Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/51010/2014

THE IMMIGRATION ACTS

Heard at Bradford
On 21st November 2016
Decision and Reasons Promulgated
On 22nd November 2016

Before

DEPUTY UPPER Tribunal JUDGE KELLY

Between

MR ZILE HUSANAIN
(anonymity not directed)
Appellant
and

the secretary of state for the home department
Respondent

Representation:
For the Appellant: Mr M Ali, Legal Representative
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal by the Secretary of State against the decision of Judge Chambers in which he allowed the appeal (for the second time) against refusal of Mr Zile Husanain's application for limited leave to remain in the United Kingdom as a spouse.
2. In a letter dated the 1st December 2014, the Secretary of State refused the application on the ground that the appellant had purported to rely upon his own earnings as evidence of his ability to meet the financial requirements under Appendix FM of the Immigration Rules. The application could not therefore succeed under the Rules because these permitted only the earnings of his British wife to be taken into account. It subsequently transpired, however, that the appellant had mistakenly referred to his wife's earning as his own.
3. In any event, as both Mr Ali and Mr McVeety agreed, the appellant's application was doomed to fail under the Immigration Rules because the sponsor had not at that time been employed for the minimum period of 6 months for which the appellant was required to provide evidence under Appendix FM-SE. The application was thus premature.
4. Judge Chambers first heard this appeal on the 3rd June 2015. On that occasion, the Presenting Officer made the point that is noted in the previous paragraph. However, Judge Chambers held that the Secretary of State's decision was incompatible with the right of the appellant and his wife to respect for private and family life under Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. In particular, he concluded that any application that the appellant may choose to make for entry clearance from Pakistan was likely to succeed, and that there was thus "little purpose in insisting upon that course" [paragraph 15].
5. In a decision promulgated on the 5th February 2016, Upper Tribunal Judge Hanson held that Judge Chambers had applied the incorrect legal test when considering the hypothetical separation of the parties pending an application for entry clearance, and that he had further erred in not applying the considerations contained within Section 117 of the Nationality, Immigration and Asylum Act 2002 to the facts of the case. He therefore remitted the appeal to Judge Chambers for re-determination.
6. In a decision promulgated on the 13th June 2016, Judge Chambers again allowed the appeal on the ground that the decision was incompatible with the appellant's rights under Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. On this occasion, however, he did so by looking at the matter through the prism of Section Ex of Appendix FM of the Immigration Rules, which represents the Secretary of State's view of the operation of Article 8 in family life cases. Having concluded that the appellant and his wife met those requirements, Judge Chambers decided that it was unnecessary "? to consider section 117 of the 2002 Act or (sic) Article 8 of the European Convention on Human Rights" [paragraph 8 of the decision].
7. Judge Chambers stated that on the facts of this appeal, "relocation would involve more than mere hardship or disruption", and that there would be "very serious obstacles" to family life continuing in Pakistan [paragraphs 5 and 6]. He did not however make any reference to the definition of "insurmountable obstacles" that is contained within Section Ex 2 of Appendix FM. That is to say, he did ask himself whether the "very significant difficulties" that would be faced by the applicant or his wife in continuing their family life together outside the UK could be overcome without entailing "very serious hardship for the applicant or their partner" [emphasis added]. It cannot therefore be assumed that he applied that test to the facts of the appeal.
8. However, even if it were the case that Judge Chambers had in mind the correct legal test, the whole tenor of his reasoning in paragraphs 5 and 6 suggests that he was considering the matter within the context of a forced application for entry clearance from abroad. That was not however an appropriate context within which to consider the application under Section EX.
9. The principles in Chikwamba v SSHD [2008] UKHL 40 and MA (Pakistan) v SSHD [2009] EWCA Civ 953 apply where the Immigration Rules do not permit an application to be made from within the United Kingdom and thus "insist" (to use the verb employed by Judge Chambers in his earlier decision) upon the application being made from abroad. Examples of this can be found in the prohibition upon an applicant seeking settlement whilst in the UK as a visitor (see E-LTRP.2.1 of Appendix FM) and the requirement for those seeking settlement as an adult dependent relative to be "outside the UK" (the combined effect of EC-DR.1.1(a) and E-ILDR.1.2). There is however no equivalent prohibition in the case of a person seeking to remain as the spouse of a British citizen (provided that they are not in the UK as a visitor) and neither was it suggested by the Secretary of State that the appellant was required to make the application from abroad when she gave her reasons for refusing his application. Indeed, as is pointed out in the grounds of appeal and was emphasised by Mr McVeety at the hearing, it would have been open to the appellant to make a further in-country application provided that he had made it within 28 days of the original refusal. It is likely that, had he done so, he would by that time have been in a position to meet the requirement of providing proof of his wife's earnings for a period of at least 6 months thus rendering these protracted appeal proceedings unnecessary.
10. There was thus no 'insistence' upon the appellant making an application from abroad. Indeed, the only matter upon which the Secretary of State had 'insisted' (as she was entitled to do) was that the appellant either comply with the financial requirements of the Immigration Rules, or show that he and his wife would not be in a position to overcome the difficulties they would face upon settlement in Pakistan without entailing "very serious hardship" to either or both of them. Judge Chambers' reasoning thus appears to have lost sight of the fundamental proposition that a State has the right to control the entry of non-nationals into its territory, and that the duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that county [Abdulaziz, Cabales and Balkandali v United Kingdom [1985] ECHR 7, at paragraph 67].
11. I am satisfied that both of the above errors of law were material to the outcome of the appeal. The effect upon the outcome of the appeal of applying a weaker test than that which the law required is self-evident. The effect of applying the legal test to an inappropriate factual scenario was also material. For example, whilst it may very well be said to constitute "very serious hardship" for the sponsor to give up her employment in the UK in order to accompany her husband to Pakistan pending the outcome of his application for entry clearance, that is less likely to be the case within the context of emigration with a view to permanent settlement in another country.
12. I did consider re-making the decision in this appeal for myself given that this is now the second time that it has been listed for hearing in the Upper Tribunal. Indeed, I would have done so had I not felt that further information was required from the appellant and the sponsor concerning their social, family and cultural ties to the UK and Pakistan respectively, and the fact that an appropriate interpreter had not been booked for the 'error of law hearing'. I could of course have adjourned the hearing until such time as an interpreter was available. However, given the infrequency with which I sit in the Upper Tribunal, this may well have resulted in unacceptable delay. With the agreement of both representatives, therefore, I have decided to remit this appeal for a second time for hearing at the Manchester Hearing Centre. On this occasion, however, it should be heard by a judge other than Judge Chambers.
Notice of Decision
13. The appeal of the Secretary of State is allowed and the matter is remitted to the First-tier Tribunal at Manchester in order for it to be re-made by any judge other than Judge Chambers.

Anonymity is not directed

Signed: David Kelly Date: 21st November 2016

Judge Kelly
Deputy Judge of the Upper Tribunal