The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29270/2012


Heard at Newport
Determination Promulgated
On 24 June 2013
On 15 July 2013









For the Appellant: Mr J Al-Khayat instructed by Turpin & Miller, Solicitors
For the Respondent: Mr K Hibbs, Home Office Presenting Officer

1. The appellant is a citizen of Nepal who was born on 13 January 1985. He arrived in the United Kingdom as a student on 25 September 2009 with leave valid until 17 October 2011. On 18 October 2011 he applied for further leave to remain and that application was refused on 9 January 2012. On 13 March 2012, the appellant made a further application for leave to remain relying on Article 8 of the ECHR. That application was subsequently certified by the Secretary of State as clearly unfounded on 14 March 2012. On 27 March 2012, the appellant lodged an application for judicial review of that decision and on 24 April 2012 the Secretary of State withdrew her decision of 14 March 2012 including the certification. Thereafter, the Secretary of State considered the appellant’s further representation to remain in the UK under Article 8 based upon his relationship with a British citizen, Ms Emily Gibbons. In a letter dated 4 December 2012, the Secretary of State refused the appellant’s application for further leave on that basis and on 6 December 2012 made a decision to remove him to Nepal by way of directions as an overstayer under s.10 of the Immigration and Asylum Act 1999.
2. The appellant appealed to the First-tier Tribunal. In a determination dated 12 March 2013, Judge Whiting dismissed the appellant’s appeal under para 276ADE and Appendix FM and Section EX1 of the Immigration Rules (HC 395 as amended). The Judge also found that the respondent’s decision did not breach Article 8 of the ECHR.
3. The appellant sought permission to appeal to the Upper Tribunal. The grounds prepared by the appellant himself repeat his claim based upon his relationship and asserts that it would be a breach of Article 8 to send him back to Nepal.
4. On 4 April 2013, the First-tier Tribunal (DJ Wilson) granted the appellant permission to appeal to the Upper Tribunal on the following grounds:
“2. The appellant is now unrepresented. I grant leave as I consider it arguable the Judge’s assumption that a settlement visa could be granted in due course ignores the fact that the partner is currently on minimum wage and thus could not foreseeably meet the appropriate income requirement. As this could impact on the proportionality assessment I grant leave.”
5. Thus, the appeal came before me.
6. At the hearing before the First-tier Tribunal, the Judge had both written statements and oral evidence from Emily Gibbons and also from her mother Wendy Taylor and her grandmother Daphne Hill. Emily Gibbons was born on 5 April 1995 and so was 17 and 10 months old at the date of the hearing. The evidence, which does not appear to have been challenged before the Judge and was accepted by him, was that the appellant and Emily Gibbons met in February 2011 and developed a friendship. Some months later the appellant began to stay with Ms Gibbons overnight. Ms Gibbons lives with her mother (Wendy Taylor) in a caravan in the grounds of the home of her grandmother, Daphne Hill. In August 2011, the appellant moved in with Emily Gibbons and her mother where he remained before being detained in February 2012 and where he has lived since his release on bail in April 2012. The Judge heard evidence about the close relationships that existed between Ms Gibbons and her mother and grandmother and also the appellant’s integration within that family unit. Ms Gibbons’ father left before she was born. Ms Gibbons gave evidence that the removal of the appellant from the UK would be devastating to her and that she could not follow him to Nepal because of the linguistic difficulties and because she would be unable to leave her family members with whom she had formed a close-knit unit, namely her mother and grandmother. Ms Gibbons is a full-time student and is financially supported by her family.
7. The evidence was that Ms Gibbons and the appellant intended to marry on 13 April 2012 and provisional arrangements had been made at the Bridgeport Register Office. However, that ceremony never took place because the appellant was detained. The appellant and Ms Gibbons were committed to marry but they realised that the immigration issues needed to be addressed first.
8. As regards the appellant’s situation in Nepal, the evidence was that his mother, father, brother and sister all resided in Nepal working on the family farm. He had another brother in Malaysia. He remained in contact with family members in Nepal and spoke to his sister every two or three days. He said that his family lived well off the farm by Nepalese standards. However, he said that he could not return to work on the family farm as it was a difficult economy in Nepal with political instability and not good marketing.
9. The Judge first dealt with the appellant’s claim under the Immigration Rules. As regards para 276ADE of the Rules the appellant, who had been in the UK for less than 20 years, needed to satisfy the requirement in para 276ADE(vi) that he has “no ties, including social, cultural or family) with the country to which he would have to go if required to leave the UK”. It was accepted before the Judge that the appellant could not satisfy this requirement as was, indeed, clear from his own evidence concerning his family in Nepal with whom he kept contact. Instead, the appellant relied upon his relationship with Ms Gibbons. Relevant to that issue under the Rules is whether the appellant fell within Section EX1(b) of Appendix FM which states:
“The applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.”
10. At para 35 of his determination, the Judge concluded that the appellant had failed to establish that there were “insurmountable obstacles” to Ms Gibbons accompanying him to Nepal. The Judge said this:
“35. It is clear from the foregoing recorded facts that the appellant has a supportive family in Nepal engaged in farming in which enterprise he was employed before entering the UK as a student. Ms Gibbons has had limited contact with his family members in Nepal and they appear supportive of their relationship. There is no reason to suppose that Ms Gibbons would be unable to relocate to Nepal and live there with the appellant should that be their mutual wish. Ms Gibbons currently occupies a mobile home together with her mother and the appellant situated in the grounds of her grandmother’s home. The appellant’s family enjoy a comfortable life measured by Nepalese standards. Ms Gibbons has a desire to remain in the UK and continue with her educational course. She does not wish to leave her mother and grandmother with whom she enjoys a close relationship. I find that in all the circumstances there are no insurmountable obstacles which would prevent Ms Gibbons accompanying the appellant to Nepal and there residing with him in continuance of their relationship, other than a desire to remain living in the UK.”
11. Neither the grounds of appeal nor Mr Al-Khayat in his submissions challenged the Judge’s adverse decision under the Immigration Rules and his conclusion that there were no “insurmountable obstacles” to Ms Gibbons accompanying the appellant. Instead, Mr Al-Khayat challenged the Judge’s decision in respect of Article 8 of the ECHR.
12. It was accepted before the Judge (see para 33 of his determination) that the appellant and Ms Gibbons had established family life in the UK and also that the appellant had established private life as a student and during his employment. At para 36, the Judge found that the respondent’s decision interfered with those rights and that therefore Article 8 was engaged.
13. At paras 37-40, the Judge referred to the cases of Chikwamba v SSHD [2008] UKHL 40 and Beoku-Betts v SSHD [2008] UKHL 39 and set out extracts from the cases of Hayat (Pakistan) v SSHD [2012] EWCA Civ 1054, Huang v SSHD [2007] UKHL11 and Y v Russia (Application No 20113/07) [2008] ECHR 1585.
14. Then, at paras 41-46, the Judge gave his reasons for concluding that Article 8 would not be breached as follows:
“41. The appellant’s representative’s skeleton argument submits that the appellant’s conjoined family life cannot reasonably be continued in Nepal. Both the appellant and Ms Gibbons and all other parties have been aware throughout that the relationship has been formed when the appellant possessed only limited student leave to remain and continued to develop after that leave expired. In such circumstances the continuation of family and private life in the United Kingdom was always precarious. It is not established that mere inconvenience, expense or linguistic, social or cultural difficulty suffices to show unreasonableness or disproportionality. Whilst Ms Gibbons will only achieve majority in April 2013 and has close family ties with her mother and grandmother in the UK, it is clear that couples do emigrate for personal reasons, leaving family members behind in their quest for life together. The prospect of accompanying the appellant to Nepal, leaving behind her family members, would clearly provide Ms Gibbons with a difficult choice. I note that there has been limited communication in English between the appellant’s family and Ms Gibbons and that the appellant’s family are engaged in farming and that the appellant’s family are supportive of their relationship. In those circumstances there exists a clear prospect of short term or long term support for her together with the appellant within the appellant’s family unit in Nepal.
42. In Chikwamba [2008] UKHL 40 the appellant’s husband was a refugee who could thus not be expected to return to Zimbabwe accompanying the appellant and the appellant could not be expected to leave her child behind if she were returned to Zimbabwe and that if the appellant were to be returned to Zimbabwe she would have every prospect of succeeding in an application made there for permission to re-enter and remain in this country with her husband. The facts of that case are very different from the present appeal. It was clear that the issue was essentially an issue of timing because if the claimant in Chikwamba’s case was returned to Zimbabwe, she would in due course be granted entry clearance. Whilst the appellant has been supported by Ms Gibbons mother and to a lesser extent by her grandmother whilst living with Ms Gibbons there has been no present attempt to demonstrate on behalf of the appellant that, if returned to Nepal, he would be able to meet the requirements of the Immigration Rules in relation to maintenance. The income and outgoings of Ms Taylor from her part-time employment making deliveries on behalf of the Cinnamons restaurant have not been quantified, with or without any other income, nor has any financial support from Ms Hill be identified. Whilst an individual may be able to survive for a period of time upon the goodwill of or handouts from others that history does not necessarily establish that the needs of the parties in respect of maintenance would equal the minimum standards required for the maintenance of a couple in the UK under the Rules. It is clearly a relevant matter when assessing proportionality in relation to the economic well-being of the country as part of the balancing exercise that a couple should demonstrate an ability to maintain themselves to the required minimum objective economic standard in the UK. That standard has not been demonstrated within the circumstances of this appeal and thus the clear prospect of a grant of entry clearance for the appellant from Nepal is absent.
43. As above noted Article 8 does not give a couple the right to choose their country of residence. The appellant and Ms Gibbons have been throughout aware of the precipitous nature of their relationship and the prospect that the appellant would have to return to Nepal.
44. If Ms Gibbons were not to accompany the appellant if required to return to Nepal there is a clear prospect she could seek employment either on completion of her current course in July 2013 or upon completion of any subsequent courses, leading to employment, in order to seek to meet the requirements for settlement by the appellant in the UK as a fiancée under the Immigration Rules if not otherwise met. Whilst such choice may involve delays or variable periods she has evinced a clear determination to remain supportive of the appellant should he be returned to Nepal. The prospect of financial assistance has been stated to be available from her family members to facilitate a visit by her to the appellant in Nepal in such circumstances if needs be.
45. If the appellant is able to satisfy the requirements of the extant Immigration Rules upon return to Nepal unaccompanied by Ms Gibbons then the length of their separation would be reasonably likely to be resolved between the current Nepal settlement visa processing times of 12-24 weeks. I take due cognizance of such prospective delay in those circumstances. If those circumstances obtained the period of decision would be relatively short.
46. I have above made and recorded reasoned findings in respect of component parts of the appellant’s application and appeal. Those findings mean that in balancing the rights of the parties against the public interest I find as a fact that the respondent has demonstrated that the interference with the conjoined parties Article 8 rights consequent upon the refusal is in all the circumstances proportionate to the legitimate public end sought to be achieved.”
15. Mr Al-Khayat accepted that the ground upon which permission to appeal had been granted by DJ Wilson could not be made out. That ground was that the Judge had arguably erred in law by failing to take into account that if the appellant returned to Nepal he was unlikely to be able to meet the requirements of the Immigration Rules given the financial circumstance of Ms Gibbons and the appellant. In fact, the Judge did take that into account in para 42 of his determination which I have set out above. There, he noted that Ms Gibbons was financially dependent on her family and had no earnings of her own as she was a student. In the penultimate sentence of para 42 the Judge noted that it was a relevant matter when assessing proportionality that:
“ A couple could demonstrate an ability to maintain themselves to the required minimum objective economic standard in the UK.”
16. Having said that, in the final sentence of para 42 the Judge stated that:
“That standard has not been demonstrated within the circumstances of this appeal and thus the clear prospect of a grant of entry clearance for the appellant from Nepal is absent.”
17. Consequently, as Mr Al-Khayat acknowledged, the Judge made a finding that the appellant, if he returned to Nepal, would not be able to establish the maintenance requirement of the Immigration Rules. At para 44, the Judge clearly considered the circumstances on the basis that Ms Gibbons would not accompany the appellant to Nepal and that, although they would not be able to meet the maintenance requirements of the Immigration Rules immediately, once she had completed her course there was at least a prospect that she could obtain employment with a view to the appellant meeting the requirements of the Rules.
18. For these reasons, the ground on which permission to appeal was granted is simply not made out. Judge Whiting did take into account in his proportionality assessment the fact that the appellant would not, at least until such time as Ms Gibbons obtained employment in the UK, be able to obtain entry clearance to return to the UK.
19. In the light of that, Mr Al-Khayat sought in his submissions to raise a number of points (not raised in the grounds of appeal) challenging the Judge’s decision under Article 8.
20. He submitted that the Judge had misdirected himself in applying a “insurmountable obstacles” test and also a test of ‘exceptionality’. He relied upon the Judge’s citation from the case of Y v Russia at para [140] where the Strasbourg Court specifically referred to the need to establish “insurmountable obstacles” and that only “in exceptional circumstances” would it be disproportionate to interfere with family life which was created at a time when the parties knew that the immigration status of one of them was “precarious” (see para [104] of Y v Russia).
21. In my judgement, there are two answers to Mr Al-Khayat’s submissions. First, reading the Judge’s determination carefully, he did not actually apply any of these tests. Apart from the Judge’s consideration of the appellant’s claim under the Immigration Rules, namely Section EX1(b) where the test of “insurmountable obstacles” is a requirement, there is no reference by the Judge to that test in his reasons at para 41-46 when reaching his findings in respect of Article 8. The only reference is in the quotation from Y v Russia at para [140]. Indeed at para 41 the Judge quotes the appellant’s skeleton argument that the appellant argued that “family life cannot reasonably be continued in Nepal”. That, of course, is the test adopted by the domestic courts in EB (Kosovo) v SSHD [2008] UKHL 41 (see especially Lord Bingham of Cornhill’s speech at [12] and in VW (Uganda) v SSHD [2009] EWCA Civ 5). Further, in Huang, the House of Lords made clear that there was no test of “exceptionality” that had to be satisfied before a breach of Article 8 could be established. At no point in the Judge’s reasoning in paras 41-46 did the Judge suggest that the appellant could only succeed under Article 8 if his circumstances were “exceptional”. In my judgement, the Judge applied the correct approach and found, in effect, that it was reasonable to expect Ms Gibbons to accompany the appellant to Nepal. However, in fact, the Judge dealt with the parties’ circumstances on the alternative basis (which put the appellant’s case at its highest) that Ms Gibbons did not accompany the appellant to Nepal (see paras 44 and 45). That is sufficient in itself for me to reject Mr Al-Khayat’s submissions on this issue.
22. But, there is a second reason for rejecting Mr Al-Khayat’s submissions which emerges from the recent case law. In R (Nagre) v SSHD [2013] EWHC 720 (Admin) Sales J at [47] sought to reconcile the apparent conflict between the Strasbourg Court’s language and that of the higher domestic court on the basis that EB (Kosovo) and VW (Uganda) had only stated that:
“An ‘insurmountable obstacle’ or ‘insuperable obstacle’ test was not the test to be applied under Article 8 in this sort of case, but that a wider assessment taking into account other potential relevant factors as well could be required.”
23. Likewise at [49] Sales J observed that the “test of exceptionality” was not in itself wrong providing that:
“’An overall assessment of the facts’ was made in assessing proportionality.”
24. I respectfully agree with what was said by Sales J in Nagre which was also the view of Burnett J in R (Kotecha) v SSHD [2011] EWHC 2070 (Admin) at [34]-[39].
25. On this basis, it would also be wrong to identify an error of law in the Judge’s decision based upon his reference to the Strasbourg Court’s terminology unless he has failed properly to assess all the relevant circumstances in carrying out the balancing exercise inherent in the issue of proportionality. It was that latter issue which was the subject of the bulk of Mr Al-Khayat’s submissions. I turn now to consider those.
26. First, Mr Al-Khayat submitted that the Judge was wrong, on the basis of the evidence, to state (at para 13) that:
“Their developing relationship through that period must always have been to both parties knowingly tenuous.”
27. The reference to “that period” is a reference to the time that the appellant had limited leave to remain and that, at the time he moved in with Ms Gibbons, he only had about two months of his leave remaining. The fact of the matter was that when the parties met in February 2011, the appellant only had limited leave to remain as a student. When he moved in with Ms Gibbon in August 2011 his leave was due to expire on 17 October 2011. That leave did, in fact, expire on that day and from 18 October 2011 the appellant has been in the UK without leave. As the Judge noted in para 13 itself:
“From meeting Ms Gibbons until deciding to live together both parties were aware that the appellant had no expectation of remaining in the UK”.
28. In my judgement, exception cannot be taken to that statement. It is correct. In these passages, the Judge was not suggesting that the appellant’s relationship with Ms Gibbons was other than genuine. He accepted it was. In stating that the parties’ developing relationship was “knowingly tenuous”, the Judge was no more than observing that the parties’ relationship was formed and developed during a time when they both knew that the appellant had no expectation of remaining in the UK unless, of course, he could satisfy the requirements of the Immigration Rules. That, of course, as the Judge found (and it is now not challenged), he could not do. That point is also made by the Judge at para 41 of his determination.
29. Secondly, Mr Al-Khayat criticised the Judge when he stated in the final sentence of paragraph 15 of his determination that the parties’ proposed marriage in April 2012 was
“solely an attempt to seek to persuade the respondent to permit the appellant [to] remain in the UK”.
30. Mr Al-Khayat submitted that that was not consistent with the evidence of the appellant and sponsor that they had intended to marry then but could not do so because the appellant was in detention and that there were good reasons why they did not do so thereafter.
31. At para 15 the Judge noted the appellant’s evidence that they were committed to marriage but, in the Judge’s words, “immigration issues needed to be addressed first”. Mr Al-Khayat submitted that the Judge had been wrong to make an adverse inference against, in particular, Ms Gibbons as she had offered in her evidence an explanation as to why they had not rearranged their marriage ceremony after April 2012. Mr Al-Khayat, who did not represent the appellant before the Judge, stated that his instructions were that the Judge had not accurately recorded the appellant’s evidence. Even if this is correct, and there are considerable difficulties with this argument in the absence of supporting documentation or evidence as to Ms Gibbons evidence before the Judge, this matter simply did not factor into the Judge’s reasons at paras 41-46 (set out above) for reaching his finding that the respondent’s decision was proportionate. The Judge did not doubt the genuineness of the parties’ relationship and made no adverse credibility findings against either. The Judge approached the issue of proportionality on the basis that Ms Gibbon would not accompany the appellant to Nepal and then considered the situation both on the basis that their separation would be short if the appellant could meet the requirements of the Rules (see para 45) but, (and this is important), more likely on the basis that their separation would be longer as he could not do so (at least currently) because he could not meet the maintenance requirements (see para 44).
32. In my judgement, the Judge fully considered the circumstances of the parties and Ms Gibbons’ family. The Judge was entitled to take into account that the parties’ relationship had been formed when the appellant’s immigration status was temporary and more recently, since October 2011, that the appellant has had no legal basis to remain in the UK under the Immigration Rules. The Judge was also properly entitled to take into account as an important aspect of the legitimate aim of the economic well-being of the country that the parties could not meet the maintenance requirements of the Rules. Taking those matters into account, it was not perverse or Wednesbury unreasonable for the Judge to find that the respondent’s decision was a proportionate interference with the parties’ Article 8 rights.
33. For these reasons, the Judge did not err in law in dismissing the appellant’s appeal under the Immigration Rules and Article 8 of the ECHR. The First-tier Tribunal’s decision to dismiss the appellant’s appeal stands.


A Grubb
Judge of the Upper Tribunal