England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		17 March 2016

1. LORD JUSTICE TOMLINSON: This is a renewed application for permission to bring what is effectively a second appeal.
2. It is in form an appeal against a decision of Deputy Upper Tribunal Judge Pickup promulgated on 12 June 2015, although as it has developed it also comprises an appeal against a grant of permission to appeal to the Upper Tribunal granted by First-tier Tribunal Judge Davis on 24 February 2015 and also a challenge to the conclusion reached by Deputy Upper Tribunal Judge Pickup when after a hearing on 17 April 2015 by a promulgation of 21 April 2015 he determined that the decision of the First-tier Tribunal involved the making of errors on points of law such that the decision should be set aside, although he did not at that stage remake the decision so that the outcome of the appeal remained to be decided.
3. The Appellant is a national of Bangladesh. He came to the United Kingdom in 2009 with leave as a student. His leave was extended. In an extension application in 2012 he submitted an English language test certificate allegedly taken at the London School of Technology on 7 April 2012. On that basis, he was granted further leave to remain until 30 July 2013.
4. In May 2013 he submitted an application for leave to remain as the spouse of Anwara Khatun. Anwara Khatun is a British national of Bangladeshi origin. On that occasion, he tendered the same English language test certificate. He was granted further leave to remain as a spouse until November 2015.
5. In July 2014 he and his wife went to Bangladesh together. Upon their return on 16 August 2014 he was questioned by immigration officers about his 2012 English language certificate. He then admitted that he had not taken the test and that he had paid someone else to take it for him. Accordingly, the Defendant refused the Claimant leave to enter the United Kingdom and cancelled his then current entry clearance on the basis that he had admitted in interview that the English language test had not been taken by him and that he had relied upon a fraudulently obtained certificate.
6. The Appellant challenged that decision before the First-tier Tribunal. First-tier Tribunal Judge Coleman, to whose decision I have already referred, found, applying exception EX1 in the rules, that there would be insurmountable obstacles to family life subsisting between the Appellant and his wife continuing outside the United Kingdom in Bangladesh. The judge went on to deal with the matter under Article 8 outside the rules and concluded that the impact of the decision made by the Secretary of State was disproportionate to the legitimate aim of maintaining immigration control.
7. Judge Pickup set aside that determination on the grounds that, as is now accepted, the decision of the First-tier Tribunal to allow the appeal under the Immigration Rules was misconceived because exception EX1 was not engaged because the Applicant did not meet the suitability requirements stipulated in the rules. Judge Pickup also regarded the fact that the Claimant did not meet the suitability requirements as a highly relevant fact to the proportionality assessment required under Article 8.
8. He concluded that the error in relation to the Immigration Rules necessarily infected the proportionality assessment as the balancing exercise was not conducted fairly in the public interest and in particular that the judge in the First-tier Tribunal had failed to have proper regard to the considerations in section 117B of the Immigration Act 2014 and in particular the reference there to the maintenance of effective immigration control being in the public interest.

Mr Basharat Ali, who appears today for the Applicant, has made wide ranging submissions which are reflected in his grounds of appeal and skeleton argument.

I make it plain straightaway that insofar as concerns the attack upon the grant of permission to appeal by Judge Davis, I am satisfied that there are no arguable grounds. The question whether exception EX1 was engaged was squarely in issue, as was the circumstance that the First-tier Tribunal Judge had, as it seems to me, reached a wholly aberrant conclusion to the effect that the marriage was not a relationship knowingly entered into when the Appellant's immigration status was precarious.

I am, however, prepared to grant permission to appeal on two grounds and two grounds only. The two grounds that have emerged in the course of argument this afternoon, very shortly stated, are these.

First, Upper Tribunal Judge Pickup at paragraphs 10 and 11 of his determination of 12 June 2015 relied upon a passage at paragraph 18 of the decision of the Upper Tribunal in AM (S 117B) Malawi [2015] UKUT 0260 (IAC) which in turn expressed views as to the relevance of the ability of an applicant to speak the English language and his financial independence in terms which, Mr Ali submits, betray a misunderstanding of the purpose of the statutory provision.

What Judge Pickup appears to me to have read the decision in AM as indicating is that fluency in English and financial independence do not of themselves enhance a claimant's case under Article 8, although the lack of them substantially damages such a case. Judge Pickup regarded that as very similar to the obvious circumstance that a person's human rights are not enhanced by not committing criminal offences, as was discussed in Nasim & Others (Article 8) [2014] UKUT 0025 IAC.

Nonetheless, Mr Ali informs me that there is pending an application for permission to appeal to this court in AM. He submits that there is a point of principle here involved, which is the extent to which when considering a case pursued under Article 8 it should be regarded as, as it were, telling in the Applicant's favour that he is able to speak English and will not be a financial burden on the taxpayer, he submitting that those are matters which can properly be taken into account as redounding to an applicant's credit rather than the absence of those features simply being a factor which can be relied upon by the Secretary of State as indicating that it is not in the public interest that persons lacking those attributes should be permitted to remain because they are less well able to integrate into society than those who have those attributes. That is, as it seems to me, a point which is worthy of consideration by this court.

The other point is a somewhat curious point, which is this. Judge Pickup regarded the statute, that is to say section 117B of the Immigration Act 2014, as mandating the approach that little weight should be given to the marriage contracted by the Applicant with his British national wife because that marriage was entered into at a time when the Applicant was in the United Kingdom unlawfully.

Mr Ali refers me to the decision of the Upper Tribunal, or the Asylum and Immigration Tribunal as it then was, in the case of NM (Zimbabwe) [2007] UKAIT 00002 to the effect that the Secretary of State has power to curtail leave to remain prospectively although not retrospectively under paragraph 323(i) of the Immigration Rules. It may be that it is for that reason that Judge Pickup here referred to the Claimant's status in the UK at the relevant time as being "effectively unlawful".

For my part, I would have regarded it as highly relevant to take into account that this marriage, whatever the lawfulness of the Applicant's status, was contracted at a time when his immigration status was precarious because, as it seems to me, a person who has obtained leave to remain upon the basis of a false certificate must realise, and it is in any event the case, that he is liable to be removed at any time once his deceit comes to light.

But as Mr Ali has pointed out, section 117B draws a distinction between family life and private life in this regard, providing by sub-section 4 that little weight should be given to a relationship formed with a qualifying partner that is established by a person at a time when the person is in the United Kingdom unlawfully and similarly, little weight should be given to a private life established by a person at that time when the person is in the United Kingdom unlawfully, whereas sub-section 5 prescribes simply that little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.

From that it follows, submits Mr Ali, that the judge was wrong to regard section 117 as mandating the giving of little weight to a marriage contracted at a time when the immigration status was precarious and that could not be said to be unlawful because the leave could not be cancelled retrospectively.

I have to say that if that argument is right, I shall be astonished, but I cannot say, at any rate after such consideration of the point as is possible on an application for permission to appeal of this sort, that the argument has no prospect of success bearing in mind the manner in which the statute is drafted. That again, as it seems to me, is a point of principle which should be considered by this court. It may well be that there is an answer to it which is not immediately apparent to me.

I am, therefore, prepared to grant permission to appeal on those two distinct grounds. Those grounds are effectively the two matters which are referred to at paragraphs 8 and 9 of Mr Ali's revised grounds of appeal dated 20 November 2015. I make it very clear that I do not grant permission to pursue any of the other grounds which are raised under the rubric of some other compelling reason to hear the appeal. So I grant permission to appeal on those two grounds only.