Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number OA/09625/2014

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision and Reasons Promulgated
On 20th July 2016
On 30th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

S S
(ANONYMITY MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Bhachu (Counsel, instructed by J M Wilson)
For the Respondent: Mr D Mills (Home Office Presenting Officer)

DETERMINATION AND REASONS
1. The Appellant's application to enter the UK as a spouse was rejected for the reasons given in the Refusal Notice of the 29th of July 2014. The Appellant could not meet the requirements of Appendix FM and/or FM-SE. The appeal was heard by Judge Carlin and dismissed in a decision promulgated on the 9th of June 2015. It had been accepted that the Appellant could not meet the financial requirements and the Judge held that he did not succeed under article 8.
2. Permission to appeal to the Upper Tribunal was sought in grounds of the 26th of June 2015. It was argued that the Judge had failed to take into account material in relation to the financial requirement under Appendix FM and had erred in failing to give reasons why that did not form part of the decision and had not considered section 55. It was argued that the Judge had not considered why the Sponsor did not earn sufficient to meet the financial requirements being a carer. These findings also infected the assessment under section 55.
3. Permission was granted by Judge Simpson on the basis that the Judge had not given sufficient weight to the Sponsor's circumstances in assessing proportionality having regard to the Sponsor's caring for her parents, being a new mother and the finding that she could not be expected to live in India.
4. In response the Secretary of State submitted that the Judge had directed himself appropriately, the findings made at paragraphs 28 and 29 were open to the Judge and the evidence in the witness statements referred to the potential future position. Section 55 was considered at paragraph 33 and that was appropriate with the reasons given.
5. The submissions are set out in full in the Record of Proceedings. It was accepted that the case had always been outside the Immigration Rules. The Sponsor could not meet the financial rules. There was reference to the parents' health and it was submitted that there had not been an adequate assessment of the child's best interests. It had been accepted that family life could not continue in India. When looking at separation welfare had to be considered. This was not a case of a near-miss and paragraph 33 did not amount to an assessment of the child's needs.
6. For the Home Office it was submitted that states have a wide margin of appreciation and this was a case involving entry clearance, not a case where the Appellant was already in the UK. With regard to the child something compelling beyond a simple best interests finding, such as disability, would be needed. Reference was made to SS (Congo). The evidence of the Sponsor in her witness statement was that when qualified she would earn enough, the evidence was that she was nearly there and there was no suggestion of stress.
7. The Appellant and Sponsor chose to have a child in their current circumstances and so cannot complain that the situation they have created is the cause of some difficulties. It was entirely foreseeable that with the Sponsor living in the UK without the Appellant life would be more difficult than otherwise. The Judge noted that whatever the health of the Sponsor's parents that did not prevent her from studying and working and they are entitled to treatment under the NHS.
8. States are not obliged to accept without qualification the preferred location of a married couple and is entitled to set requirements for the entry of non-nationals for immigration purposes. It is clear from the case of MM that the financial requirements of Appendix FM have been a challenge for many and the fact of having a child in circumstances where the rules are not met does not by itself provide a couple with a by-pass to the Immigration Rules that apply to them.
9. The Judge clearly had the Sponsor's parents' health in mind, evidence relating to their circumstances is set out in paragraph 21. As the Judge noted their circumstances did not prevent the Sponsor from working, studying or travelling to India to visit the Appellant. Paragraph 33 was based on the evidence. It is trite to say that it is in the best interests of a child to be brought up in a family with both parents but it does not follow that a parent has to be permitted to enter or remain in the UK, states are entitled to set requirements for the entry of non-nationals in for individuals in this situation the rules have been upheld in MM. Miss Bhachu did not point to any specific evidence that the Judge had overlooked or ignored that suggested that the exclusion of her father was disproportionate.
10. The Appellant's case effectively comes down to a submission that having a child in circumstances where the financial requirements are not met is sufficient for a Judge to find that a refusal of entry clearance is almost automatically disproportionate. That life would be easier for all concerned if the Appellant was to be permitted to enter the UK is hardly a startling conclusion but his exclusion under the Immigration Rules cannot be avoided.
11. To succeed under article 8 outside the rules the Appellant would have to show that the circumstances were such that his continued exclusion was disproportionate. The fact that the Appellant and Sponsor had had a child knowing what the Immigration Rules required and that they could not meet them was a highly relevant factor. The Judge was entitled to find that the Sponsor's parents' health problems were not so pressing that her presence was permanently required. Ms Bhachu did not point to any evidence that suggested that their child had any needs beyond those for any child of her age.
12. This appeal amounts to a disagreement with findings properly made and open to the Judge for the reasons given. The Appellant and Sponsor find themselves in a situation of their own making and did not provide evidence to suggest that
CONCLUSIONS
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision.
Anonymity
The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I make no order.
Fee Award
In dismissing this appeal I make no fee award.

Signed:

Deputy Judge of the Upper Tribunal (IAC)
Dated: 26th August 2016