Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/12380/2014

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision and Reasons
On 21 July 2016
On 01 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between

IMEN BEN OTHMANE
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: No attendance
For the Respondent: Mr G Harrison Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. In a decision dated 8 September 2014 the Respondent refused the Appellants application for entry clearance to the UK as the partner of a British Citizen Navid Anwar (the Sponsor) The Appellants appeal against that decision was allowed under Article 8 but dismissed under the Immigration Rules by First-tier Tribunal Judge De Haney in a decision promulgated on 10 April 2015. That decision was set aside by Deputy Upper Tribunal Judge Rimington on 5 May 2016 as she found that the Judge had erred in law in his assessment under Article 8.
4. The matter was adjourned for a re hearing. The Sponsor did not attend the appeal nor was there a representative at court as the Tribunal had received a letter dated 14 July 2016 from Just Law who had previously represented the Appellant indicating that they were no longer instructed. I am satisfied that due notice of the appeal was served upon the Sponsor at the address that was given. I am therefore satisfied that having been served notice of the hearing and not attended it is in the interests of justice to proceed with the hearing in the Sponsor's absence as I am entitled to do by virtue of paragraph 38 of The Tribunal Procedure (Upper Tribunal) Rules 2008.
5. At the hearing I heard submissions from Mr Harrison on behalf of the Respondent that he relied on the reason for refusal letter, the Entry Clearance Managers Review dated 1 December 2014 and the points raised by Deputy Upper Tribunal Judge Rimington in her error of law decision.
6. While there was no attendance by any party on behalf of the Appellant I took into account all the documents that had previously been relied on in so far as they were relevant to the issues in the case.
Law
7. In relation to claims under Article 8 these are addressed by Appendix FM and paragraph 276ADE of the Rules and the Secretary of State's Guidance. If an applicant does not meet the criteria set out in the Rules then guidance issued by the Secretary of State in the form of instructions provides in effect, that leave to remain outside the rules could be granted in the exercise of residual discretion in 'exceptional circumstances' which are defined in the guidance and must be exercised on the basis of Article 8 considerations, in particular assessing all relevant factors in determining whether a decision is proportionate under Article 8.2.
8. It is now generally accepted that the new Immigration Rules do not provide in advance for every nuance in the application of Article 8 in individual cases. At para 30 of Nagre, Sales J said:

"30. ? if, after the process of applying the new rules and finding that the claim for leave to remain under them fails, the relevant official or tribunal judge considers it is clear that the consideration under the Rules has fully addressed any family life or private life issues arising under Article 8, it would be sufficient simply to say that; they would not have to go on, in addition, to consider the case separately from the Rules. If there is no arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8, there would be no point in introducing full separate consideration of Article 8 again after having reached a decision on application of the Rules."
9. This was also endorsed by the Court of Appeal in Singh and Khalid where Underhill LJ said (at para 64):

"64. ? there is no need to conduct a full separate examination of article 8 outside the Rules where, in the circumstances of a particular case, all the issues have been addressed in the consideration under the Rules."

10. More recently the Court of Appeal in SS Congo [2015] EWCA Civ 387 stated in paragraph 33:
"In our judgment, even though a test of exceptionality does not apply in every case falling within the scope of Appendix FM, it is accurate to say that the general position outside the sorts of special contexts referred to above is that compelling circumstances would need to be identified to support a claim for grant of LTR outside the new Rules in Appendix FM. In our view, that is a formulation which is not as strict as a test of exceptionality or a requirement of "very compelling reasons" (as referred to in MF (Nigeria) in the context of the Rules applicable to foreign criminals), but which gives appropriate weight to the focused consideration of public interest factors as finds expression in the Secretary of State's formulation of the new Rules in Appendix FM. It also reflects the formulation in Nagre at para. [29], which has been tested and has survived scrutiny in this court: see, e.g., Haleemudeen at [44], per Beatson LJ. "
11. Section 117A (2) of the 2002 Act provides that where a Tribunal is required to determine whether a decision made under the Immigration Acts would be unlawful under section 6 of the Human Rights Act 1998 it must, in considering 'the public interest question', have regard in all cases to the considerations listed in section117B of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014). Section 117 (3) provides that the 'public interest question' means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
12. The S117B considerations are as follows:
"(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom."
Finding on Material Error
13. I have taken into account all of the evidence before me.
14. The Appellant submitted a visa application for entry clearance as the partner Navaid Anwar. The Sponsor Mr Anwar is a British Citizen and he married the Appellant who is an American citizen on 23 March 2013. The application failed because the application was not accompanied by the mandatory documentation largely it would appear because the Sponsors salary was not reflected in his bank statements as he asserted he was paid in cash.
15. I remind myself that the Appellant bears the burden of proof in her appeal. Mr Anwar was notified of today's hearing and did not attend which is surprising given that he attended the hearing in the First-tier Tribunal. While he is not of course obliged to attend the hearing I find that given that this was an appeal against the refusal of entry clearance for his wife to come and join him in the UK his failure to attend court, with no explanation for his absence, must reflect on any decision I make where I have to consider the quality and nature of their claimed family life and the proportionality of the decision in issue.
16. The Appellant has submitted that her rights under Article 8 of the Convention are engaged. I have determined the issue on the basis of the questions posed by Lord Bingham in Razgar [2004] UKHL 27
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?
17. I am satisfied that the Appellant and his wife have a family life because they have been married for some 3 years. They have a child together Kenza Ryned Anwar who was born on 31 August 2014 and appears to live with her mother in the USA. The child is a British Citizen The family meet regularly every two or three months. The parties wish to live together in the UK where the Sponsor has a successful business and extended family. I accept that the decision interferes with their family and private life.
If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
18. I am satisfied that removal would have consequences of such gravity as potentially to engage the operation of Article 8.
If so, is such interference in accordance with the law?
19. I am satisfied that there is in place the legislative framework for the decision giving rise to the interference with Article 8 rights which is precise and accessible enough for the Appellant to regulate her conduct by reference to it.
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 freedom of others?
20. The interference does have legitimate aims since it is in pursuit of one of the legitimate aims set out in Article 8 (2) necessary in pursuit of the economic well being of the country through the maintenance of the requirements of a policy of immigration control. The state has the right to control the entry of non nationals into its territory and Article 8 does not mean that an individual can choose where she wishes to enjoy her private and family life.
If so, is such interference proportionate to the legitimate public end sought to be achieved?
21. In making the assessment I have also taken into account ZH (Tanzania) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC 4 where Lady Hale noted Article 3(1) of the UNCRC which states that "in all actions concerning children, whether undertaken by ? courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
22. Article 3 is now reflected in section 55 of the Borders, Citizenship and Immigration Act 2009 which provides that, in relation, among other things, to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions "are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom". Lady Hale stated that "any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be "in accordance with the law" for the purpose of article 8(2)". Although she noted that national authorities were expected to treat the best interests of a child as "a primary consideration", she added "Of course, despite the looseness with which these terms are sometimes used, "a primary consideration" is not the same as "the primary consideration", still less as "the paramount consideration".
23. I accept as a starting point that it is in the best interests of a child to be brought up by both parents. However I note that the Appellant and her British Citizen husband have had a child who is herself a British Citizen before they knew that the Appellant was going to be granted permission to enter the UK. That was their choice, that the child therefore would be living with parents who had not yet secured permission to live together and given the extent of the Appellants previous visa applications they knew that in order to live together they would have to satisfy the requirements of the Immigration Rules. In the absence of Mr Anwar or further elucidation from the Appellant I have nothing before me to suggest that the child is suffering in only seeing her father every few months.
24. Consideration of the issue of proportionality is also a 'consideration of "the public interest question" as defined by section 117A(3) of the 2002 Act. I am therefore required by section 117A(2)(a) to have regard to the considerations listed in section 117B.

25. I accept that the Appellant appears to be exempt for the English language requirements as she is an American citizen. I accept that the Appellant will be supported by her husband who has a business.

26. I note however that the first provision I must take into account in the consideration of the public interest is that the maintenance of immigration control is in the public interest. The system of immigration control is underpinned by the Immigration Rules. In this case the Appellant did not satisfy the Immigration Rules and I am satisfied on the basis of SS Congo, and indeed Mostafa (Article 8 and entry clearance) [2015] UKUT 0112 that the failure of the Appellant to meet the requirements of the immigration rules is a weighty consideration. Article 8 does not create a right for married couples to choose to live in a Contracting State unless they can meet whatever Rules that State require them to meet. There has been no explanation of why the Appellant made her application when it must have been obvious that they could not produce the required documents and why therefore they did not simply submit a later application when the Sponsors salary was paid into his bank account and could meet the Rules. The financial requirements and the Immigration Rules have been found to be necessary and reasonable requirements in previous caselaw and the obligation to provide bank documentation to establish that income is legitimately earned in the way claimed is a fair requirement that the Appellant and the Sponsor had to meet.

27. I am satisfied that in this case the application failed to comply with the Immigration Rules and no compelling circumstances were identified why those Rules should not be applied in this case in the usual way, there was nothing disproportionate in applying the Rules in accordance with their terms, with the effect that Appellants application failed and the Appellant would have to make a new one.
28. In determining whether the refusal would be proportionate to the legitimate aim of immigration control I find that none of the facts underpinning the appeal outweigh the legitimate purpose of the refusal.
29. I have considered the issue of anonymity in the present instance. Neither party has sought a direction. The Appellant is an adult and not a vulnerable person. I see no reason to make any direction in this regard.
CONCLUSION
30. On the facts as established in this appeal, there are no substantial grounds for believing that the refusal would result in treatment in breach of ECHR.
31. I therefore find that the decision of the Respondent appealed against is in accordance with the law.
Decision
32. The appeal is dismissed.

Signed Date 31.7.2016

Deputy Upper Tribunal Judge Birrell