Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2024-002879
[HU/56876/2022]

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 21 February 2025
On 4th of March 2025

Before

Deputy Upper Tribunal Judge MANUELL

Between

MR MAHDI AIT-KHALIFA
(NO ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Winter, Counsel
(instructed by Latta & Co Solicitors)
For the Respondent: Mr J Thompson, Home Office Presenting Officer

DECISION AND REASONS

1. Permission to appeal was granted by Upper Tribunal Judge Reeds on 22 July 2024 against the decision to dismiss the Appellant’s Article 8 ECHR appeal made by First-tier Tribunal Judge Hands in a decision and reasons dated 26 April 2024.

2. The Appellant, a national of Algeria, born on 7 June 1990, had sought to leave to remain in the United Kingdom outside the Immigration Rules on the basis of his family and private life in terms of Article 8 ECHR. The Appellant, an overstayer since 2015, claimed to be the partner of Ms Sharyn Waddell, a British citizen. He claimed that his departure would have a detrimental effect on his mental health, the mental health and moral well-being of his partner and the moral well-being of his partner’s daughters and mother. The Appellant also said that there would be significant obstacles to his reintegration into the Algerian culture because of his failure to undertake military service, the lack of family support and the lack of employment opportunities he would have there. He claimed that he would be left destitute, resulting in unjustifiably harsh consequences for him. The Appellant also claimed that his partner could not live in Algeria with him because of the cultural difficulties she would face as well as the strength of her family ties in the United Kingdom.

3. Judge Hands found in summary that, given the disregard and lack of respect both the Appellant and the sponsor had shown for the laws and the authorities in the United Kingdom, she could not rely on them as being witnesses of the truth. The discrepancies in their evidence caused her concern about what they said would happen in Algeria should they live there and what would happen if the Appellant returned to Algeria alone. His failure to complete military service prior to leaving Algeria was not an insurmountable obstacle to his reintegration to life in Algeria. Neither of them was interested in religion so that would not be an issue for them in relation to Algerian society. The Appellant had not provided sufficient reliable evidence to demonstrate that he and his partner, having married in Islamic law, would be considered as an unmarried couple in Algeria. It would not be unjustifiably harsh on the Appellant, or his partner, to expect him to return to Algeria. The interference in the Appellant’s family and private life, for the maintenance of effective immigration control, was proportionate. The Appellant’s appeal did not succeed outside the Immigration Rules or in terms of Article 8 ECHR. There were no exceptional circumstances. Hence the appeal was dismissed.

4. Eight grounds of appeal were advanced to the Upper Tribunal, grouped under the banner of proportionality, as follows:
Ground (i) was withdrawn at the hearing so may be ignored. Ground (ii) The Judge when assessing proportionality at [50] used the test under Paragraph EX.1 in terms of insurmountable obstacles, which the Judge had referred to at paragraph [30], of whether obstacles can be overcome. The Judge had in mind the wrong test and equated the test of insurmountable obstacles with that to be applied to the proportionality assessment. Ground (iii) The Judge erred in law at [39] by looking to see if the Appellant’s partner would be persecuted or would face serious harm in Algeria for practising her religion. The Judge misapplied the law as it is not necessary in the proportionality exercise to show that the Appellant’s partner would be persecuted.
Ground (iv) The Judge did not reach a clear finding as to whether it was proportionate for the Appellant’s partner to go to Algeria with him.
Ground (v) Although it was said that the Judge looked at whether it was proportionate for the Appellant’s wife to go to Algeria, the Judge erred in law by failing to take account of material factors which were relevant to that assessment.
Ground (vi) The Judge found that the Appellant could apply through proper immigration channels to join his partner in the United Kingdom, i.e., apply for entry clearance. But entry clearance was not relied on by the Home Office making that an irrelevant factor.
Ground (vii) The Judge found that there was no interference with the Appellant’s partner’s Article 8 ECHR rights. At [44] the Judge found that the refusal did not impact on the lives of the sponsor and her daughters as they would remain in their family home and live together as a family. That was a contradictory finding: see [56] where the Judge accepted there would be an interference in the Appellant’s family life. [44] was irrational where the Judge had accepted that family life was established. Ground (viii) The Judge had accepted that family life was established, yet erred at [27] when finding that the Appellant and his partner were not witnesses of truth. The Judge failed to state whether she accepted the evidence of the appellant’s daughter.

5. Permission to appeal was granted by Upper Tribunal Judge Reeds because it was considered arguable that although the Judge found that there were no insurmountable obstacles to family life being established in Algeria, the Judge did not ask or answer the question whether it would be reasonable for the Appellant’s partner to go to Algeria with the Appellant. The Judge considered whether it would be reasonable for the Appellant to return to Algeria. It may be said that the findings when read together should be seen as answering that issue however it was a matter for argument as to whether or not the Judge asked herself the correct question when undertaking her overall analysis and whether that was missing from the assessment of proportionality. Paragraph (v) of the grounds were also arguable in relation to other risks pertaining to the Appellant’s partner. As to the issue of entry clearance it was dealt with in the briefest terms of [60], and it is unclear how or in what way that was argued before the Judge. Upper Tribunal Judge Reeds did not seek to restrict the grounds of challenge as she considered that they were all interlinked. It would be for the Appellant’s representatives to demonstrate the materiality of any errors identified in light of the factual findings made and the issues raised.

6. There was no rule 24 notice but permission to appeal was opposed by the Respondent.

7. Mr Winter for the Appellant relied on the grounds of appeal and the grant of permission to appeal. He submitted in summary that there was a lack of clarity in the Judge’s findings about the reasonableness of the Appellant’s partner going with him to Algeria. The evidence had not been covered. Entry clearance had not been raised by the Home Office. That was important because of the delay factor. The seven grounds showed the cumulation of errors. The judge’s determination was unsafe and should be set aside. The error of law appeal should be allowed.

8. Mr Thompson for the Respondent submitted that sustainable findings had been reached and explained. There was no material error of law. It was clear that the Judge had considered the reasonableness of the Appellant’s partner going with him to Algeria, which had been extensively addressed. For example, it was relevant, as the Judge had noted, that the Appellant’s brother had wed a non-Muslim wife with no adverse consequences for family relations. The Judge had expressly considered the country expert’s report in several paragraphs. No obstacles which could not be overcome were found. The Judge had considered all of the evidence and was not required to have gone into greater detail. Proportionality and reasonableness had been fully covered. The onwards appeal should be dismissed.

9. Mr Winter reiterated the points he had made earlier by way of reply. The Judge had made no finding about the Appellant’s partner’s daughter’s evidence. The wrong tests had been applied. The errors of law were material.

10. The Tribunal finds that there was no error of law in Judge Hands’s decision, so that the onwards appeal must be dismissed. As Upper Tribunal Judge Reeds observed when granting permission to appeal, this is a carefully reasoned decision by the Judge who considered the evidence relating to the Appellant and his partner both in the United Kingdom and in Algeria and by reference to the country report commissioned on behalf of the Appellant. The Tribunal agrees with and endorses those observations. Frankly it is not easy to see why permission to appeal was granted at all, especially given that this was far from a compelling case on any view.

11. The seven grounds advanced were no more than seven tangled if not quasi perverse ways of expressing dissent from the experienced Judge’s comprehensive decision and her crucial adverse credibility findings. All seven grounds derive from a distorted and selective reading of the decision, rather than a sensible reading of the decision as a whole. As Mr Thompson submitted, the Judge’s decision was properly reasoned and demonstrated that all of the evidence put forward by the Appellant or on his behalf had been carefully considered. That was expressly stated by the Judge at [22] and a full structured analysis followed, examining each of the elements of the case advanced by the Appellant. For example, the evidence given by the Appellant’s sponsor’s daughter was sufficiently examined at [51], contrary to the assertion in the grounds (viii). The expert evidence, medical and country background, was fully considered. Proportionality was a continuous thread running through the whole decision, as the Judge stated at [13]. The Judge applied the correct, balancing exercise approach to proportionality, not simply the test of insurmountable obstacles (grounds (ii)). The Judge explained why she found that it was reasonable for the Appellant to return to Algeria and that it was reasonable for his partner to accompany him there if she wished to do so: see [47] to [50] (grounds (iv) and (v)).

12. At no point in the decision did the Judge fail to follow her self direction as to the standard of proof of the balance of probabilities. The Judge’s reference to “persecution” at [39] was merely to emphasise that the Appellant’s partner might face (at most) some degree of societal discrimination if, contrary to the Judge’s main finding, she chose to practise her religion by church-going which she had not recently done in the United Kingdom (grounds (iii), (iv) and (v).

13. The submission that the Judge should not have considered the possibility of the Appellant’s seeking entry clearance from Algeria because that had not been raised in the reasons for refusal letter has no merit (grounds vi). There was no need for the reasons for refusal letter to mention entry clearance because the Appellant was not subject to a deportation order and therefore was free to depart from the United Kingdom and to make an application from abroad under Appendix FM in the usual way. The Judge did not make the future possibility of entry clearance part of her proportionality evaluation, but merely mentioned at [60] the obvious fact that it could be available.

14. As to the assertion in the grounds that the Judge reached inconsistent findings about family life (grounds vii), that is plainly wrong and is based on taking findings relating to individual elements of the case out of context. It was necessary for the Judge to consider the family life of both the Appellant and his partner, given the partner’s claims about her mother and daughters.

15. Thus in the Tribunal’s judgment the First-tier Tribunal Judge reached sustainable findings, in the course of a thorough determination, which securely resolved all of the issues. There was no material error of law.

DECISION

The appeal to the Upper Tribunal is dismissed.

There was no material error of law in the First-tier Tribunal’s decision and reasons, which stands unchanged.

Signed Dated 25 February 2025

R J Manuell
Deputy Upper Tribunal Judge Manuell