Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005985

First-tier Tribunal Nos: HU/52602/2024
IA/00985/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 09 April 2025

Before

UPPER TRIBUNAL JUDGE McWILLIAM
DEPUTY UPPER TRIBUNAL JUDGE DAVIES

Between

KABIR MOHAMMAD NOORI
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr M Osman, Times PBS Solicitors
For the Respondent: Mr E Tufan, Home Office Presenting Officer

Heard at Field House on 27 March 2025

DECISION AND REASONS
1. The Appellant is a citizen of Afghanistan. His date of birth is 18 April 1994.
2. The Appellant was granted permission to appeal against the decision of the First-tier Tribunal Judge Gillespie (“the judge”) to dismiss his appeal against the decision of the ECO to refuse him entry clearance on 8 December 2022. He had made an application for family reunion. The application was refused under the Immigration Rules and Article 8.
3. The Appellant is married to the Sponsor. They are cousins. She entered the UK with her father under the Afghanistan Locally Employed Staff Scheme (ALES) as a result of her father’s employment with the British government in Afghanistan.
4. There are five grounds of appeal. They are discursive and diffuse. They all challenge the judge’s assessment of proportionality under Article 8 ECHR. We have done our best to distil them as follows:
(a) The judge did not carry out a structured assessment of proportionality with reference to R (Razgar) v SSHD [2004] UKHL 2.
(b) The judge did not take into account:
(i) The risk to the Appellant in Afghanistan as a result of his father-in-law’s employment.
(ii) The risk to the Sponsor in Afghanistan specifically as a result of her father-in -law’s activity, but also from the general situation.
(iii) The inability of the Appellant to meet the Rules because of the circumstances in coming to the UK.
(iv) The Sponsor’s vulnerability.
The Appellant’s case
5. The Appellant made an application for family reunion. Whilst acknowledging that the Sponsor was not a refugee, it was submitted on behalf of the Appellant that people who qualified under ALES were de facto refugees.
6. It was impossible to succeed under the Appendix FM immigration rules (“the rules”). The Sponsor had been unable to find work primarily due to her lack of experience and that she cannot speak English. The Appellant’s exclusion from the UK resulted in harsh consequences and was not justified by the public interest in immigration control. The Sponsor has been referred to a psychiatrist for mental health issues as a result of her experience, the stress of the visa application and her husband’s ongoing lack of safety. Whether the Appellant is at risk or otherwise in Afghanistan is irrelevant. The issue is whether the couple can have family life in Afghanistan and whether there are insurmountable obstacles to family life in Afghanistan. The fact that she had been granted leave to enter under ALES was evidence that the Sponsor is at risk. She is also at risk as a woman returning to Afghanistan.
The decision of the First-tier Tribunal
7. The judge heard evidence from the Sponsor who said that her husband was not considered under the ALES application because they were married after it was granted. The judge said that she had not been shown any evidence why the Sponsor was included in her father’s application “whether for example it was necessary that she be single and living within his household at the time or in fact what the specific risk factors were that extended to her”. The judge noted that she had married shortly before her family’s migration and said that it was unclear why she did this or why having done it she left her husband behind and why her marital relationship with him ranked behind her own coming to the UK with her family.
8. The judge said that in the Appellant’s visa application he said he was living in a house owned by his father in Kabul and paying him rent. The judge said that this suggests a settled existence and income. The judge said that he did not accept what was said about his circumstances being irrelevant. The case was that the Appellant said he was at risk but this was not made out.
9. The judge said that exceptional circumstances must in substance amount to unjustifiably harsh consequences which would render the refusal disproportionate and reminded himself that these circumstances are rare: Agyarko v SSHD 2017 SC 11. The judge found that it may be very challenging to live under the Taliban regime as a woman but that he was not persuaded that this would amount to unjustifiably harsh consequences, absent some specific risk affecting the Sponsor.
10. The judge said at [25] that he had considered the Appellant’s right to family life applying the principles in R v SSHD ex parte Razgar [2004] UKHL. The judge said at [26] that it was accepted that the parties had married and having done so the judge accepted that there is great disappointment and possibly mental health consequences for the Sponsor in not having the Appellant join her in the UK. The judge found a number of factors weighed against the Appellant in favour of the public interest. The judge took into account factors set out in s.117B of the 2002 Act and that the maintenance of an effective immigration control is in the public interest. The judge said that the Appellant cannot meet the rules and that this was a matter of significant weight in the public interest side of the proportionality assessment and that although complaint is made by the Appellant about the high income hurdle that is required under the Rules “this is the will of Parliament reflected in Appendix FM”. The judge said that there are many young British citizens who as Sponsors are unable to meet this and that he was not persuaded that the Sponsor, as a non-refugee Afghan national, should be privileged ahead of them.
11. The judge took the view that the marriage was of a short duration when the Sponsor left Afghanistan which had been entered into about the time her family were due to leave.
12. The judge said that it was in the public interest that persons seeking to enter or remain can speak English had that he had not been shown any evidence that Appellant could speak English. The judge said that the Appellant and the Sponsor had not established that they are financially independent. The judge concluded that the factors raised by the Appellant are outweighed by the public interest because he does not meet the requirements of the Rules and factors in s.117B weigh against him.
Error of Law
13. The application was made under the rules for family reunion. However, it is accepted that the Sponsor is not a refugee and therefore the Appellant cannot succeed on this basis. The SSHD’s guidance (Family reunion: for individuals with protection status in the UK version 10.0 published on 17 July 2023) specifically states that individuals brought to the UK under the Afghan Relocations Assistance Policy (ARAP) and Afghan Citizens Resettlement Scheme (ACRS) Pathways 1 and 3 do not have protection status and therefore are not eligible to sponsor family members under the refugee reunion rules. It is accepted that the Appellant cannot succeed under Appendix FM. We understand that the ALES scheme has been replaced by ARAP.
14. We agree that the judge materially erred in the assessment of proportionality. He did not consider insurmountable obstacles to family life which was relevant to the proportionality assessment (it is not determinate as said by the Appellant). His finding at [24] that it may be very challenging for women to live under the Taliban, is an understatement, taking into account the background evidence which was not brought to the judge’s attention. The parties did not bring it to our attention either. We have considered the Country Policy and Information Note: Afghanistan: Fear of the Taliban version 4.0 August 2024 (“the CPIN”). At para 3.1.2 of the guidance it is stated that women are likely to be at risk from the Taliban. At para 3.7.1 it is said that women and girls are subject to widespread and systematic discrimination which is general amounts to persecution. We have considered para 14 of the guidance which cites a 2023 report by the UN Rapporteur which talks of a widespread, systematic and all-encompassing attack on the rights of women and girls and that the large-scale violations of women and girls’ fundamental rights abetted by the Taliban’s discriminatory and misogynistic policies and harsh enforcement methods constitutes gender persecution and an institutional framework of gender apartheid at paras 14.1.2 and 14.1.3. We cannot say with certainty that if the judge’s attention had been drawn to the background evidence it would not have made a difference to the outcome. We set aside the decision of the judge. In so far as the other issues raised in the grounds are concerned they do not amount to stand alone errors. However, the errors are material and there needs to be a fresh assessment of proportionality.
15. Mr Osman asked for the matter to be remitted to the First-tier Tribunal for a re-hearing. We considered AEB v SSHD [2022] EWCA Civ 1512 and concluded that in the absence of a fairness, a procedural issue or further evidence and because of the narrow issue (proportionality) the appeal should be remade in the Upper Tribunal. We took into account the standard directions issued by the Tribunal (“the parties have been directed that there is a presumption that, in the event of the Tribunal deciding that the decision of the FtT is to be set aside as erroneous in law, the re-making of the decision will take place at the same hearing. The parties are expected, therefore, to have complied with rule 15(2A) by providing any evidence which was not before the FtT in advance of the ‘error of law’ hearing”).
16. Mr Osman applied for an adjournment. He said that the Sponsor intended to give evidence. However, no further statement had been submitted and a change in circumstances was not brought to our attention. We did not grant the adjournment. The Appellant has had ample time to provide better and further evidence. The First-tier Tribunal explained the shortcomings in the evidence. The Appellant has been represented throughout and we were told that Mr Osman was instructed in November 2024. Fairness in our view does not demand an adjournment. The Appellant is in Afghanistan and there is no evidence to support that he is at risk and the Sponsor is in the UK. There is nothing to prevent the Appellant from making another application for entry clearance.
17. When deciding venue and the application for an adjournment we took into account the overriding objective set out at Rule 2 of the Tribunal ( Upper Tribunal) Procedure Rules 2008. It is without doubt that the Appellant has had the opportunity to participate in the proceedings and we do not find that fairness demands that the matter should be remitted to the First-tier Tribunal or adjourned for a resumed hearing in the Upper Tribunal.
Re-make
18. Paragraph GEN 3.2 of the rules requires that where an application does not meet appendix FM, it must be considered whether the decision would result in unjustifiably harsh consequences for, in this case the Appellant and the Sponsor. This test requires the tribunal not just to assess the degree of hardship which the applicant or their partner would suffer, but to balance the impact of refusing leave to remain on their family life against the strength of the public interest in such refusal in all the circumstances of the particular case: Lal v SSHD [2019] EWCA Civ 1925 at [68].
19. It is accepted that the Appellant and the Sponsor share family life and Article 8(1) of ECHR is engaged. It follows that the determinative issue is proportionality. Our starting point when remaking, is that there are insurmountable obstacles to family life in Afghanistan following from the general circumstances in Afghanistan for women, as supported by the CPIN. While this is a significant factor in favour of the Appellant, it is not determinative of this application for entry clearance. In support of the Appellant’s case we accept that the Sponsor is depressed and separation from her husband exacerbates this. In support of the Appellant’s case the Sponsor submitted a letter from Brunton Place Surgery from the Sponsor’s doctor supporting that she was registered at the surgery on 21 July 2023 and that she has a history of anxiety and depression. It is said that her mental health has worsened because of the situation in which she and her husband find themselves. There is no reason not to accept that the Sponsor has tried to seek employment. In assessing proportionality we have not exclusively focused on the Sponsor’s rights: Abbas [2017] EWCA Civ 1393. We have considered the impact of the decision on the Appellant. There is no witness statement from him, however, we accept that he will be very disappointed by the separation from his wife. We take into account that whatever the reason why the Sponsor was permitted to come to the UK with her father, it would be wrong to say that there was an element of choice bearing in mind the situation for women in Afghanistan.
20. Throughout the evidence it is stated that the Appellant and the Sponsor married on 21 September 2021. We sought clarification of the timeline. The Appellant’s application for a visa, under the heading “additional information” states that the Appellant and Sponsor were married on 21 September 2021 and lived together after their marriage until the Sponsor’s family left to go to Pakistan. It is further stated that, at the time of the Sponsor’s father’s ALES application, the Sponsor's name was included on the form as she wasn't married yet. Mr Osman informed us that the application was made on 23 February 2022, the same date that the family then went to Pakistan (as stated in the visa application form).
21. That timeline is not consistent with information provided by Mr Osman that the Appellant and the Sponsor married after the ALES application, but before the decision to grant the Sponsor settlement in the UK. We queried what Mr Osman told us about the date of the marriage, noting what is said in the Appellant’s visa application. We note that the Sponsor’s evidence in cross-examination was that the Appellant had not been considered in the ALES application because they were married after the approval of the application. Mr Osman informed us that there had been a religious ceremony, with the marriage certificate having been issued thereafter. None of this chimes with the evidence that the marriage took place on 21 September 2021, days after the completion of the takeover by the Taliban on 15 August 2021 and six months before the ALES application. In the covering letter of 20 January 2023 from the Appellant’s solicitors it is stated that it was not possible for the Appellant to be added onto his father-in-law’s application because of the deteriorating situation in Afghanistan. It may be that the judge when finding that the marriage took place shortly before the Sponsor came to the UK and was of a short duration was confused by the evidence, which is in our view unsurprising. While there may have been an understandable level of confusion as to the timeline, this arose from a lack of completeness and clarity within the documents the Appellant placed before the Judge.
22. In our view the evidence of the time-line is unsatisfactory and the evidence concerning the ALES application and decision lacking in transparency. These factors weigh heavily against the Appellant in the balancing exercise. There was no evidence before the First-tier Tribunal and there is none before us concerning the details of the ALES application made and the decision pertaining to the Sponsor’s father and the basis on which the Sponsor was permitted to join him. While it is clear that the British Government assessed the Sponsor’s father to be at risk, there was no evidence that the Appellant was considered to be at risk as a result of her father’s employment. We note that in the Appellant’s skeleton argument before the First-tier Tribunal it is stated that the Sponsor and Appellant lived together until she fled with her parents and siblings on 23 February 2022. This would suggest that she was not a member of her father’s household or dependant on him. While we find that the Sponsor is at general risk, the evidence concerning specific risk was lacking and ambiguous. Like the judge in the First-tier Tribunal we are concerned about the lack of evidence. The Appellant’s case is that the Sponsor is a de facto refugee. We do not agree. She has not established a specific risk. In relation to the general risk, the Sponsor has not made an application to be recognised as a refugee.
23. The judge was entitled to conclude that there is no evidence to support that the Appellant is at risk. There is no reason for us to interfere with that finding. If he was at risk on account of his father-in-law, then it is reasonable to have expected that he was part of the application to come to the UK under the ALES with his wife as a member of the family or that there would be some evidence concerning risk in Afghanistan. We agree with the judge that the evidence points the other way. In his application for a visa the Appellant said that he is living in his father’s home where he has been living for twenty years. He pays rent to his father. He has given a “business” contact number. He is not destitute or living in conditions of humanitarian need and there is no evidence of risk to him specifically from his marriage to the Sponsor. We agree with the judge that this matter is not immaterial to the assessment of proportionality.
24. The maintenance of effective immigration control is in the public interest. As a matter of fact the Appellant cannot meet the requirements of the rules. There is no evidence that he can speak English or that he is financially independent. While assessing the weight to attach to these factors, we take into account the difficult circumstances in which the Sponsor came into the UK.
25. Mr Osman’s reliance on Al Hassan (Article 8, Entry Clearance, KF (Syria) [2024] UKUT 00234 was misconceived. Every case is fact-sensitive. In Al Hassan, the facts were not contested. The Sponsor was a refugee from Syria. The Appellants are her brother, his wife and their children. When in Jordan the Appellants were at risk of refoulment to Syria where they were at risk of harm.
26. There are material gaps in the evidence and we cannot reasonably be expected to draw inferences in the absence of evidence which the Appellant could have reasonably provided. On the evidence that was before us (which was the same as that before the judge) we find that the decision would not have unjustifiably harsh consequences for the Appellant and or Sponsor.
Notice of Decision
27. The appeal is dismissed under Article 8 ECHR.

Joanna McWilliam
Judge of the Upper Tribunal
Immigration and Asylum Chamber
3 April 2025