge did not err in law in taking this into account. The absence of medical treatment to a country to which a person will be sent is not an irrelevant consideration: see MM (Zimbabwe) [2012] EWCA Civ 279. As for what is meant by "exceptional circumstances", it is well-established that this is does not mean "unusual" or "unique", but instead refers to unjustifiably harsh consequences for the individual such as would make the decision disproportionate: see MF (Nigeria) [2004] 1 WLR 544.
34. It is also the case that the Section 117A to B considerations of the NIAA 2002 must be construed in a flexible manner so that they take account of the separate proposition arising from the European Court of Human Rights case law that if an applicant in the past had a recognisable opportunity by which they could have regularised their immigration status within the relevant Member State but failed to take advantage of the same, then this is material to the issue of proportionality, as it means that their case can be distinguished from other persons who could not add any time reasonable effectively able to continue to exercise their Article 8 rights in the host country: see Rodriguez de Silva, Hoogkemer v Netherlands (2007) 44 EHRR 34.
35. This was a case where the Appellants were entitled as a matter of public law right, to have their application considered and whatever policy the Respondent had adopted at the time. The Appellants would have succeeded on that basis.
36. The judge was also perfectly entitled to take into account the second Appellant's psychiatric condition which is set out in her witness statement of 22nd February 2016 and which the judge refers to at paragraph 12 of the determination. It would indeed have been erroneous of him not to have done so.
37. Finally, there is the issue of forged documentation from the HMRC. This was an exposed facto allegation and it did not appear in any of the Respondent's refusal letters and it was not put to the first Appellant in the course of his cross-examination (which is quoted at paragraph 11 of the determination).
38. Indeed, it was not even made in the course of the Respondent's closing submissions, (which are noted by the judge at paragraph 17). It is an entirely peripheral issue here and what the judge was entitled to not to have to decide it given the background to the manner in which it was raised. For all these reasons, there is no error of law in this determination.
Notice of Decision

There is no material error of law in the original judge's decision. The determination shall stand.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 9th February 2017