Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03690/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Promulgated & Sent to Parties
On 10 April 2017
On 18 April 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AGATHA MAZENGERA

Respondent

For the Appellant: Mrs M O’Brien, Senior Presenting Officer
For the Respondent: Mr S Winter, Advocate, instructed by Maguire Solicitors (Scotland) Ltd

DETRMINATON AND REASONS
1. The SSHD appeals to the UT against a decision by FtT Judge Handley, promulgated on 2 December 2016. The rest of this determination refers to parties as they were in the FtT.
2. The appellant is a citizen of Malawi, born on 17 November 1970. The SSHD refused her protection and human rights claims by letter dated 27 November 2015, which is firstly concerned with matters on which her appeal failed, and which are no longer in issue.
3. The appellant has a daughter, born in the UK on 16 April 2010, also a citizen of Malawi. She has an older son living in Malawi. In respect of family and private life, she relied upon her relationship with a UK citizen, Mr Martin Hart.
4. The SSHD held that the appellant did not qualify as a partner under appendix FM of the immigration rules because (a) she had not been granted entry clearance as Mr Hart’s fiancée and (b) she had been living with him for less than 2 years (¶33); did not qualify as a parent because she did not meet the eligibility requirements (¶34); did not meet the criteria for consideration under ¶EX.1 (¶35); raised no exceptional circumstances to warrant consideration of a grant of leave outside the rules – she said that her child saw her father once or twice a month, but there was no record that he was settled in the UK, was the father of the child, or maintained contact, and he had made no mention of his daughter in his dealings with the SSHD; her daughter was young enough to adapt to life in Malawi, and relocation would have no particularly detrimental effect on her (¶38-43).
5. The judge at paragraph 47 said that the appellant “… has a private and family life with a British citizen in the UK … it would be unreasonable to expect Mr Hart to relocate to Malawi, particularly given that he currently has health issues. I also take account of the interests of the child and accept that she has a family life in the UK which will be interfered with … this is one of a small minority of exceptional cases where article 8 is engaged”.
6. The issue raised by the SSHD’s grounds is whether that decision involved the making of an error on a point of law:
The judge [failed to consider the appeal] through the prism of the article 8 immigration rules (276ADE and appendix FM) and failed to engage with s.117 of the 2002 Act. The resultant “free-wheeling article 8 assessment” is therefore inadequate.
Submissions for SSHD.
7. The judge made his decision in a vacuum, without reference to the rules, which should have been his starting point, or to the statutory provisions on the public interest. It was accepted that complex rehearsal of legal tests was not required, but in this case, all relevant tests were bypassed. For example, there was nothing to show that the appellant’s precarious immigration status had been considered. The judge said that article 8 was “engaged” (¶47) and made that his conclusion, when it should have been only the starting point. He referred vaguely to contact between the appellant’s daughter and her father, but said nothing about its extent and significance, or about his status, if any, in the UK. He founded on the child’s progress and regular attendance at school, without saying why that might not equally well be the case in Malawi. He found a positive basis in Chikwamba (¶46) when no case had been made that the appellant might succeed under the rules, but for having to apply from abroad. He found it unreasonable to expect Mr Hart to relocate, based vaguely on “health issues” (¶47) without reference to the test of insurmountable obstacles in EX.1 and their definition in EX.2. Those provisions were highly relevant, setting the standard also in cases which did not meet the rules.
8. The decision of the FtT should be set aside, and a fresh decision substituted, based on the evidence which had been before the FtT, reversing the outcome.
Submissions for appellant.
9. By way of background, the father of the child is Zimbabwean. The understanding of the appellant is that he has some form of leave to remain in the UK, but there is no further evidence of that. He is understood to be in a relationship, of which there is a child. He has some contact with the appellant’s daughter, but is not on good terms with the appellant, and there is little communication between them. (I note that paternity was established in the FtT by DNA evidence, and that this former partner appears to be also the father of the child who has not come to the UK.)
10. There was enough in the decision as a whole, and in the last sentence of ¶47, “one of a small minority of exceptional cases”, to show that the judge adopted the correct legal approach.
11. The absence of reference to appendix FM and to insurmountable obstacles was because it was accepted the appellant did not qualify as a partner, and her case could not succeed within the rules.
12. The judge said enough to show that the public interest provisions of s.117 were considered, although not directly cited. The immigration history and other relevant circumstances were referenced at ¶9 -11, 29 and 47. The appellant spoke English, in which she gave evidence. Her partner supports her, without recourse to public funds (and is now back at work, having been absent for health reasons at the time of the FtT hearing).
13. In respect of the precarious status of the appellant, the outcome was consistent with Agyarko [2017] UKSC 11 at ¶49, 54 and 56 and with Rhuppiah [2016] 1 WLR 4203 at ¶53.
14. It was also of some significance that Mr Hart has a daughter, aged about 16 or 17, who lives with her mother but also partly with him.
15. The daughter of the appellant was not a qualifying child for purposes of s.117B(6) at the time of the FtT hearing (although now only a few days short of her 7th birthday).
16. The UT should be slow to hold that the FtT as an expert tribunal misdirected itself on the law – MA (Somalia) [2011] Imm AR 57 at ¶43; complaints of inadequacy of reasoning should not be lightly entertained, and it should be assumed that the FtT acted on appropriate grounds unless there were convincing reasons leading to a contrary conclusion – R (Iran) [2005] Imm AR 535 at ¶13; a decision should not be set aside for inadequacy of reasoning where there had been no misdirection of law, and the fact finding process could not be criticised, unless the conclusions drawn from the primary data were not reasonably open to the judge – Shizad [2013] UKUT 00085; the respondent was not prejudiced in any event – BM [2011] CSIH 32; and an unusually generous view of the facts (although that was not conceded in the present case) did not mean error of law – Mukarkar [2007] Imm AR 57 at ¶40.
17. The decision did not err in law, and should stand. Alternatively, if there was material error, the case should be remitted to the FtT, but preserving the finding that the relationship between the appellant and Mr Hart is a genuine one.
Reply for SSHD.
18. The appellant tried to conflate the grounds with a challenge to adequacy of reasoning, but that was not the nature of the error. The error was one of fundamental legal approach and misdirection in law, by not taking the rules and public interest provisions as the starting point. There was nothing in the decision from which the correct approach could be inferred.
Decision on error of law.
19. The private life aspect in terms of ¶276ADE of the rules and of s.117 was of no real significance. The case succeeded because of interference with family life (including the best interests of the child) or not at all.
20. Paragraph EX1 of appendix FM applies if an applicant “has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen… and there are insurmountable obstacles to family life with that partner continuing outside the UK”.
21. Paragraph EX2 defines insurmountable obstacles as “the very significant difficulties which would be faced by the applicant or their partner and continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner”.
22. It is accepted that this case does not qualify directly for consideration under EX1 and 2. However, (a) article 8 must firstly be looked at through the prism of the rules, and (b) those provisions were highly relevant to any assessment outside the rules.
23. I see no evaluation in the decision of “very significant difficulties” or “very serious hardship”. That is an apparent error of legal approach.
24. Section 117B of the 2002 Act includes these provisions:

(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.
25. Section 117B contains public interest considerations applicable in all cases. It is an error of law not to take these into account. I accept that rehearsal of the specific terms of the statute is not required, if the duty is substantively complied with. I also accept that the provision about speaking English did not operate against the appellant. The absence of reference to the financial aspect, either by reference to the rules or more generally, may well be because the appellant developed no relevant case.
26. The absence of reference to the public interest considerations is a second apparent error of legal approach.
27. Muhammad Arslan Khan [2016] CSIH 13 is instructive in the present case in several respects, for which purposes I set out the following paragraphs:

[12]      There was no dispute in this appeal that the appellant did not qualify for leave to remain in terms of the Immigration Rules, at least partly because there was no insurmountable obstacle to the appellant’s family life continuing with his wife in Pakistan (cf Rule EX1.(b)). The Rules are designed to cover the considerations that are relevant to an Article 8 claim in the normal case. In general, the application of the Rules will ensure that the proportionality assessment is properly carried out. However, this does not dispense with the obligation on the respondent to comply with the provisions of the Convention. If a family life claim is made, where the applicant does not qualify under the Rules, the respondent must consider that claim. It was not disputed that there is a family life within the meaning of Article 8. The issue before the FTT, in so far as relevant to this appeal, was whether the respondent ought to have been granted leave to remain outside the Rules on the basis that removal would be a disproportionate interference with the Article 8 rights of both the appellant and his wife.
[13]      It is important not to over-complicate the exercise which the immigration tribunals require to carry out in this, relatively common, situation. Elaborate re-statements of multi-facetted tests are seldom necessary at first instance level. Assuming, as it normally should be with specialist tribunals regularly operating Convention jurisprudence, that the decision-maker is familiar with the concept of proportionality as explained in Bank Mellat v HM Treasury [2014] AC 700 (Lord Reed at para 74(4)), an appellate court should be slow to find fault in a tribunal decision which has taken into account all of the relevant circumstances and contains an apparently well-reasoned conclusion. The appellate court is restricted to adjudicating on whether there is an error of law in the tribunal decision (Tribunal, Courts and Enforcement Act 2007, s 13).
[14]      In making judgments upon proportionality in the context of Article 8 claims in immigration cases, a tribunal will require to take into account a number of circumstances, albeit that it may not need to revisit or expressly repeat findings covered already in its decision under the Rules. The European Court of Human Rights has emphasised that, in assessing Article 8 claims in the immigration context, regard must be had to the fair balance that has to be struck between the competing interests of the individual on the one hand and the community as a whole on the other (Jeunesse v Netherlands (2015) EHRR 17, para 106). Article 8 cannot be seen as imposing on a state a general obligation to respect a married couple’s choice of their country of residence or to authorise family reunification in its territory (ibid at para 107).
[15]      The extent of a state’s obligation will vary according to the particular circumstances of the persons involved and the general public interest. Factors to be taken into account in this context include: the extent to which family life would in fact be ruptured; the extent of the parties’ ties in the contracting State; whether there are obstacles (insurmountable or otherwise) in the way of the family living in the country of origin of the applicant for leave; and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (Butt v Norway (App no 47017/09), 4 December 2012, at para 78, following Nunez v Norway (App no 55597/09), 28 June 2011 at para 70 citing, inter alia, Da Silva v Netherlands (2007) 44 EHRR 34 at para 39).
[16]      Most important in a case of this nature, the European Court has repeatedly said that, where the family life is created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of family life within the host state would from the outset be precarious, it is likely to be only in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (Jeunesse v Netherlands (supra) at para 108; Da Silva v Netherlands (supra) at para (39); Butt v Norway (supra) at para 78).
[17]      A significant problem which the court faced in interpreting Mirza v Secretary of State for the Home Department (supra), was the sentence (in para [19]), under the heading “Discussion”, and following separate headings for the parties’ arguments, which reads “The assessment had to be conducted on the basis of separation of the couple”. This was replicated in the appellant’s written Note of Argument and, not surprisingly, founded upon heavily by him in oral submission. This was entirely understandable until, as was submitted by the respondent, it is realised that in this particular passage, the court appears to be reprising a submission. It is not part of the ratio decedendi. This finds support in the citation of Sanade and Others (British Children-Zambrano-Dereci) [2012] Imm AR 3 as supportive of the “petitioner’s position” rather than underpinning the reasoning of the court. In Sanade, the concession made by the respondent’s civil servant appears to relate to the engagement of Article 8, not to the assessment of proportionality.
[18]      There is no reason requiring the decision-maker to proceed on the basis that a couple will inevitably be separated by removal of the applicant. In many cases, the evidence may point to the contrary. Relocation to the applicant’s country of origin outside the EU may involve minimal inconvenience. The tribunal has to decide, in a precarious case, whether it is proportionate to require the British, and hence EU, citizen to make a choice between separating or relocating pending determination of an application to enter as a dependent spouse. One factor in the tribunal’s assessment must be the practical possibility of relocating. The assessment will depend upon many factors. In some, perhaps most, cases the evidence on just what the British citizen will do may be unclear. Whether that is so or not, the tribunal need not proceed on an assumption that the couple will separate, or indeed that they will not do so. The ultimate proportionality assessment remains one of considering all the circumstances.
[19]      Jeunesse v Netherlands (supra) was not cited in Khan v Secretary of State for the Home Department (supra), in which the Court rejected (at para [11]) the need for exceptional circumstances. On the face of Jeunesse, whilst not ignoring the need to treat many European Court cases as decisions applicable only to their particular facts, the contention that an appellant does not require to demonstrate exceptionality, where there is a known precarious status, is not a sound one; even if exceptionality is not to be elevated into a formal test. The reasoning of Sales LJ in R (Agyarko) v Secretary of State for the Home Department [2016] 1 WLR 390 is highly persuasive in its exploration (at paras 29 and 30) of the need for exceptional circumstances and the dimensions of the gap between these circumstances and insurmountable obstacles in precarious family life cases. By such circumstances may simply be meant the identification of weighty factors in favour of an application sufficient to overcome the normal result in this type of precarious status case (Re Izuazu (Article 8-New Rules Nigeria) [2013] Imm AR 453, Blake P at paras 69 and 78).
[20]      Confronting the authorities of the host country with family life as a fait accompli does not, in itself, result in those authorities being under an obligation to allow the applicant to settle in that country (Jeunesse, supra, at para [103]. On the contrary, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them (Da Silva v Netherlands ((supra) at para 43).
28. Mr Winter in submissions did his best to breathe content into the decision. The statement that elaborate re-statements of multi-facetted tests are seldom necessary at first instance level chimes to some extent with the argument that the UT should be slow to hold that the FtT as an expert tribunal misdirected itself on the law, or to find fault in a decision which has considered all relevant circumstances and contains an apparently well-reasoned conclusion. In this case, however, consideration of the circumstances by reference to the appropriate tests is absent, beyond the point of these being implicit.
29. The decision of the FtT fails to observe the high level of the tests to be met, or the principle that it is likely to be only in exceptional circumstances that removal of the non-national family member will constitute a violation of Article 8
30. The judge’s reference to article 8 being “engaged” cannot be read as the application of the relevant tests in the rules, statute and case law. By reference to all these sources, legal error is apparent, such that the decision of the FtT requires to be set aside.
Remaking the decision.
31. The UT’s standard directions (issued to parties with the grant of permission and notice of hearing) presume that remaking will proceed based on the evidence which was before the FtT, and of submissions. There has been no suggestion that further evidence ought to be admitted, or that any evidence already heard should be rehearsed again. There is no outstanding dispute on the primary facts. In accordance with s.12(2) of the 2007 Act, with Practice Statement 7, and with directions, the case is apt not to be remitted to the FtT but for the decision to be remade by the UT.
32. The parties mainly affected are the appellant, her daughter, and Mr Hart, but two others are also mentioned; the father of the appellant’s child, and Mr Hart’s daughter.
33. In respect of the father, there is only a faint suggestion on the appellant’s side that he has some settled status. The respondent has clearly had dealings with him, and has no record of a grant of status. He did not mention to the respondent any relationship with the child. He appears to have had some contact recently, but there is nothing which suggests that the relationship is of major importance in her life. Her departure from the UK would probably much reduce such contact as there is. There is nothing to show that would be significantly detrimental to her best interests. On all the evidence, her direct and principal carer is and has always been only her mother.
34. Mr Hart’s daughter has regular and close contact with him, although her principal carer appears to have been her mother. She has now become, or is about to become, an adult. The significance of family relationships of course does not terminate at that point. If her father were to move to Malawi, that would not end all contact between them. Visits, telephone calls and other communications would be open to them. There is no evidence that if her father were to live abroad, she would be significantly affected.
35. If the appellant were to be removed, she and Mr Hart would be put to an unwelcome choice. They would strongly and understandably prefer to carry on their family life in the UK. However, choices such as they face are inherent in the rules. The situation is common to all couples who are unable to meet the terms of the rules.
36. Mr Hart has had health problems, but he is back at work.
37. There is no evidence which might reasonably be held to reach the level of “very significant difficulties … which could not be overcome or would entail very serious hardship”.
38. The appellant’s daughter is thriving in her mother’s care and in the early stages of her education. There is no evidence that she would not continue so to thrive in Malawi, or that moving there with her mother would have any significantly adverse effect on her best interests.
39. It was not suggested that the appeal should succeed on the Chikwamba basis. If the appellant can in the future make an application from abroad which meets the terms of the rules, well and good; but there is no evidence at present that she would be able to do so. Even if so, given the immigration history it would be reasonable to expect her to comply with the rules. It is not shown that would involve any great inconvenience.
40. Taking account of all family relationships involved, and of the best interests of the child as a primary but not paramount consideration, there is nothing which discloses that the appellant has a right under article 8 to remain in the UK, unless in compliance with the immigration rules. No circumstances are shown by which it would be disproportionate to expect her departure.
41. The appeal, as originally brought to the FtT, is dismissed.
42. No anonymity order has been requested or made.

2 March 2017
Upper Tribunal Judge Macleman