Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: OA/10645/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On December 14, 2015
On January 4, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

THE ENTRY CLEARANCE OFFICER

Appellant
and

MRS SABANA BEGUM
(NO ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Ms Johnstone (Home Office Presenting Officer)
For the Respondent: Represented by the Sponsor, Mr Islam

DECISION AND REASONS

1. Whereas the original respondent is the appealing party, I shall, in the interests of convenience and consistency, replicate the nomenclature of the decision at first instance.

2. The appellant, citizen of Bangladesh applied for entry clearance as a spouse on September 12, 2013. This application was refused on August 4, 2014 and the appellant appealed this decision on September 4, 2015 under section 82(1) of the Nationality, Immigration and Asylum Act 2002.

3. The appeal came before Judge of the First-tier Tribunal McCall on June 22, 2015 and he rejected the appeal under the Immigration Rules but allowed it under article 8 ECHR in a decision promulgated on July 6, 2015.

4. The respondent sought permission to appeal that decision on July 16, 2015. Permission to appeal was granted by Judge of the First-tier Tribunal Cox on September 4, 2015 on the basis it was arguable the Tribunal had taken into account post-decision evidence (birth of a child) and its proportionality assessment was extremely brief and arguably inadequate.

5. The matter came before me on the above date and on that date I heard submissions from both the sponsor and Ms Johnstone.

6. The First-tier Tribunal did not make an anonymity direction and pursuant to Rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008 I make no order now.

ERROR IN LAW

7. Ms Johnstone relied on the grounds of appeal and submitted the Tribunal had erred by allowing the appeal under article 8 ECHR. She referred to the fact the Tribunal found the appellant had not satisfied the Rules as at the date of decision but then went onto allow the appeal under article 8. In doing so the Tribunal placed emphasis on the fact the appellant gave birth to a child in January 2015 and this event post dated the date of decision. The Tribunal failed to carry out any proportionality assessment and there was an error in law.

8. Mr Islam began by arguing the appellant had satisfied the Rules but then went on to argue that the decision was correct because he was a British citizen who had lived here all his life with his family. The Tribunal correctly placed weight on the fact there was a child and he invited me to reject the respondent's appeal.

DISCUSSION AND FINDING

9. The Tribunal had considered this application under both the Rules and article 8 ECHR. It rejected the appeal under the Immigration Rules because the appellant failed to comply with Appendix FM-SE and the respondent was entitled to reject the application under Appendix FM-SE paragraph D having given the appellant an opportunity to provide the missing documents under that paragraph before the decision was taken.

10. The Tribunal proceeded to consider the application under article 8 and took into account firstly that the appellant appeared to satisfy the Rules and secondly they now had child.

11. I am satisfied the Tribunal's approach was flawed. This was an out of country application and both the Rules and article 8 consideration had to be as at the date of decision.

12. When the appellant submitted her application in September 2013 she was not pregnant although when the application was refused in August 2014 she was. Similarly, when the application was submitted the Rules were not met and they were also not met at the date of decision.

13. The Tribunal, in considering article 8, considered the evidence as at the date of hearing. In finding the Rules were met the Tribunal considered the position not at the date of decision but at date of hearing. If this had been an in-country appeal, then that stance would have been open to it but this was an out of country application and the Tribunal erred in finding the rules were met for the purposes of an article 8 assessment.

14. Similarly, the Tribunal erred when approaching the issue of the child. The child had not been conceived at the date of application and although the appellant was pregnant at the date of decision the Tribunal there was no actual child to take into account at that date.

15. At paragraph [57] of SS (Congo) and others [2015] EWCA 387 the Court of Appeal stated-

"In certain of the appeals before us, the respondents said that improvements in the position of their sponsors were on the horizon, so that there appeared to be a reasonable prospect that within a period of weeks or months they would in fact be able to satisfy the requirements of the Rules. They maintained that the Secretary of State should have taken this into account when deciding whether to grant LTE outside the Rules. In our judgment, however, this affords very weak support for a claim for grant of LTE outside the Rules. The Secretary of State remains entitled to enforce the Rules in the usual way, to say that the Rules have not been satisfied and that the applicant should apply again when the circumstances have indeed changed. This reflects a fair balance between the interests of the individual and the public interest. The Secretary of State is not required to take a speculative risk as to whether the requirements in the Rules will in fact be satisfied in the future when deciding what to do. Generally, it is fair that the applicant should wait until the circumstances have changed and the requirements in the Rules are satisfied and then apply, rather than attempting to jump the queue by asking for preferential treatment outside the Rules in advance."

16. The Court of Appeal in SS further reiterated that to allow the appeal outside of the Rules there had to be compelling circumstances.

17. The appellant did not meet the Rules as at the date of decision. Mr Islam submitted that he preferred to live here because he had been born because he was British and his family lived here and he had nothing in Bangladesh whereas he and his wife could both live and work here.

18. The material relied on to allow this appeal included the fact the family simply preferred to live in the United Kingdom but there is no requirement under Article 8 that such a preference should be accommodated. Accordingly, for the reasons set out above I allow the respondent's appeal today.

19. I have gone onto consider whether there were any compelling circumstances requiring the grant of leave to enter outside the Rules. The Rules were not met at the relevant time and the fact the Rules may be met now is not a reason to allow the appeal. In R (on the application of Chen) v Secretary of State for the Home Department (Appendix FM - Chikwamba - temporary separation - proportionality) (IJR) [2015] UKUT 189 the Tribunal made it clear that a party seeking to argue that a temporary separation would interfere disproportionately with protected rights had to place before the Tribunal evidence and it was not enough to simply rely on Chikwamba v SSHD [2008] UKHL 40.

20. Any article 8 assessment must take place against the facts existing as at the date of decision. The mere fact the Rules were met and there was a child were not factors to have regard to when considering the claim under article 8 ECHR as this was an entry clearance application.

21. If the appellant now meets the Rules then she should submit the correct application with the correct fee and documents. It is not disproportionate to refuse this appeal under article 8 ECHR.

DECISION

22. There was a material error and I set aside the earlier decision allowing the appeal under article 8 ECHR.

23. I uphold the decision to dismiss the application under the Rules and I dismiss the appeal under article 8 ECHR.

Signed:

Deputy Upper Tribunal Judge Alis

FEE AWARD

I make no fee award as dismissed the appeal.

Signed:

Deputy Upper Tribunal Judge Alis