Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/13380/2013
OA/13381/2013
OA/13382/2013

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reason Promulgated
On 12 December 2014
On 29 December 2014

Before

DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between

ROBINA AUSAR
IQRA ZULFIQAR
ALIYA KHAN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Timson counsel instructed by Zacharia & Co Solicitors
For the Respondent: Mr A McVitie 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. The Secretary of State for the Home Department brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Pacey promulgated on 26 February 2014 which dismissed the Appellants appeals under the Immigration Rules but held that it was disproportionate and unlawful under Article 8 of the European Convention on Human Rights to remove them to Pakistan.

Background

3. The Appellants are a mother and her two daughters who are citizens of Pakistan.

4. On 27 February 2013 the Appellants applied for entry clearance to the United Kingdom as the spouse and dependent children of Azam Khan, a British citizen

5. On 20 May 2013 the Secretary of State refused the Appellant's application. The refusal letter gave a number of reasons but in essence they can be summarised the Appellant had not provided the specified evidence for the specified periods to show that her sponsor met the financial requirements of the rules.

The Judge's Decision

6. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Pacey ("the Judge") allowed the appeal against the Respondent's decision under Article 8. The Judge found the decision to refuse would be disproportionate against the factual findings that he made.

7. Grounds of appeal were lodged and on 27 June 2014 Designated Judge Woodcraft Judge gave permission to appeal stating that it was arguable that the Judge had not followed recent jurisprudence on Article 8 and all grounds were arguable.

8. At the hearing I heard submissions from Mr McVitie on behalf of the Respondent that:

(a) At the time of his decision the Judge's approach in making a free standing Article 8 assessment was inconsistent with the prevailing caselaw but the decision had been, he conceded, overtaken by more recent caselaw.
(b) He suggested that there was a problem with the Judge's approach in paragraph 12.
(c) The Judge had relied wrongly on the decision in MM v SSHD [2013] EWHC 1900 .
(d) There was still a requirement to give adequate reasons for departing from the Rules.
(e) He also conceded that the appeal was 4 months out of time and that aspect of the appeal had not been adjudicated on.

9. On behalf of the Respondent Mr Timson submitted that :

(a) The appeal was late and there was no proper reason for the delay.
(b) The Judge had given adequate reasons for the decision he made.

Finding on Material Error

10. Having heard those submissions I reached the conclusion that the Tribunal made no material errors of law.

11. This appeal was out of time and the grounds included an application for the time limit to be extended. There was, contrary to Mr Timson's assertion, an explanation given for the delay, that the Respondent was undergoing a period of 'unprecedented staff shortages.' This was not adjudicated on in the permission but I am satisfied that in the circumstances it is right to extend the time and hear the appeal.

12. This was a refusal against entry clearance as a spouse where it was rightly conceded and recorded by the Judge that the Appellant could not met the requirements of the Rules. The Judge however found as a fact (paragraphs 4-10) that on the basis of the documentary and oral evidence before him that this failure was not on the basis that the Appellant did not meet the financial threshold required but simply that he had two jobs and one of them he had not held for long enough to provide the specified evidence at the time of the application.

13. The grounds argue that the Judge misdirected himself in considering the case under Article 8 outside the Rules, relying on Gulshan [2013] UKUT 00640 (IAC) and that the Judge failed to identify any arguable case to exercise a discretion outside the Rules, compelling circumstances to depart from the requirements of the Rules.

14. 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.

15. Mr Mc Vitie rightly conceded in my view that there have been a number of recent cases, after the date when permission was granted, which have considered the relationship between the new Rules and Article 8 such as R(MM (Lebanon)) v SSHD [2014] EWCA Civ 985, R(on the application of Esther Ebun Oludoyi & Ors) v Secretary of State for the Home Department (Article 8 - MM (Lebanon) and Nagre) IJR [2014] UKUT 00539 (IAC) and Adiya [2014] EWHC 3919 (Admin).

16. This line of cases accepts that Appendix FM is not a complete code and the Secretary of State always has a discretion to grant leave outside the Rules. That discretion must be exercised on the basis of Article 8 considerations by assessing all relevant factors in determining whether a decision is proportionate under Article 8.2. There is in principle no 'threshold' criterion of 'arguability'

17. The Judge in this case therefore having determined that the Appellant did not meet the requirements of the Rules made an evaluation of the case under Article 8 at paragraphs 12-15. While it might be argued that the decision he made was a generous one I am satisfied that he took into account all of the relevant factors in the case and reached a decision on proportionality that was open to him on the basis of his factual findings. The only challenge open would be that his conclusions were perverse but this has a high threshold and I am satisfied that such a challenge is not made out in this case.

CONCLUSION

18. I therefore found that no errors of law have been established and that the Judge's determination should stand.

DECISION

19. The appeal is dismissed.

Signed Date 24.12.2014

Deputy Upper Tribunal Judge Birrell