Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/48171/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 January 2016
On 20 January 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE PEART

Between

PROSPER KELVIN SAGAY
(anonymity direction NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Bahja of Counsel
For the Respondent: Mr Nath, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Nigeria. His date of birth is 29 October 1973.
2. He appealed against the respondent's decision dated 20 November 2014 refusing his application for further leave to remain under Appendix FM paragraphs 276ADE(1)-276DH of the Rules. Judge of the First-tier Tribunal Wyman (the judge) allowed the appeal against the respondent's refusal under the Immigration Rules and Article 8 of the ECHR because she found that there would be "insurmountable obstacles" to the appellant having a family life with his wife in Nigeria. She set out her reasons in that regard at [64]-[67] of her decision. She went on to consider paragraph 276ADE of the Rules and found for the reasons that she set out at [68]-[69] of her decision, that there were "exceptional circumstances" in the sense that whilst there would not be significant obstacles to the appellant's integration in Nigeria, there would be significant obstacles to the appellant's wife's integration because she had said in oral evidence that she would not go back to Nigeria due to her recent experience there of carjacking. In those circumstances, the judge found there were "exceptional circumstances" and allowed the appeal under the Rules and under Article 8.
3. The respondent appealed the judge's decision claiming that the judge had materially misdirected herself in law in considering whether insurmountable obstacles existed. The grounds claimed the judge had not imposed the rigorous threshold as considered in Agyarko [2015] EWCA Civ 440 such that she had erred in her assessment as to whether insurmountable obstacles existed and further, that the judge erred in an inadequate analysis that "exceptional circumstances" existed. Overall, the judge's Article 8 assessment was entirely misguided.
4. Judge Cox granted permission to appeal on 14 October 2015. He found the grounds arguably revealed a material error of law in that the judge misdirected herself in her consideration of "insurmountable obstacles" under EX.1 and also with regard to Article 8 outside the Rules. The test was stringent. See Agyarko. The judge arguably applied too low a standard.
5. There was no Rule 24 response.
Submissions on Error of Law
6. Mr Nath relied upon the grounds and drew my attention in particular to [25] of Agyarko.
7. Mr Bahja relied upon his skeleton argument. In particular that Agyarko and SS (Congo) [2015] EWCA Civ 387 were being appealed to the Supreme Court.
Conclusion on Error of Law
8. The respondent accepted the appellant satisfied the relationship requirements of E-LTRP.1.2-1.12 but not the immigration status requirements of E-LTRP such that the respondent went on to consider whether EX.1 applied in terms of E-LTRP.2.2. EX.1(b) provided an exception to eligibility requirements for leave to remain as a partner. No issue was taken that the appellant and the sponsor had a genuine and subsisting relationship. The appellant's spouse is a British citizen. The issue was with regard to whether there were any insurmountable obstacles to family life continuing in Nigeria rather than in the UK. EX.2 reads as follows:
"For the purposes of paragraph EX.1.(b) 'insurmountable obstacles' means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner."
9. Case law has subsequently considered "insurmountable obstacles" in relation to EX.1. See Agyarko, in particular at [21]-[25]:
"21. The phrase 'insurmountable obstacles' as used in this paragraph of the Rules clearly imposes a high hurdle to be overcome by an applicant for leave to remain under the Rules. The test is significantly more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the United Kingdom.
22. This interpretation is in line with the relevant Strasbourg jurisprudence. The phrase 'insurmountable obstacles' has its origin in the Strasbourg jurisprudence in relation to immigration cases in a family context, where it is mentioned as one factor among others to be taken into account in determining whether any right under Article 8 exists for family members to be granted leave to remain or leave to enter a Contracting State: see e.g. Rodrigues Da Silva and Hoogkamer v Netherlands (2007) 44EHRR 34 [39] ('...whether there are insurmountable obstacles in the way of the family living together in the country of origin of one or more of them...'). The phrases used in the Rules is intended to have the same meaning as in the Strasbourg jurisprudence. It is clear that the ECTHR regards it as a formulation imposing a stringent test in respect of that factor, as is illustrated by Jeunesse v Netherlands (see [117]: there were no insurmountable obstacles to the family settling in Suriname, even though the applicant and her family would experience hardship if forced to do so).
23. For clarity, two points should be made about the 'insurmountable obstacles' criterion. First, although it involves a stringent test, it is obviously intended in both the case law and the Rules to be interpreted in a sensible and practical rather than a purely literal way: see, e.g., the way in which the Grand Chamber approached that criterion in Jeunesse v Netherlands at [117]; also the observation by this court in MF (Nigeria) v the Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1WLR 544, at [49] (although it should be noted that the passage in the judgment of the Upper Tribunal in Izuazu v Secretary of State for the Home Department [2013] UKUT 45 (IAC); [2013] Imm AR 453 there referred to, at [53]-[59], was making a rather different point, namely that explained in [24] below regarding the significance of the criterion in the context of an Article 8 assessment).
24. Secondly, the 'insurmountable obstacles' criterion is used in the Rules to define one of the preconditions set out in Section EX.1(b) which need to be satisfied before an applicant can claim to be entitled to be granted leave to remain under the Rules. In that context, it is not simply a factor to be taken into account. However, in the context of making a wider Article 8 assessment outside the Rules, it is a factor to be taken into account, not an absolute requirement which has to be satisfied in every single case across the whole range of cases covered by Article 8; see [29]-[30] below.
25. ......The mere facts that Mr Benette is a British citizen, has lived all his life in the United Kingdom and has a job here - and hence might it difficult and might be reluctant to relocate to Ghana to continue their family life there - could not constitute insurmountable obstacles to his doing so."
10. Both with regard to the substantive appeal in terms of the Rules, case law, in particular Agyarko and with regard to S.117B, I find the judge erred in failing to take account of the public interest considerations applicable and in failing to carry out or carrying out an inadequate analysis with regard to the same.
11. I drew the advocate's attention to Sunassee [2005] EWHC 1604 (Admin) which gave a helpful analysis of SS (Congo) [2015] EWCA Civ 387 and sought to simplify the complex requirements under the Rules by suggesting that whether circumstances were "compelling" or "exceptional" was not a matter of substance rather, they must be relevant, weighty and not fully provided for within the Rules. That is, there must be a "gap", not covered by the Rules. Whilst in practice, those gap issues were likely to be both compelling and exceptional, that was not a legal requirement.
12. The judge erred because she failed to carry out any analysis or an inadequate analysis with regard to the public interest. The exceptional circumstances identified were that the appellant's spouse had lived here for twenty years and had only returned to Nigeria on three occasions for very short visits. During the last visit she was the victim of an attempted carjacking which frightened her. The appellant and his wife both have family in Nigeria although contact with them has been limited. I find the judge's analysis that whilst there would not be significant obstacles to the appellant's integration back in Nigeria, there would be significant obstacles to his wife's integration there due to the recent attempted carjacking inadequate. I set aside the decision of the judge and proceed to re-make the decision.
13. I have carefully considered but do not accept that the matters the judge set out in the evidence of the hearing at [28]-[45] or her findings and conclusions at [55]-[69] of the decision are such as to amount to compelling circumstances preventing the location of the appellant and the sponsor to Nigeria. The appellant and the sponsor both have family in Nigeria. They can both obtain employment there. See Agyarko at [25]. Agyarko was authority for the proposition that merely because the sponsor had lived in the United Kingdom for a considerable time and had a part-time job here such that he might find it difficult and might be reluctant to relocate to continue family life abroad, could not constitute insurmountable obstacles to him doing so.
14. I am also required to give consideration to the aspects specified in S.117 of the 2002 Act as amended by the Immigration Act 2014. There is an overlap between the Rules and S.117. Relevant factors under S.117 are as follows:
15. I bear in mind the public interest considerations in S.117B and in particular S.117B(5) that little weight should be given to life established here when immigration status was precarious. See SS at [37] which discusses marriage and family life to a foreign national when that person had no right to be here. I find these are issues which the sponsor and the appellant considered or should have considered at the time they entered into their relationship.
16. The appellant does not meet the requirements of the Immigration Rules such that I have considered his circumstances in terms of SS and Sunassee, described as the "gap" issues at [36] of Sunassee. I find there are no relevant, weighty matters which are not fully provided for within the Rules. If there are then I find the respondent's decision to be proportionate, for the reasons I have set out above.
17. For the reasons I have given, I set aside the judge's decision and remake the same. The appellant's appeal is dismissed under the Rules and on Human Rights grounds.
Notice of Decision
18. Appeal dismissed.
Anonymity direction not made.

Signed Date 8 January 2016

Deputy Upper Tribunal Judge Peart

TO THE RESPONDENT
FEE AWARD

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

Signed Date 8 January 2016

Deputy Upper Tribunal Judge Peart