Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: OA/07875/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On November 30, 2016
On December 1, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MR ZAIN UL ABDEEN
(NO ANONYMITY DIRECTION)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Represented by the sponsor, Samina Javid
For the Respondent: Mr Bates (Home Office Presenting Officer)

DECISION AND REASONS
1. The Appellant is a citizen of Pakistan. The appellant applied for entry clearance as a spouse. The respondent refused his application on April 7, 2015.
2. The appellant appealed that decision under section 82(1) of the Nationality, Immigration and Asylum Act 2002 on May 5, 2015.
3. The appeal came before Judge of the First-tier Tribunal Mozolowski (hereinafter referred to as the Judge) on December 17, 2015 as a paper case and in a decision promulgated on January 20, 2016 he allowed the appellant's appeal under the Immigration Rules.
4. The respondent lodged grounds of appeal on February 1, 2016 submitting the Judge had erred by allowing evidence in which had not been submitted to the Entry Clearance Officer. Permission to appeal was granted by Judge of the First-tier Tribunal Davidge on June 22, 2016 who found the point arguable.
5. The matter came before me on September 8, 2016 and after I heard submissions from Mr Bates and from the sponsor I found there had been an error in law and I set aside the decision under the Immigration Rules and re-made that decision by dismissing it under the Rules.
6. The sponsor was given an opportunity to consider whether she wished to pursue an article 8 appeal in view of the fact the Judge had not addressed this issue or to submit a fresh application. She indicated she wished to pursue the appeal and a further date was fixed for today.
7. No anonymity direction has been made.
EVIDENCE
8. The sponsor gave oral evidence and asked that I had regard to documents she had submitted on August 10, 2016. She confirmed she currently lived with her parents and elder sister but was buying a house for her and her husband to live in. This meant that her income was reduced as she had additional expenses and she did not believe it was fair that her husband had to wait three years for his application to be granted. If she had re-applied then it would be further cost. She confirmed her husband lived with his family and worked as a farmer. She last saw him about twelve months ago and she had previously seen him when she married in Pakistan.
9. Under cross-examination she confirmed her husband had never been to the United Kingdom and their contact, save as set out above, had always been by skype or telephone.
SUBMISSIONS
10. Mr Bates relied on refusal letter and submitted the appellant had not provided the specified evidence as laid out in Appendix FM-SE of the Immigration Rules and he therefore had to show there were compelling or exceptional circumstances to allow this appeal. He pointed out that they had never enjoyed family life here and the family life they had always been electronic. If the application was refused then the status quo would be maintained. Although this appeal had taken some time to reach this stage this was due the fact the appellant did not meet the Rules. It had always been open to the appellant to re-apply if the Rules were met and then there would not have been a delay. He invited me to dismiss the claim.
11. Ms Javid stressed that she had waited three years to build this case and it was hard to be separated from her husband. She found it hard to take time off to visit her husband in Pakistan and as she now had the correct paperwork the appeal should be allowed as she wanted to start a family with him. She questioned why she should be put to the additional cost of bringing fresh proceedings and invited me to allow the appeal.
DISCUSSION AND FINDINGS
12. An application for entry clearance requires specified evidence to be served with the application. The Rules are clear that this is the time for the evidence to be served and there are very few exceptions. This was not one of those exceptions as it was clear that the appellant had not submitted the correct paperwork with the application and I previously dismissed the appeal under the Immigration Rules.
13. I adjourned the case previously for oral evidence on article 8 ECHR and for the appellant to serve any additional relevant evidence. I reminded her that I was considering the case as at April 2015.
14. In SS (Congo) and Others: [2015] EWCA Civ 387 Richards LJ said what is in issue in relation to an application for leave to enter is more in the nature of an appeal to the state's positive obligations under Article 8 referred to in Huang at paragraph [18] (a request that the state grant the applicant something that they do not currently have - entry to the United Kingdom and the ability to take up family life there), rather than enforcement of its negative duty, which is at the fore in leave to remain cases (where family life already exists and is currently being carried on in the United Kingdom, and family life or any private life established in the United Kingdom will be directly interfered with if the applicant is removed). This means that the requirements upon the state under Article 8 are less stringent in the leave to enter context than in the leave to remain context.
15. When the application was submitted the appellant did not meet the Rules. The appellant argues now that she would have met the Rules and relies on the evidence from her sister and brother served on August 10, 2016 and the additional documents that were submitted to the original Judge. These documents have never been assessed by the entry clearance officer and whilst the original Judge concluded they satisfied the Rules I remind myself that the respondent is the person who must consider that evidence afresh.
16. The parties are married and I accept they have a family life but that family life has to be looked at carefully. They have spent two short spells together as husband and wife and the sponsor's last visit was brought about by the sponsor's need to return to Pakistan for a family issue and not specifically to see her husband.
17. They have only ever enjoyed family life from a distance and when they married they would have known the requirements to be met. Effectively, the sponsor asks me to allow the appeal because it is unfair they have had to wait since late 2014 for a visa and to require them to re-apply would be expensive and the sponsor now has additional expenses to meet.
18. I am not satisfied that these are exceptional or compelling circumstances requiring me to consider this appeal outside of the Rules.
19. However, I have nevertheless considered the case in line with the approach set out in Razgar [2004] UKHL 00027.
20. The appellant and sponsor are husband and wife and evidence produced confirms the marriage is subsisting and there is family life between them as set out above. Their existing family life is not being interfered with but their desire to be together here is being interfered with. This interference is occurring because the appellant did not meet the Immigration Rules. Such interference is necessary to maintain immigration control.
21. I have considered Section 117B of the 2002 Act and in doing so I accept the appellant can speak English to the appropriate level because he has passed the relevant English language test prescribed in Appendix FM of the Immigration Rules. They did not meet the financial requirements of Appendix FM.
22. Section 117B(1) makes clear that the maintenance of immigration control is in the public interest and the fact I find the appellant did not meet the Rules is a factor I must take into account when considering the claim under article 8 ECHR.
23. Taking all of the above factors into account and having regard to the guidance given in SS (Congo) I find it would not be disproportionate to refuse the application.
DECISION
24. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
25. I set aside the decision under the Immigration Rules and I have remade it that decision and dismissed it.
26. I dismiss the appeal under article 8 ECHR.

Signed: Dated: December 1, 2016

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD
No order is made because I have dismissed his appeal.

Signed: Dated: December 1, 2016

Deputy Upper Tribunal Judge Alis