Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA387462014

THE IMMIGRATION ACTS

Heard at: Manchester
Determination Promulgated
On: 27th May 2016
On : 16th June 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant
and

Nahida Khatoon
(no anonymity direction made)
Respondent

Representation:
For the Appellant: Mr McVeety, Senior Home Office Presenting Officer
For the Respondent: Mr Patel, KG Solicitors

DETERMINATION AND REASONS

1. The Respondent is a national of India born on the 23rd May 1977. On the 14th April 2015 the First-tier Tribunal (Judge Davies) allowed her appeal against a decision to refuse to vary her leave to remain and to remove her from the United Kingdom under s47 of the Nationality and Immigration Act 1999. The Secretary of State now her permission to appeal against that decision.

The Matter in Issue

2. The question raised in this appeal is whether the First-tier Tribunal was entitled to allow as it did Ms Khatoon's appeal on human rights grounds. She could not qualify for leave to remain as a spouse under the immigration rules and the Secretary of State now contends that the appeal could only be allowed in very limited circumstances, which the First-tier Tribunal failed to identify. Reliance is placed on SS (Congo) [2015] EWCA Civ 387.

The Factual Matrix

3. The undisputed facts are that Ms Khatoon married her British husband in April 1996. On the 13th November 1996 she was granted a visa as a spouse (with reference to paragraph 281 of the 'old Rules') and she came to live in the United Kingdom with him. Sometime thereafter she was granted indefinite leave to remain. Her first child was born in the UK in 1997. The family were supported by her husband who worked for HSBC.

4. In 2001 HSBC offered to transfer Ms Khatoon's husband to the United Arab Emirates. The family moved to Dubai. In 2002 their second child was born. In 2004 her husband left HSBC and set up his own property business. Their third child was born in 2006. In 2008 the property market crashed and Ms Khatoon's husband "lost everything". Although he tried for a period to re-coup his losses, the family decided that their only option was to return to the UK. It was at this point that Ms Khatoon came to understand that her ILR had lapsed because she had been out of the United Kingdom for more than two years. She made a successful application for a multiple entry visit visa and the family all came back to the country in August 2013. In February 2014 (before she had overstayed her six months maximum permitted stay) she went back to Dubai, and after a week re-entered the United Kingdom in accordance with the terms of her visit visa.

5. Ms Khatoon made an application for leave to remain on human rights grounds on the 18th August 2014, just a few days before her second period of six months' visitors leave came to an end.

The Secretary of State's Decision

6. The application was refused by way of letter dated the 6th October 2014. Ms Khatoon could not meet the 'eligibility' requirements in Appendix FM because she was a visitor. There would therefore be no consideration of paragraph EX.1 since the application fell at the first hurdle. The author of the refusal gave consideration to whether there were any exceptional circumstances such that leave should be granted 'outside of the Rules'. Regard was had to the fact that Ms Khatoon's three British children were now all living in the UK and attending school here, but the author concluded: "you would be returning to India with your children and would be able to support them whilst they became used to living there and enjoying their full rights as citizens of India?..you and your children would return to India as a family unit and continue to enjoy your family life together".

The Appeal to the First-tier Tribunal

7. Ms Khatoon appealed and on the 14th April 2015 the appeal came before Judge M Davies in Manchester. Ms Khatoon and her husband both attended and gave oral evidence. The Presenting Officer was Mr Hunt. The Record of Proceedings is brief, no doubt for the reason recorded in clear terms:

"Mr H does not wish to cross examine either the A or her husband and simply relies on the refusal"

8. The First-tier Tribunal went on to find that the Secretary of State had failed to consider the background in this case, including the fact that she had previously held ILR. Given that background it would be "wholly unjust" to expect her to return to India with her family or alternatively to separate her from her family in order to travel to India alone in order to make an application for entry clearance. The Tribunal had regard to evidence before it which indicated that Ms Khatoon's husband was able to meet the financial requirements set out in the Immigration Rules. There would be an "unjustifiable hardship" to the family if the decision was to stand. If she had to go back to India there would be a "substantial delay" before she could rejoin her children and husband, and no legitimate purpose would be served by requiring her to do so. Having then set out the Razgar framework for consideration of Article 8 outside of the rules, and directing itself to the principles set out is s117B of the Nationality, Immigration and Asylum Act 2002, the Tribunal allowed the appeal.

The Secretary of State's Appeal

9. The Secretary of State's grounds of appeal are that the Tribunal has used Article 8 as a "general dispensing power" and that it erred in concluding, without an evidential basis for doing so, that there would be a "substantial delay" if Ms Khatoon were to travel to India and re-apply for entry as a spouse. Mr McVeety placed reliance on SS (Congo) and the decision in R (on the application of Chen) v Secretary of State for the Home Department (Appendix FM - Chikwamba - temporary separation - proportionality) IJR [2015] UKUT 00189 (IAC). He submitted that there was no basis upon which the Tribunal could have concluded that there would be a substantial delay and that the proper disposal of this matter turned on whether it was proportionate to expect Ms Khatoon to travel to India without her family and make a proper application for leave to enter as a spouse.

My Findings

10. When the matter came before the First-tier Tribunal it was the Secretary of State's case that the entire family should go to India and live there with Ms Khatoon. The refusal letter points out that the children would be able to attend school there and "enjoy their full rights as citizens of India". Although not now relevant I would observe that this was a wholly misconceived approach. The children could not enjoy citizen rights in India for the simple reason that they are not in fact nationals of that country. Nor would they be entitled to such unless they renounced their British citizenship, India applying a prohibition on dual nationality. This was the Secretary of State's case before the Tribunal. It is clear from the Record of Proceedings, and indeed the determination, that the HOPO on the day did not seek to advance any alternative case (nor arguably any case at all). Specifically there was no attempt to persuade the Tribunal that this appeal should be dismissed applying Chen.

11. It is therefore somewhat surprising that the Secretary of State now appeals on the grounds that the Tribunal erred in its consideration of that very same question. The Secretary of State, having lost her appeal on the matters that she raised, now seeks to argue the case on an entirely different basis. I am not therefore minded to address Chen at all, but for the sake of completeness I do so.

12. Complaint is made that there was no evidential foundation for the finding that there would be a substantial delay. Although he did not have any evidence to hand Mr McVeety submitted that checks could have been undertaken with the relevant visa post and that they might have shown settlement visas being issued in as little as a few weeks. Setting aside the speculative nature of that argument, I find as follows. This appeal concerned, at its heart, the impact of the decision on three British children. These were children who had already been uprooted from their home in the UAE and had had to readjust to life in the UK. It was not in issue that their mother was the primary carer. The evidence before the First-tier Tribunal indicated that their father was working, and also that he was suffering from depression, no doubt as a consequence of having "lost everything". These were the matters which led to the First-tier Tribunal's conclusion that there would be "unjustifiable hardship" for the children to be separated from their mother. It mattered not whether the delay was of "only" a few weeks. There would be uncertainty about whether she could come back at all, and this would of course be stressful for the family. In those circumstances any period of time would be considered "substantial" by the family themselves. The Tribunal was not making an objective assessment in the absence of evidence; it was making a point about how the subjective impact of the separation. It was a finding that the Tribunal was entitled to reach on the evidence before it.

13. As to the ground that the Tribunal used Article 8 as a "general dispensing power" it is perhaps clear from the foregoing that I do not find this to be made out. Appendix FM is not a complete code. There is for instance no provision for a married mother to seek to remain in the UK as a parent, the Rules for parents being confined to those who have sole caring responsibility. This is an obvious omission. The best interests, and Article 8 family lives of children, plainly turn on the parent who is their primary carer (particularly where their other parent might be largely absent because he works, or is suffering from a mental illness). There can therefore be no rational argument that the Tribunal was not entitled to proceed to consider this matter 'outside of the Rules'. The Tribunal did not treat Article 8 as a "general dispensing power". It looked at the facts, considered the submissions made by the Secretary of State (confined to the refusal letter) and reached a decision open to it on the evidence.

Decisions

14. The decision of the First-tier Tribunal does not contain any error such that it should be set aside. The decision is upheld.

15. I was not asked to make a direction for anonymity and in the circumstances I see no reason to do so.

Upper Tribunal Judge Bruce
10th June 2016