Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/48923/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30th January 2017
On 8th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

miss aradhana aradhana
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr R Layne (Counsel)
For the Respondent: Mr I Jarvis (Senior HOPO)

DECISION AND REASONS

1. The Appellant is a female, a citizen of India, who was born on 21st April 1989. She appealed to the First-tier Tribunal against the decision of the Respondent, taken on 30th March 2014, refusing her leave to remain as a spouse of the Sponsor, Mr Bader Khan. The matter had been previously determined in a decision by Judge Tindal dated 30th March 2014, where upon his allowing the appeal, Deputy Upper Tribunal Judge McCarthy in a decision dated 13th January 2016, reversed the decision, and remitted it back to the First-tier Tribunal, whereupon it was determined by Judge M Robertson, in a decision promulgated on 11th August 2016, and thus the matter comes before me today.
2. The Appellant's appeal, as determined by First-tier Tribunal Judge Robertson at Birmingham, Sheldon Court, included a consideration of Section 117B of the 2002 Act, the application of the decision in AM (S.117B) Malawi [2015] UKUT 260, and the application of the decision of the Court of Appeal in Hayat [2012] EWCA Civ 1054 (see paragraphs 29 to 30 of the determination). Judge Robertson allowed the appeal under Article 8 ECHR, after holding that the Appellant could not succeed under the Immigration Rules, because the Appellant was pregnant with an estimated delivery date of 4th October 2016, and it was accepted by Mr Layne appearing on her behalf that she could not satisfy the financial requirements of the Immigration Rules at the date of the application, and therefore had to fall back on Article 8 ECHR.
3. The Grounds of Appeal state that, since the judge had already ruled that the Appellant could not succeed under the Immigration Rules, she was wrong to then have gone on to allow the appeal outside the Immigration Rules on the basis of Article 8. The judge had not engaged with the question as to whether the Appellant could seek the necessary entry clearance upon return to India and there was no reference to the case of Chen [2015] UKUT 00189. That case established that Lord Brown's statement in Chikwamba [2008] UKHL 40 was not laying down a legal test when he suggested that requiring a Claimant to make an application for entry clearance would only "comparatively rarely" be proportionate in a case involving children. This being so, even if the Appellant was pregnant, and a child was to be born soon, the judge ought to have given consideration to whether the Appellant upon return to India could obtain entry clearance. Failure to do so was a material error of law.
4. On 14th November 2016, permission to appeal was granted by the Tribunal on the basis that the judge did not refer to the legitimate aim of the maintenance of an effective immigration control and accordingly it was arguable that she failed to attach sufficient weight to this consideration.
5. On 14th December 2016, a Rule 24 response was entered by the Appellant's representatives who pointed out that the judge had found as a fact that it was not reasonable to expect the Appellant to make an application from abroad claiming that she was pregnant and she needed the support of her husband, who was permanently settled in this country. The judge was entitled to come to this finding and was entitled to hold that it would be disproportionate to expect the Appellant in those circumstances to return to India. The judge did refer to the legitimate aim of the maintenance of an effective immigration control and this is adequately dealt with at paragraph 29 of the determination. She also referred to Section 117B of the 2002 Act which sets out the public interest considerations. There was no error of law.
6. At the hearing before me on 30th January 2017, Mr Jarvis submitted that the judge had fallen into error in other respects. For example, as she had stated (at paragraph 27) that,
"Whilst I accept that there would be hardships faced by both of them if they returned to India, absent any risk to them, such hardships are not insurmountable. They are the same hardships any couple would face on relocation to another country. I cannot find that there are insurmountable obstacles to their continuing family life in India ...."
7. Given this finding, it was difficult to see how the judge had then concluded that it was disproportionate to expect the Appellant, or the Appellant and her husband, to return to India in order for her to make an application to re-enter as a spouse, especially given the public interest considerations in favour of immigration control. Moreover, no child was as yet born to her, and the existing position before the judge was that the Appellant was not with a child. In these circumstances, the case of Hayat [2012] EWCA Civ 1054 governed insofar as paragraph 50 in that case laid down three propositions.
8. First, "That as persons only permitted to be temporarily in the UK, neither the applicant nor his wife had any legitimate expectation of a right to remain." The second consideration was, "That the family life could continue ..., although the wife would for obvious reasons not wish to return". There is also a third consideration, namely, that "Any period of separation would be short". As the Court of Appeal had stated in that case, "These were all proper considerations to weigh in the balance when considering the merits of the Article 8 claim" (paragraph 51). The judge had failed to do so. The fact that the Appellant had tried to comply with the Immigration Rules was no reason for allowing the appeal on the basis of Article 8 and of the intended need for the Appellant to return home and to apply for entry clearance from there.
9. In fact, on the basis of what had been said in Hayat by the Court of Appeal, even if the child had been born, it would have been perfectly reasonable to expect the Appellant to return simply in order to make an entry clearance application from India.
10. Finally, as far as the case of Chen was concerned this was authority for the proposition that Appendix FM does not include consideration of the question whether it would be disproportionate to expect an individual to return to his home country to make an entry clearance application to rejoin family members in the UK. There may be cases in which there are insurmountable obstacles to family life being enjoyed outside the UK but where temporary separation to enable an individual to make an application for entry clearance may be disproportionate.
11. For his part, Mr Layne submitted that Judge Gill did give proper consideration to the Section 117B provision that referred to the public interest in favour of immigration control. The fact was that there was a finding by the judge that the Appellant could not return to India in her condition of imminently giving birth (see paragraphs 30 to 31). If her husband went with her he would have to fold up his business and he would not be able to then comply with the financial requirements. Finally the citation of Hayat by Mr Jarvis was selected because there were provisions in that judgment that wholly assisted the Appellant.
No Error of Law
12. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law such that it falls to be set aside. This is a case where the judge does reject the appeal on the basis of the Immigration Rules, and of that there can be no criticism, and none is made. Insofar as there is a criticism of the judge in having allowed the appeal under Article 8, it is unfounded because the judge does refer to the legitimate public aim of immigration control at paragraph 29 of the determination setting out very carefully the relevant public interest considerations in terms of the economic interest of the UK, the fact that financial independence is a neutral consideration, and that little weight is to be given to a private life or a relationship with a qualifying partner that is established by a person at a time when they are in the UK unlawfully.
13. Where the judge does allow the appeal, however, is in relation to the Court of Appeal judgment in Hayat [2012] EWCA Civ 1054. As she states,
"The only factor that now weighed in the proportionality balance in favour of the Respondent was a public policy consideration requiring the Appellant to leave the UK and make an application from abroad, which was an aspect of immigration control. The question was, was there good reason to require her to make an application from abroad?"
14. The judge went on to say that, at the time that the application was made the Respondent could have been so justified but the Appellant's current circumstances were different. As the judge recorded, "She was pregnant and that the delivery date given, it was not clear whether she would be permitted to fly" (paragraph 30) and the judge accepted this contention.
15. From thereon she proceeded to conclude that,
"The Appellant is pregnant and it is a time when she and her partner will want to be together for the birth of their child; and, were she to return to India at this time, to make an out of country application, she could not return to her family and would be without support at a difficult time for her".
16. The judge did then also give consideration to the Sponsor returning with her, in order to enable her to make an out of country application, but then found that, "He is in fact employed in the UK and, on the balance of probabilities, he is unlikely to be able to take between one and three months away from work or leave to go with her" (paragraph 31).
17. These are considerations that the judge could reasonably have regard to in considering how the balance of considerations fell in the assessment of the proportionality of the decision. In the case of Hayat, the principles are summarised so as to point to the proposition that where Article 8 is engaged, it will be a disproportionate interference with family or private life to enforce such a policy unless there is a sensible reason for doing so. However, "Whether it is sensible to enforce that policy will necessarily be fact sensitive."
18. In Chikwamba Lord Brown identified certain potentially relevant factors and, "They will include the prospective length and degree of disruption of family life whether other members of the family are settled in the UK" (see paragraph 30(b) to (c)) of Hayat. For all these reasons, the decision of Judge Robertson was entirely consistent with the settled cases on this issue, and consistent with the Court of Appeal decision in Hayat. The findings that she made were open to her and it cannot be said that she fell into error.
Notice of Decision
19. There is no material error of law in the original judge's decision. The determination shall stand.
20. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 7th February 2017