Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/06532/2015
and OA/07431/2015

THE IMMIGRATION ACTS

Heard at: Liverpool
Decision and Reasons Promulgated
On: 18 April 2017
On: 21 April 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MW
EW
ANONYMITY DIRECTION MADE
Respondents

Representation
For the appellant: Ms Frantzis (Counsel)
For the respondent: Mr Harrison (Senior Home Office Presenting Officer)

DECISION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the respondents.

1. The appellant (‘the SSHD’) has appealed against a decision of the First-tier Tribunal (‘FTT’) dated 13 October 2016 in which it allowed the respondents’ appeals on human rights grounds. The first respondent, MW, a citizen of Pakistan, is the spouse of her British citizen sponsor, who is settled in the United Kingdom. The second respondent, EW, also a citizen of Pakistan, is their first child. By the time of the FTT hearing the first respondent and sponsor had two additional children (and now have one more).

Procedural history

2. As long ago as July 2011 the respondents applied for entry clearance to join their British citizen spouse / father in the United Kingdom. There is a long and complex procedural history to this case. There is no need for this to be repeated here. For various reasons fully explained by the FTT [5-11], the respondents appealed against decisions of the SSHD remade on 3 March 2015. The substance of those decisions is set out in detail at [25]. The only matter to note from these decisions for the purposes of this appeal is that the SSHD refused the applications for one reason only: the first respondent failed to disclose that when she was a child she made an in-country application and in the premises paragraph 320(7A) applied. The SSHD did not refuse the applications for any other reason.

First-tier Tribunal decision

3. The FTT rejected the submission advanced on the respondent’s behalf that the SSHD’s decisions were not in accordance with the law in that they failed to apply a previous FTT decision dated 24 January 2014, in which Judge Bruce allowed the respondents’ appeals [39-45]. There has been no cross-appeal or rule 24 notice submitted in relation to this issue.

4. The FTT agreed with many of Judge Bruce’s findings and replicated these in full at [50]. The FTT concluded that the refusal of entry clearance to the respondents would constitute a breach of Article 8 of the ECHR. The grounds of appeal suggest that inadequate reasons were provided for this conclusion. Permission to appeal was granted by FTT Judge Parker.

Hearing

5. Mr Harrison acknowledged that the grounds were not particular clear and it was difficult to identify any particularised alleged error of law within them. He therefore invited me to consider the reasons provided by Judge Parker for granting permission to appeal.

6. After hearing from both representatives I indicated that the FTT decision did not contain a material error of law. I now give my reasons for this.

Error of law discussion

7. Mr Harrison submitted that there were four potential alleged errors of law raised in Judge Parker’s observations. After considering the matter further, Mr Harrison only relied upon one of these. For the sake of completeness I address each potential matter.

No evidence to support factual findings

8. Judge Parker observed that “no evidence was cited for findings regarding English language or maintenance and accommodation”. Mr Harrison accepted that at the date of the relevant decision under appeal, the SSHD did not dispute that the respondents met all the requirements of the Immigration Rules, save for 320(7A). It follows that it was accepted that the financial, accommodation and English language requirements were met. The FTT expressly stated this [58(iii)] and this has not been the subject of any criticism in the grounds of appeal or before me. There was no obligation upon the FTT to cite evidence to support matters that were not in dispute.

9. Mr Harrison accepted that the reference to ‘Nigeria’ [58(ii)] is a typographical error that should be read as ‘Pakistan’. He agreed that the English language ability of the first respondent had not been disputed and did not advance any further concerns regarding this.

No weight given to deception in proportionality exercise

10. Mr Harrison accepted that this observation is not well founded and did not place any reliance upon it. He was correct to do so. When the decision is read as a whole it is very clear that the FTT had the first respondent’s deception fully in mind and attached weight to it when undertaking the proportionality balancing exercise – see [50(v)-(vi)] and [60-62]. The FTT expressly found [58(i)] that if there were no children in the family, the first respondent’s deception was such that the refusal of entry clearance would be proportionate. The FTT acknowledged that where deception is employed there would need to be very powerful reasons why entry clearance should be granted [50(v)]. The FTT was also entitled to endorse the findings it did regarding the lack of blame on the part of the sponsor and the children [50(i)] and the nature and extent of the deception used [50(vi)].

Best interests of second respondent

11. Mr Harrison accepted that the reality of the situation was that if it was in the best interests of the second respondent to be living with both parents as a family unit, the same logic applied to all the children, and Judge Parker’s observation that there might be some separation of the siblings was difficult to understand and not relied upon.

Relocation to Pakistan

12. Mr Harrison submitted that it was difficult to see why the sponsor’s relocation to Pakistan would cause any particular strain on family life in light of the strain already experienced over many years as a result of the separation of the sponsor from the remaining members of the family. The FTT found that it would be unreasonable to expect the sponsor to reside in Pakistan - see [50(iv)] and [55]. That factual finding might be described as generous but it is not irrational. The FTT was entitled to find that the sponsor agreed to marry the first respondent with the justified expectation (as all the substantive requirements of the Immigration Rules relating to spouses could be met) that his wife would be able to join him in the United Kingdom where he conducts his business and where he enjoys a long standing private life.

13. Contrary to the submissions in the grounds of appeal, the FTT has not simply accepted the choice of the couple to live in the United Kingdom rather than Pakistan. At [50(iv)] the FTT correctly directed itself in this regard.

Final matters

14. In my judgment the FTT carefully considered all the relevant evidence and either endorsed or made findings of fact entirely open to it. The FTT clearly balanced the first respondent’s deception against the undisputed fact that all requirements of the Immigration Rules have been met and the sponsor and his children played no role in that deception. Having done so the FTT was entitled to find that the refusal of entry clearance was disproportionate, for the reasons provided.

Decision

15. The decision of the First-tier Tribunal does not contain an error of law and is not set aside.

Signed: Ms Melanie Plimmer Dated: 19 April 2017
Judge of the Upper Tribunal