Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/01267/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 April 2017
On 21 April 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

wagma abdulzai
(Anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr S Staunton, Senior Home Office Presenting Officer
For the Respondent: Mr S Harding, Counsel instructed by J McCarthy Solicitors
DECISION AND REASONS
1. The Appellant, hereinafter “the Secretary of State”, appeals a decision of the First-tier Tribunal on 6 September 2016 to allow an appeal by the Respondent, hereinafter “the Claimant”, against a decision of the Secretary of State, by an Entry Clearance Officer, to refuse her entry clearance to the United Kingdom as a visitor.
2. The First-tier Tribunal appreciated that it could consider only human rights grounds and expressly allowed the appeal on human rights grounds having decided that the interference in the private and family life of the Claimant consequent on refusal would be disproportionate.
3. This is, in essence, an appeal brought in the first instance by a wife who wishes to visit her husband who is temporarily in the United Kingdom. She succeeded before the First-tier Tribunal. The Secretary of State’s grounds of appeal against that decision note that the Claimant was refused entry clearance to visit her husband because the Entry Clearance Officer was not satisfied that she was a genuine visitor who intended to leave the United Kingdom at the end of her visit.
4. The alleged error of law was that, according to the Secretary of State, the First-tier Tribunal was wrong to find that an application by a visitor in these circumstances could come within the protection of Article 8 of the European Convention on Human Rights. According to the grounds the Claimant’s husband has visited her in Pakistan and so there was “no reasons advanced as to why this pattern of visits may not continue other than expense”. The grounds further complain that the Tribunal was wrong to find any interference disproportionate and the Secretary of State wanted to appeal.
5. Before me Mr Harding confirmed that there was no Rule 24 notice. He reminded me that the Secretary of State had not appeared before the First-tier Tribunal and that lack of assistance might explain some of the thin reasoning on the part of the First-tier Tribunal Judge.
6. I begin by looking carefully at the decision the First-tier Tribunal actually made.
7. The Tribunal noted that the Claimant had applied for permission to enter as a visitor and the application was refused on 18 December 2014. The decision purported to have taken account of the Claimant’s financial and employment information, passport and travel history, family circumstances and supporting documents provided.
8. The Secretary of State recorded that the Claimant wished to visit her husband who had discretionary leave to remain in the United Kingdom. The Secretary of State complained that the Claimant had presented her marriage certificate but that, on its own, was insufficient corroborating evidence of the relationship to show that the relationship was a subsisting relationship. The Secretary of State also complained that although the Claimant had been employed in Afghanistan she had not provided any evidence of any dependent relatives, property, other investments or assets which would encourage her to return to Afghanistan at the end of her visit.
9. The Secretary of State was aware that the Claimant’s husband had applied for permanent leave to remain in the United Kingdom and decided that the application for entry clearance as a visitor was an attempt to get into the country when she could not be admitted as a wife. The Secretary of State was not satisfied that this was a genuine application. The decision was reviewed and upheld.
10. The Claimant provided a “substantial bundle of documents” and the Claimant’s husband explained to the First-tier Tribunal that they were both fully aware that they could not make an application for settlement because he only had limited leave to remain in the United Kingdom. He said that he intended to ensure that his wife returned to Afghanistan after her visit and would not breach conditions because that could impact adversely on any future application such as an application to enter for settlement.
11. The Claimant’s husband had said in evidence that he had applied for indefinite leave to remain but did not accept that there was anything odd about his wife applying for leave as a visitor while that application was being processed. He anticipated that that application would take another six months or so and he wanted to see his wife. He said it was very expensive to travel to Pakistan although he had met his wife in Peshawar where she had travelled to meet him.
12. The Claimant’s husband told the First-tier Tribunal Judge that he had been advised that he could expect to be in a position to provide for his wife to apply to join him when he had settled status and that the possibility of their living together would be delayed substantially if they made a bad immigration history.
13. The Judge gave little explanation for his decision that refusing the application was a disproportionate interference with the private family life of the Claimant and/or her husband. Mr Harding submitted that the explanation was sufficient when the determination was read with care.
14. I have read the reasons for refusal of entry clearance dated 18 December 2014. There the Secretary of State said that she was not satisfied that the Claimant and her husband were in the claimed close relationship they alleged and so doubted that the Claimant’s husband would maintain and accommodate her in the United Kingdom. She was further not satisfied that the Claimant was genuinely seeking entry for the limited period stated by her or that she intended to leave the United Kingdom at the end of the proposed visit or that she did not intend to take employment in the United Kingdom.
15. It would have been better if the First-tier Tribunal Judge had made explicit findings about the Claimant’s ability to satisfy the Rules. Such findings would not have determined a balancing exercise for the purposes of Article 8 but it would have been illuminating and it should have been done.
16. That said it is quite plain that the First-tier Tribunal accepted that there was a genuine marriage and that there was a strong incentive to obey the Rules so that no future application was prejudiced. It could have been expressed better but I am quite satisfied that the judge did have in mind the requirements of the Rules and was satisfied that the Claimant would obey the Rules if only because she had every intention of making a successful application to return and settle in the United Kingdom when that was permitted.
17. These findings of fact have not been challenged in the grounds.
18. I have reflected on the contention that Article 8 is not even engaged in this case and I reject it. There can be few human relationships more important than those between husband and wife and although there are many circumstances in which the requirements of immigration control can prevent properly a husband and wife living together unless there is a clear finding there is a sham marriage or a marriage that has become moribund it seems to me that any decision that stops a husband and wife living together will be an interference with their private and family lives and will come within the protection of Article 8 of the European Convention on Human Rights even if on closer examination it transpires that it is an interference that is lawful, necessary and proportionate. I reject completely the criticism of the judge for making that finding.
19. Neither can I see any basis for criticising his decision that refusing the application is other than a disproportionate interference with Article 8 rights when, as the judge found to be the case here, the appellant satisfies the requirements of the Rules.
20. It follows therefore that I find no error in the decision and I uphold the decision of the First-tier Tribunal.

Notice of Decision

The Secretary of State’s appeal is dismissed.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 19 April 2017