Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA018032015

THE IMMIGRATION ACTS

At Field House
On 6th June 2016
Decision and Reasons Promulgated
On 15th June 2016

Before
DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY
Between

MRS MARYA NASRI
(NO ANONYMITY DIRECTION MADE)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J.Jaigri of Crown and Mehria, Solicitors.
For the Respondent: Mr Duffy, Home Office Presenting Officer.
DECISION AND REASONS
Introduction

1. Although it is the respondent who is appealing I will continue to refer the parties as they were in the First-tier Tribunal for the sake of convenience.

2. The appellant is a national of Afghanistan. She is married to Mr.Wahidullah Nasri, her sponsor. He came from Afghanistan as a child and now has British nationality. She applied for entry clearance to join her husband and this was refused on the basis her sponsor had not met the evidential requirements of appendix FM-SE.

3. Their appeal was heard before Judge of the First-tier Tribunal Rothwell. The appellant was represented by Counsel who accepted that the immigration rules were not met .Her sponsor had two sources of income from employment. In one of these he was paid in cash and had not provided the necessary bank statements to show the lodgement of his wages.

4. The appeal was argued on the basis of article 8. The appellant and sponsor are first cousins. They married in 2013 in Afghanistan. The appellant lives with her mother and uncle in Kabul. The sponsor had been with his wife for two periods, each lasting three weeks. The security situation in Afghanistan was raised and there was reference to difficulties for the appellant trying to make a fresh application as she would have to travel by road with her uncle into Pakistan to Islamabad.

5. The First-tier judge found the sponsor to be credible and accepted that the financial requirements were fulfilled but not the evidential requirements. It was accepted on behalf of the appellant that the appeal could not succeed under the rules because of this.

6. The judge felt the circumstances were such that it was appropriate to consider article 8. The judge found that family life existed and that the marriage was genuine and subsisting. The judge pointed out that the sponsor was a British citizen settled in the United Kingdom and accepted that he was fearful of going to Afghanistan because of the violence there and the possibility of kidnap. Adopting the Razgar sequential approach the judge progressed to the question of proportionality, noting the legitimate aim of the respondent was immigration control. The judge found as a fact that although not evidenced as required the financial requirements were de facto met and the appellant would not be a burden on public funds.

7. At paragraph 20 the judge described the situation as one of a near miss and this could be taken into account when considering proportionality. The judge did say however if this was the only factor the appropriate step would be for a fresh application with the correct evidential requirements being met. However the judge was influenced by the security risks involved.

8. The judge accepted the appellant would need to apply from Islamabad and the journey by road would be dangerous. She would need to be accompanied by a male relative. It was said that her uncle cannot obtain a passport and there was reference to a bombing attack on the airport in Afghanistan. At paragraph 22 the judge refers to the sponsor's evidence that he felt unsafe going to Afghanistan and referred to the Home Office advice about travel. On this basis the judge found the decision to be disproportionate and allowed the appeal under article 8 but not under the immigration rules.

9. The application for permission to appeal submitted that the near miss point was at best an adornment and not a basis in its own right to allow the appeal. Regarding the security risk, whilst the tribunal had found that the appellant would need a male companion in order to travel to Islamabad the reference to it having to be her uncle and a real risk of kidnapping en route amounted to conjecture. It was submitted that the sponsor could assist.

10. Permission to appeal the decision was granted to the respondent on the basis it was arguable that the judge's proportionality assessment was flawed. The risks for her travelling to Islamabad to make a fresh application did not arguably amount to compelling and exceptional circumstances.

11. Mr Duffy in opening the appeal suggested in fairness to the appellant she may be assisted by EX.1 in appendix FM .It was accepted her sponsor was a British citizen and the relationship was genuine and subsisting. The issue under EX.1 then was whether there were insurmountable obstacles to family life with her partner continuing outside the United Kingdom. He acknowledged the sponsor's concerns about safety in Afghanistan and the fact he had established a life here. If this assisted the appellant the appeal should have been allowed under the immigration rules as the financial requirements would not apply in this situation.

12. On reflection Mr Duffy felt EX.1 did not apply because this was an entry clearance application. He did acknoweledged that the security situation was a legitimate consideration and did not seek with any vigour to challenge the article 8 finding when this was factored in.

Consideration

13. The heading of EX .1 of Appendix FM is `Exceptions to certain eligibility requirements for leave to remain ?'There are divisions within Appendix FM between eligibility for entry clearance; for limited leave to remain; and for indefinite leave to remain. Thus, the construction of appendix FM suggests EX.1 does not apply to entry clearance cases. As found in Sabir (Appendix FM - EX.1 not free standing) [2014] UKUT 00063 (IAC) EX.1 is "parasitic" on a Rule within Appendix FM that otherwise grants leave to remain.

14. The judge dismissed the appeal under the immigration rules and was correct in law in doing so. The judge did allow the appeal under article 8 grounds. It is notable that the judge found as a fact that the sponsor de facto met the financial requirements but have failed to produce the required evidence under appendix FM-SE. The judge described this as a near miss situation. Article 8 is not a general dispensing power and the judge recognised this by indicating that had this been the only factor the appeal would not have succeeded. However the judge was influenced by the security situation in Afghanistan. The emphasis in the decision was on the practical difficulties of making a new application given the security situation in Afghanistan. The need for a male chaperone was stated as were the difficulties for the appellant's uncle to accompany her. The decision also referred to the appellant's husband's fear in travelling to Afghanistan. Furthermore, the decision indicates the judge took into account the public interest in immigration control. The factors raised were relevant considerations in a proportionality assessment. On the facts found it was open to Judge of the First-tier Tribunal Rothwell to dismiss the appeal under the immigration rules and to allow it on article 8 grounds. Consequently the decision shall stand.

Decision

The decision of Judge of the First-tier tribunal Rothwell dismissing the appeal under the immigration rules and allowing it under article 8 does not materially err in law and shall stand.

Deputy Upper Tribunal Judge Farrelly