OA/07274/2015

• Status of case: Unreported
• Hearing date: 7 Nov 2016
• Promulgation date: 21 Dec 2016
• Publication date: 18 Feb 2021
• Last updated on: 18 Feb 2021

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/07274/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 7 November 2016
On 21 December 2016



Before

UPPER TRIBUNAL JUDGE KOPIECZEK


Between

Entry Clearance Officer - Islamabad
Appellant
and

BW
(ANONYMITY DIRECTION MADE)
Respondent


Representation:
For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondent: Mr D Sellwood, Counsel instructed by Rashid & Rashid Solicitors


DECISION AND REASONS
1. The appellant in these proceedings is the Entry Clearance Officer ("ECO"). However, for convenience I refer to the parties as they were before the First-tier Tribunal ("FtT").
2. The appellant is a citizen of Afghanistan born on 17 May 1990. She applied for entry clearance as a spouse but that application was refused in a decision dated 17 March 2015.
3. The appellant's appeal against that decision came before First-tier Tribunal Judge Fletcher-Hill ("the FtJ") at a hearing on 26 January 2016. She allowed the appeal under Article 8 of the ECHR, but dismissed the appeal under the Immigration Rules.
4. The respondent's grounds of appeal in relation to her decision contend that the FtJ was wrong to allow the appeal in circumstances where the appellant did not meet the Immigration Rules, and where she could only have undertaken an Article 8 assessment where there were compelling circumstances not recognised by the Rules. The decision in Gulshan (Article 8 - new Rules - see correct Approach) [2013] UKUT 00640 (IAC) is relied on. It is argued that the FtJ did not identify such compelling circumstances.
5. It is further argued that the appellant had a further remedy which was to re-apply for entry clearance with the appropriate evidence in support of the application. This was a matter that the FtJ had failed to explore. It is argued that there were no circumstances which required consideration outside the Rules. Article 8 should not be used to circumvent the requirements of the Rules.
6. In submissions Mr Tufan also referred to the decision in AS (Somalia) v Secretary of State for the Home Department [2009] UKHL 32 to the effect that it was the date of decision that needed to be applied in consideration of the evidence, even under Article 8 of the ECHR. In addition, I was referred to Secretary of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387, and what is said to be the need for a higher threshold for compelling circumstances in entry clearance appeals. Although at [70] the FtJ had referred to the need for compelling circumstances not sufficiently recognised under the Rules, her conclusions in that respect are not reasoned. Furthermore, she had not taken into account the fact that the issue was to be judged by reference to the date of decision.
7. Mr Sellwood accepted that it was the date of decision which was the relevant date for consideration. However, the respondent has not pointed to any post-decision facts which the FtJ took into account and which she should not have done. Apart from the fact that the sponsor had now changed his employment, and that any new application would probably succeed the FtJ said, she had already concluded that there were compelling circumstances such as to enable her to allow the appeal. Those compelling circumstances were that family life was unsustainable in Afghanistan, in the light of the evidence to which she had earlier referred. The sponsor had been working as an interpreter in Afghanistan and threats had been made. There was also the fact that the appellant and the sponsor have a child who is a British citizen. Even if the FtJ had failed to recognise that it was the date of decision which was the relevant date even for Article 8 purposes, any error of law in that respect was not material because the outcome would have been the same.
8. It was further submitted that the criteria for entry clearance are not as exhaustive as the requirements for leave to remain under Article 8. The Article 8 assessment is therefore more at large. The entry clearance Rules are "less of a complete code". The decision in SS (Congo) does not therefore assist the respondent's arguments.
9. Mr Tufan referred to the fact that the sponsor had gone to Afghanistan and he and the appellant were living together until he returned to the UK in 2015. Furthermore, it was only the appellant that said that she had received threats. That was not something that the sponsor could know about.
Conclusions
10. The application for entry clearance as a partner was refused because the appellant was not able to meet the English language requirement of the Rules, because the ETS language certificate was not valid in that ETS certificates at the time of the appellant's application were no longer licensed by the Home Office to award English language certificates.
11. Furthermore, the sponsor was not present and settled in the UK at the time of the application. He had been working in Afghanistan since 2 May 2012.
12. It was accepted on behalf of the appellant before the FtJ that the appellant was not able to meet the requirements of the Rules because at the date of the decision the sponsor was not present and settled in the UK and the English language test was not valid.
13. The evidence from the sponsor before the FtJ was that he had previously worked in Afghanistan, since November 2011, at army bases and that during his work he needed to live on the army base rather than with his wife but that on annual leave he was able to visit her. She lived with his parents in Kabul initially, but after their son's birth in May 2014, she moved to live with her mother, also in Kabul. His evidence was also that sometimes he went to meet his wife in Dubai, and tended to see her once every three to six months. His evidence was that he did not believe that he would be able to live as a family with his wife in Afghanistan because his work there had been risky and his wife had received some threatening phone calls from unknown people.
14. His further evidence was that it would not be possible to have his son to come and live with him in the UK unless his wife came too, as the child was very young and needed to be with his mother. He agreed that he, his wife and child had all lived together in Afghanistan until he relocated to the UK at the beginning of September 2015, but that, he said, was only on a temporary basis. It is not entirely clear, to me at least, what the sponsor meant by that evidence. He also said that his wife and son lived in rented accommodation in Kabul, both at the time of the application and of the decision, and had not subsequently needed to move because of any threats. In answer to a point about what was said on the Visa Application Form in terms of them all living together, the sponsor's evidence was that that was not the case and he stayed at army bases for his work but during his leave he was able to stay with his wife. He had seen his child five or six times.
15. The FtJ stated at [16] and [60] that she found the sponsor to be a credible witness. She found that they had lived together after their marriage in 2011 when the sponsor had leave from his work on army bases, and after the sponsor's termination of his employment in Afghanistan in August 2015 until his return to the UK in September 2015.
16. It was noted that the appellant, although initially having sat an English language exam that was not from an accredited provider, had subsequently, in late April 2015, after the date of the decision, sat and passed an accredited English language examination.
17. It is not entirely clear that the FtJ recognised that it is the date of decision that is the relevant date even for Article 8 purposes in an entry clearance appeal. Nevertheless, on close examination, it is not apparent that the FtJ did take into account matters arising after the date of the decision in her Article 8 assessment. Perhaps, it could be said that there was a failure to recognise that principle at [72] where she said that it would be likely that any future application would succeed under the Immigration Rules (the sponsor now being present in the UK and the appellant having passed an accredited English language test). However, she went on to state in that paragraph that it was correctly decided by the ECO that the appellant could not succeed under the Rules at that time, and there was no evidence then that the appellant's child was a British citizen.
18. On behalf of the appellant I was referred to R (on the application of) Sunassee v Upper Tribunal (Immigration and Asylum Chamber) and Secretary of State for the Home Department [2015] EWHC 1604 (Admin) which is a decision by Edis J on an application for permission to apply for judicial review. It was released as a 'reported' judgment, notwithstanding that it was a permission application, in the light of the review of the relevant authorities in relation to the interface between the Article 8 Rules and Article 8 proper. It is, if I may respectfully say, a useful and clear distillation of the authorities.
19. The FtJ in the appeal before me was entitled to conclude that there were compelling circumstances not recognised within the Article 8 Rules and which required consideration under Article 8 proper. She concluded, and was entitled to conclude on the evidence, that family life between the appellant and the sponsor could not be maintained in Afghanistan, for the reasons she gave, there having been threats to the appellant's wife, and taking into account that they have a British citizen child who was born prior to the date of application and decision. Although Mr Tufan suggested that the evidence of threats to the appellant's wife was not something that the sponsor could reliably give evidence about because he was not present at the time, the FtJ concluded that he had given credible evidence about his wife having received some threatening phone calls. That his evidence on this issue was plainly hearsay, does not make it inadmissible in immigration (tribunal) proceedings.
20. Whilst it may be said that the FtJ could have concluded that rather than allowing the appeal under Article 8 the appellant could make a further application for entry clearance, she was entitled to conclude that refusal of entry clearance amounted to a disproportionate interference with the appellant's Article 8 rights. It would also have been legitimate for her to take into account the Article 8 rights of their son, who although very young, was separated from his father.
21. In all the circumstances, I am not satisfied that there is any error of law in the decision of the FtT. Its decision to allow the appeal must therefore stand.
Decision
22. The decision of the First-tier Tribunal did not involve the making of an error on a point of law. Its decision to allow the appeal therefore stands.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.


Upper Tribunal Judge Kopieczek 21/12/16