Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/08424/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26th January 2017
On 3rd February 2017

Before

UPPER TRIBUNAL JUDGE JACKSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ajaz masih
(ANONYMITY DIRECTION not made)
Respondent

Representation:

For the Appellant: Mr S Withwell, Home Office Presenting Officer
For the Respondent: Mr G Davison of Counsel

DECISION AND REASONS

1. The Appellant appeals against the decision of First-tier Tribunal Judge Flynn promulgated on 18 August 2016, in which the Respondent's appeal against her decision to refuse his application for entry clearance dated 24 April 2015 was allowed.
2. The Respondent is a national of Pakistan, born on 2 August 1967, who made an application for entry clearance as the spouse of Parveen Bushra (the "Sponsor"). He had previously been in the United Kingdom for an unknown period of time, returning to Pakistan in 2004. The Appellant made a previous claim for settlement on 20 August 2004 which was initially refused but he successfully appealed against that refusal in August 2006. The Respondent states that the application for entry clearance was then reconsidered but refused under paragraph 320(21) of the Immigration Rules; although before the First-tier Tribunal, the Sponsor stated in evidence that she did not know what happened other than that entry clearance had not been granted.
3. The Appellant refused the latest application for entry clearance on the sole ground that the Respondent did not pass the listening aspect of the required English language test as required by paragraph E-ECP.4.2 of Appendix FM of the Immigration Rules.
4. Judge Flynn allowed the appeal in a decision promulgated on 18 August 2016 on human rights grounds. The reasons for this were that she found that there would be insurmountable obstacles to the Sponsor relocating to Pakistan, finding that it was reasonably likely that she would face a risk of persecution in Pakistan as a Christian. Further, Judge Flynn considered that it was significant that the Appellant had been unable to join his wife of twelve years despite a successful appeal ten years ago which reduced the weight to be accorded to the maintenance of immigration control. Judge Flynn noted that the Appellant had passed the written and speaking English tests and would be likely to improve his English following arrival in the United Kingdom, enabling him to integrate with the Sponsor's assistance. Judge Flynn also considered that in the future, the Sponsor's earnings would likely increase as her health problems would improve when the Appellant joined her such that she would be able to work full-time again. These last two factors were also found to reduce the weight to be accorded to immigration control. Overall, the circumstances were considered exceptional and the interference with the Appellant's right to respect for family life under Article 8 was disproportionate.
Grounds of appeal
5. The Appellant appeals the decision of Judge Flynn on three grounds. First, that there was no consideration of and no reasons given as to why the Respondent could not continue to improve his English and reapply for entry clearance in accordance with the Immigration Rules. Further, Judge Flynn prospectively considered the facts in section 117B of the Nationality, Immigration and Asylum Act 2002, inadequately applying these to the circumstances pertaining at the date of decision. In any event, the Appellant relies on the Court of Appeal's decision in Rhuppiah v Secretary of State for the Home Department [2010] EWCA Civ 803 that at best, the ability to speak English and being financially independent are neutral factors and not ones which can reduce the weight to be attached to immigration control.
6. Secondly, the Respondent was refused entry clearance following his successful earlier appeal for reasons of having submitted false documents or made false representations such that the Appellant was not at fault for the period of separation. In paragraph 37, Judge Flynn reduces the weight to be attached to immigration control due to the long period of separation after the previous successful appeal but in circumstances where she accepted in paragraph 29 that no conclusions could be reached as to why entry clearance had not been granted following the previous successful appeal. It is submitted that this is an error of law as there was no basis for such a conclusion in the absence of specific findings.
7. Thirdly, Judge Flynn failed to consider the Sponsor's visits to Pakistan which was relevant to her claimed fear of persecution there as a Christian. The evidence before Judge Flynn was that the Appellant and Sponsor married in Pakistan and that the Sponsor suffered miscarriages between 2004 and 2007 (following contact with the Appellant which presumably took place in Pakistan) and copies of her passport were in the bundle which showed entry stamps/visits to Pakistan in 2011, 2013 and 2014. None of this was considered in the context of the Sponsor's claimed fear of relocating to Pakistan.
8. At the oral hearing, the Home Office Presenting Officer drew attention to paragraph 19 of the decision in which Judge Flynn arguably applied the wrong standard of proof, stated to be 'lower than the normal civil standard'. It was accepted that this did not form part of the grounds of appeal.
9. In response, Counsel submitted on behalf of the Respondent that there was no material error of law in the decision of the First-tier Tribunal. In relation to what happened after the previous successful appeal, there was nothing to suggest that the Sponsor knew about this or even that the decision had been made and served on the Respondent, the copy being provided at the appeal hearing being undated. In any event the continued separation of the couple is a relevant part of the history and context of the current appeal and assessment.
10. The Sponsor's visits to Pakistan were not hidden from the First-tier Tribunal and were instead included in the evidence to show continued direct contact with the Respondent. It should be considered that visits are not determinative of fear on return as there is a qualitative difference between visiting and living in a country.
11. Overall it was submitted that given the findings of heartache and grief caused to the Appellant and the Sponsor by their continued separation, combined with their improved circumstances, it was open to the First-tier Tribunal to find that there were exceptional circumstances to allow the appeal under Article 8 outside of the Immigration Rules.
Findings and reasons
12. In her decision, Judge Flynn gives three main reasons as to why the appeal is allowed on human rights grounds. First, that there are insurmountable obstacles to the Sponsor relocating to Pakistan because it is reasonably likely that she would face a risk of persecution there as a Christian which is increased because she is a woman; secondly that the weight to be accorded to immigration control is reduced because the long period of separation despite a previous successful appeal and thirdly, that the weight to be accorded to immigration control is reduced because prospectively, after arrival in the United Kingdom, the Appellant is likely to improve his English and the Sponsor will be able to resume full-time employment. I find that all three reasons and therefore the conclusions contain material errors of law because they are either not based on the evidence and findings before the First-tier Tribunal and/or because they follow a misdirection in law as to risk on return and the application of section 117B of the Nationality, Immigration and Asylum Act 2002.
13. In relation to the finding of insurmountable obstacles due to the Sponsor's Christianity, Judge Flynn accepted the Sponsor's subjective fear to be genuine and went on to find it reasonably likely that she would face a real risk of persecution, with her fear being well-supported and entirely consistent with the background evidence of frequent attacks on and murders of Christians in Pakistan. That conclusion fails to take into account the evidence before the First-Tier Tribunal that the Sponsor has frequently returned to Pakistan (on at least 7 occasions during the period of her relationship with the Appellant) and fails to have any regard to the country guidance case of AK and SK (Christians: risk) Pakistan CG [2014] UKUT 00569 (IAC) which concluded that Christians in Pakistan generally suffer discrimination but not sufficient to amount to a real risk of persecution and although women are at a heightened risk, this falls short of a generalised real risk. For those two reasons, the decision contains material errors of law for failure to take into account relevant material and authority. The errors are material as it is far from clear that had these two points been taken into account, the finding would have been the same.
14. In relation to the finding that the weight to be accorded to immigration control is to be reduced because the Respondent has been unable to join the Sponsor following his previous successful appeal, I find that it was simply not open to the First-tier Tribunal to reach such a conclusion based on the evidence before her. In paragraph 29, Judge Flynn states that she cannot reach any conclusions on events following the previous successful appeal as there is insufficient evidence from either party on it. In those circumstances, it was not open to her to then reduce the weight to be accorded to immigration control, which could only be possible if there had been a finding of some level of culpability on the part of the Appellant causing delay or continued separation. The evidence from the Appellant before me was that the application for entry clearance had been reconsidered post-appeal and refused for different reasons which the Respondent was responsible for. It is not clear when or even if that decision was served, but that does not detract from the error in paragraph 37 of the decision.
15. Finally, I find that there was a material error of law in the application of section 117B of the Nationality, Immigration and Asylum Act 2002. That section sets out factors which the Tribunal is required to take into account when considering the public interest question. It includes that the maintenance of effective immigration control is in the public interest and further that it is in the public interest that persons seeking to enter the United Kingdom can speak English and are financially independent. There is nothing within that section to suggest that the latter are forward looking factors as to what an individual may be able to achieve after entering the United Kingdom and they should be considered at the time of the decision. In any event, as the Court of Appeal confirmed in Rhuppiah, if a person does not speak English, that would be a negative factor under section 117B(2) but the fact that they do speak English is only a neutral factor. The same applies to financial independence in section 117B(3), the fact that a person is financially independent is a neutral factor. Therefore, even if the prospective findings as to language and financial independence were correct, it was a material error of law to hold those factors as any higher than neutral and they do not justify any reduction in the weight to be attached to immigration control.
16. The decision of the First-tier Tribunal promulgated on 18 August 2016 involved the making of material errors of law in allowing the appeal that require the decision to be set aside and remade. I go on to remake the decision.
17. It is accepted in this case that the Respondent can not meet the requirements of the Immigration Rules for entry clearance as a spouse and instead he relies solely on Article 8 of the European Convention on Human Rights in this appeal. In considering the appeal on this ground, I follow the usual step-by-step approach set on in Razgar [2004] UKHL 27, applies as follows:

(i) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(ii) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
(iii) If so, is such interference in accordance with the law?
(iv) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(v) If so, is such interference proportionate to the legitimate public ends sought to be achieved?
18. In this appeal, there is no dispute that the Respondent and the Sponsor are in a genuine and subsisting relationship and therefore that they have established family life. The refusal of entry clearance maintains the status quo with the Respondent residing in Pakistan and the Sponsor residing in the United Kingdom (subject to any choice to relocate to Pakistan to enjoy family life with the Respondent there) and as such the interference to family life is by preventing it from developing further in the United Kingdom. Any interference is in accordance with the law and would be pursuant to the legitimate aim of protecting the economic well-being of the United Kingdom through the maintenance of immigration control.
19. When conducting the balancing exercise, I am obliged to consider the factors set out in Section 117B of the Nationality, Immigration and Asylum Act 2002, so far as relevant to this appeal, those are that the maintenance of immigration control is in the public interest and that it is in the public interest that an application speaks English and is financially independent. At the date of decision, the Respondent could not speak English to the required standard (this was the sole ground of refusal under the Immigration Rules) but the Sponsor was then working and able to meet the financial requirements.
20. In all of the circumstances and taking into account the factors in section 117B of the Nationality, Immigration and Asylum Act 2002 as I am required to do, I do not find that the refusal of entry clearance is a disproportionate interference with the Respondent's right to respect for family life for the following reasons. As confirmed in Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC), weighty reasons would be needed for a grant of entry clearance outside of the Immigration Rules where they have not been met and in this case none have been put forward by the Respondent.
21. There is no reason in this case why the Respondent could or should not make a fresh application for entry clearance once he has passed the required English language tests (as it is said he now has). The Respondent and Sponsor have been in a relationship for some 12 years now, but have been living in separate countries for all of that time and in the knowledge that the Sponsor would need to meet the requirements of the Immigration Rules for a grant of entry clearance for family life to be enjoyed in the United Kingdom.
22. Although the Sponsor claims to be in fear of persecution if she relocated to Pakistan, this has not stopped her visiting the country on a regular basis and in accordance with AK and SK there is no real risk of persecution in any event. It was a matter of choice for the couple to begin their relationship in separate countries and it remains a matter of choice as to whether they make a further application for entry clearance to the United Kingdom or whether the Sponsor relocates to Pakistan to enjoy family life there. It would not be unreasonable or disproportionate for her to do so if she so chose. The fact that the Sponsor has been in the United Kingdom for twenty years and has employment here does not mean that she would not be able to integrate into Pakistan with the Respondent, given that it is a country with which he has at least some familiarity (from her early years and regular visits) and knowledge of the language. The Sponsor has been suffering from depression said to be caused by the continued separation from her the Respondent but there is nothing to suggest that if she relocated to Pakistan that this would not therefore improve nor that in any event medical treatment would not be available if required.
23. The evidence in relation to events after the previous appeal hearing is not entirely clear, however, there is little to suggest that the Respondent actively pursued a fresh decision prior to his most recent application (even if he did not receive the earlier refusal) and nothing to suggest that the continuing separation of the couple was in any way caused by Appellant. There can be no reduction to the weight to be attached to immigration control in such circumstances.
24. For these reasons, I dismiss the appeal on human rights grounds on the basis that the refusal of entry clearance would not be a disproportionate interference with the right to respect for family life and in particular, no weighty reasons have been given for a grant of entry clearance outside of the Immigration Rules where those requirements have not been met.

Notice of Decision
The making of the decision of the First-tier Tribunal involved the making of a material error of law.
I set aside the decision of the First-tier Tribunal.
I remake the decision and dismiss the appeal on human rights grounds.

No anonymity direction is made.

Signed Date 3rd February 2017

Upper Tribunal Judge Jackson