The decision

Upper Tribunal
(Immigration and Asylum Chamber)


Heard in Birmingham
Determination Promulgated
On 1 August 2013
On 2 August 2013


upper tribunal judge pitt


raghvir chand





For the Appellant: Mr Franco instructed by Tramboo & Co.
For the Respondent: Mr Deller, Senior Home Office Presenting Officer


1. This appeal is against the decision dated 20 June 2013 of First-tier Tribunal Judge Chohan which refused the appellant's appeal brought under Article 8 of the ECHR.
2. The appellant is a citizen of India and was born on 24 August 1968. The background to this matter is that the appellant came to the UK on 1 October 1999 as a visitor. His leave as a visitor expired on 1 April 2000. He has been an overstayer ever since. In 2004 he met Ms Balwinderjit Kaur and formed a relationship with her. They began to cohabit in 2010.
3. Judge Chohan accepted at [10] that the appellant and Ms Kaur had a family life and that the appellant had established a private life in the 13 years that he had been in the UK. He correctly indicated at the end of that paragraph that the appeal therefore came down to the proportionality assessment.
4. Judge Chohan found against the appellant in the proportionality assessment. At [13] he set out an accurate summary of the case of Chikwamba v SSHD [2008] UKHL 40. At [14] he concluded that it was proportionate to expect this appellant to return to India to seek entry clearance. In reaching that conclusion he again acknowledged the appellant's relationship with Ms Kaur had endured for "a significant period of time" and that the appellant had been in the UK for over 13 years. He found that the fact of the appellant entering into the relationship with Ms Kaur at a time when he was an overstayer and when "he and his partner were fully aware that his status in the United Kingdom as somewhat precarious" made it proportionate for the appellant to return to India, however. He accepted that there would be "some disruption and interference in his family life but it would be of a temporary nature pending his entry clearance application". There were no minors involved and Ms Kaur could decide whether she wanted to go to India with the appellant while he made his entry clearance application. At [15], Judge Chohan acknowledged that the appellant had a substantial private life but also noted that he had established that private life whilst knowing that he was an overstayer, that his private life in the UK was to a certain extent within the Indian community here and that he had still spent the majority of his life in India. It was proportionate to expect him to be able to enjoy a private life of similar nature in India, therefore.
5. I did not find an error in the reasoning or conclusion of Judge Chohan. As clarified by SSHD v Hayat [2012] EWCA Civ 1054, the case of Chikwamba is not authority for it always being disproportionate to expect an individual to return home to regularise his status where he otherwise meets the requirements of the Immigration Rules. Following [30] of Hayat, "there has to be a sensible reason for doing so" not a blanket application of the principle. Deciding if there is a "sensible reason" will be "fact sensitive".
6. Judge Chohan conducted a fact sensitive assessment of whether this appellant could be expected to return to seek entry clearance. At [14] he assessed the period of separation and absence from the UK as "temporary" and "not of a serious nature" and there was nothing in the evidence before him to suggest otherwise. Mr Franco submitted that Judge Chohan erred in not considering whether the appellant could meet the entry clearance requirements if he returned to India and, thus, his absence from the UK be rather longer than suggested (or even permanent). I found that argument rather odd. The appellant being unable to meet immigration law is the starting point in the Article 8 assessment. It is the factor that attracts weight on the respondent's side of the balance as it is in the public interest for there to be an effective immigration system. I found it difficult to see how the appellant being unable to meet the law as set out in the relevant entry clearance requirements could be something that would strengthen his case under Article 8. In any event, Mr Franco was not in a position to specify which entry clearance requirements in force as at the date of the hearing before Judge Chohan could not be met, his submissions focusing on previous versions of the Immigration Rules.
7. Where Judge Chohan's decision that the appellant could be expected to return to India without Ms Kaur is sound, any challenge to the alternative situation assessed, that of Ms Kaur returning with the appellant either temporarily or permanently cannot be material.
8. As for the other grounds, there is no dispute that the appellant lived with Ms Kaur only for the last 3 years, that is, from 2010 onwards. Her two children became adults in 2003 and 2005 respectively. Even if they do regard the appellant as a father figure, something that would seem not entirely straightforward given their ages when their mother met the appellant, this does not automatically mean that their relationship, as adults, with the appellant is one of such dependency or closeness that it amounts to a family life for the purposes of Article 8. There was no evidence before Judge Chohan of such emotional ties or dependency that might have led him to find family life between the appellant and Ms Kaur's children.
9. It was also argued that insufficient evidence relating to the children of Ms Kaur and other family members was taken as the appeal had been adjourned by a week at short notice and a number of witnesses could not attend. There was nothing to indicate that Judge Chohan was asked to take this into account or adjourn the hearing again in order for others to attend, however. I was not taken to anything that suggested that evidence of any materiality would have been adduced by further witnesses given that Judge Chohan took into account the witness statements that were before him and did hear from one of Ms Kaur's children.
10. I found it difficult to see any relevance in the evidence relating to the appellant's ex-wife in India being abused by a later partner and did not find that it could amount to something showing a material error of law in the determination of Judge Chohan. In so far as it might lead to the appellant being unable to meet entry clearance requirements (something I was entirely unwilling to accept had been established) I have set out my view above.
11. The appellant's application was never put on the basis that he could meet the substantive requirements of paragraph 295D of the Immigration Rules. His application was outside the Immigration Rules and made under Article 8 of the ECHR. This was conceded before Judge Chohan, recorded at [3]. Mr Franco seemed to submit that paragraph 6 (vii) of the grounds should be read as meaning that the Tribunal had jurisdiction over the respondent's residual discretion to allow any application, whether or not it met the Immigration Rules. If that is what was intended by paragraph 6 (vii), it is misconceived as the Tribunal does not have such a jurisdiction.
12. The appellant sought to have weight placed on his side of the balance because the respondent did not take steps to locate and remove him earlier and because he voluntarily brought himself to the attention of the respondent without waiting for 14 years of residence. That position is also misconceived. The appellant was responsible for the illegality of his presence in the UK and that fell to be weighed against him. The respondent's inability to locate and remove him earlier does not detract from the extent of his illegal actions and is not something that can weight in his favour. It was the appellant's decision to apply to the respondent when he did. He cannot now seek to benefit from the fact that he might have chosen to remain here illegally even longer, waiting until 14 years had passed. It would have been a vain wait, in any event, as, in any event, the law in this area changed on 9 July 2013 before he could have established 14 years residence.
13. Mr Franco conceded at the hearing that paragraphs 6 (v) and 6 (vi) were no longer relied on.
14. For all of these reasons, I did not find that the decision of the First-tier Tribunal disclosed a material error on a point of law.

15. The decision of the First-tier Tribunal does not disclose an error on a point of law and shall stand.

Signed Date: 1 August 2013
Upper Tribunal Judge Pitt