(Immigration and Asylum Chamber) Appeal Number: IA/01164/2013
THE IMMIGRATION ACTS
Heard at Field House
On 30 July 2013
On 8 August 2013
Prepared 31 July 2013
UPPER TRIBUNAL JUDGE S V PITT
DEPUTY UPPER TRIBUNAL JUDGE J M LEWIS
Mr Abdul Basit
(ANONYMITY DIRECTION NOT MADE)
For the Appellant: Miss S Saifolahi, Counsel instructed by M & K Solicitors
For the Respondent: Miss J Isherwood, Home Office Presenting Officer
DETERMINATION AND REASONS
The History of the Appeal
1. The Appellant, a citizen of Bangladesh born on 25 February 1983, appealed against a decision of the Respondent of 20 December 2012, explained in a Reasons for Refusal Letter of 18 December 2012, itself a sequel to the earlier refusal of 20 September 2011, to refuse his application for leave to remain in the UK under Article 8 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, which is the qualified right of himself and his wife to respect for their private and family life.
2. The Appellant’s ensuing appeal was heard by Judge Napthine sitting at Hatton Cross on 3 May 2013, before whom both parties were represented, and dismissed in a determination of 26 May which was promulgated the following day. On 25 June Judge Renton granted permission to appeal, which was later supplemented by standard procedural directions, in the following terms:
“The Appellant applied in time for leave to appeal. There is an arguable error of law.
The Appellant appealed on human rights grounds a decision to remove him.
First-tier Tribunal Judge Napthine (the Judge) dismissed the appeal because he was not satisfied that the Appellant had a family life with Nasrin Begum Latif, nor that he had a private life in the UK. The Judge’s reasons for these decisions are insufficient and amount to an arguable error of law. In particular the Judge failed to deal with the evidence that the Appellant had married Nasrin Begum Latif in both religious and civil ceremonies; and failed to deal with the evidence of Abdul Quddus Latif, the Sponsor’s brother. The other grounds are arguable.”
3. The Appellant attended the error of law hearing, which was interpreted to him by an interpreter in the Sylheti language. It took the form of submissions in which the Respondent relied upon the Rule 24 notice of 4 July rejecting any error of law and the Appellant upon the detailed grounds of appeal.
4. We retired for, in the event, 25 minutes to consider these submissions. On return we stated that we had found a material error of law. The challenge to the determination comprised numerous individual challenges to the findings of fact and the inferences drawn from them. Individually none of them might be determinative; cumulatively they were. They included the fact that the evidence of the Sponsor’s brother, who had within the determination been described as for that reason not an independent witness, had not been taken into account on the issue of the relationship and the subsistence of the marriage between the Appellant and the Sponsor; numerous letters, bills and documents addressed to the Appellant and the Sponsor at the same address had not in the same context of their relationship been referred to; the very recent evidence from a pharmacy of the Sponsor’s pregnancy, itself narrated in her supplementary statement, had been incorrectly understood and in consequence not accorded weight; and evidence from the Sponsor’s brother corroborating the role of the Sponsor as the main carer for their sick mother had not been taken into account. Whilst the Tribunal is not required to discuss every item of evidence, it is required to assess the evidence holistically and to reach reasoned conclusions from it. We concluded that cumulatively the determination did not evidence this degree of consideration of the evidence. In consequence the judicial findings of fact, and the inferences drawn from them, were not safe and could not stand. None of them was safe and severable so that the appeal had to be reheard in its entirety.
The Resumed Hearing
5. In readiness for the resumed hearing, Miss Saifolahi tabled contemporary medical evidence, which for that reason we received under Rule 15(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008. In that light Miss Isherwood requested the opportunity to take instructions which we granted, in the event for 25 minutes. On resumption Miss Isherwood said that it might be appropriate for the Respondent to look at the decision again and so requested an adjournment, as well as a remittal of the appeal to the First-tier Tribunal. Miss Saifolahi opposed the adjournment application because the Sponsor was at a late stage in her pregnancy and the medical condition of her mother was chronic and uncertain. In the exercise of our discretion we declined to grant the adjournment and decided that the appeal could and should proceed that day in the Upper Tribunal.
6. In the light of Miss Isherwood’s candid initial appraisal of the issues we afforded her further time, in the event another 25 minutes, to decide how she wished to present the appeal, to enable us to identify which matters remained in issue and which did not. On resumption we clarified with Miss Isherwood that the pregnancy of the Sponsor and the Appellant’s paternity of the Sponsor’s expected child were accepted, whilst the Sponsor’s care of her mother and the Sponsor’s connections to Bangladesh were not. In that light Miss Saifolahi said that she would be calling the Appellant, the Sponsor and the Sponsor’s brother. It being then 12.55pm, we rose. Throughout the morning the proceedings were interpreted to the Appellant by the court interpreter in the Sylheti dialect of the Bengali language.
7. The substantive hearing commenced at 2.00pm. The Appellant gave evidence on oath through the interpreter in chief, in which he adopted his statement, and cross-examination. After a short break for the benefit of the interpreter the Sponsor, Mrs Nasrin Begum Latif, who is the Appellant’s wife and who had been outside the hearing room during his evidence, gave evidence on oath in English in chief, in which she adopted her statement, in response to one question from the Tribunal and in cross-examination. Her brother, Mr Abdul Latif, who had been outside the hearing room until this point, then gave evidence on oath in English in chief, in which he adopted his statement, cross-examination and response to questions from the Tribunal. The interpreter was present throughout the evidence of Mrs Latif and her brother in case of any difficulty, but was not required.
8. Submissions followed, by Miss Isherwood and then by Miss Saifolahi, which were interpreted to the Appellant. At 4.45pm we reserved our determination. We have taken those oral submissions into account, together with the skeleton argument of the Appellant and the Refusal Letters of 20 September 2011 and 18 December 2012.
9. As stated, Miss Isherwood accepted the evidence of the Sponsor’s pregnancy and of the Appellant’s paternity of the child whom she is expecting. She did not challenge the credibility of any of the witnesses, although she did challenge the interpretation of the evidence about the extent of the care which the Sponsor has been providing for her mother. The Appellant was at points a confused witness, and doubtless with a feeling of vulnerability about his immigration history he attempted to sanitise it and to minimise the potential support of his family in Bangladesh whilst maximising that of his family in the UK. His evidence is not entirely consistent about matters of chronology which we have concluded are of limited import. The evidence of the Appellant, his wife and his wife’s brother is broadly consistent, internally and with that of each other and, as to the matters upon which it is accepted by Miss Isherwood, supported by documentary evidence. We find that the Appellant (with this degree of qualification), his wife and his wife’s brother were witnesses of truth who were doing their best to narrate events as they recalled and understood them. The Appellant’s wife was an impressive witness, who answered challenges to her evidence in a rational and measured way. With the same degree of qualification about the evidence of the Appellant we accept the evidence of all of them. This enables us to summarise the evidence compendiously, which we now do.
10. The Appellant, who was born on 25 February 1983, came from Bangladesh to the UK on 1 November 2000 when he was aged 17. He said (oral evidence, questions 50 to 54 of Mr Lewis’s record (oral 50-54)) that he came through a middleman to visit his relatives, saw that the UK was a nice place, liked it and stayed, not realising until he was here that he was here unlawfully. Thinking whether or not to stay, he decided by 2007 to do so and on 3 July 2007 submitted an application for leave to remain on the basis of his length of residence and private life.
11. The application was refused. Thenceforth the Appellant’s immigration history became complex, with him being listed as an absconder, in September 2011 being detained as an illegal immigrant and in October 2011 being granted bail. Judicial review proceedings were instituted, with permission being granted, and later withdrawn.
12. In March 2011 the Appellant met Nasrin Begum Latif. They entered into an Islamic marriage on 23 October 2011 and a civil marriage on 22 December 2011, the certificates being in evidence together with family photographs and anniversary cards.
13. Mrs Nasrin Begum Latif was brought as a baby from Bangladesh to the UK, where she has spent her whole life. She is a British citizen. She works for Training 4 U Services (UK) Limited teaching basic English to people from Jobcentres who are unable to speak English to help them to find work. There is documentary evidence of her employment. She became aware of the Appellant’s lack of immigration status when he was detained for the first time; as to this we interpose that according to the chronology this was on 8 September 2011. This was not the reason why she married him which, as stated, she did on 23 October 2011.
14. The Sponsor is pregnant, and her due date is 4 September 2013. She has had medical problems with her pregnancy and there have been problems with the movement of the baby, for which she has spent periods in hospital. She attributes these problems to the stress which she is under with her mother. We note that when the baby is born he or she will be a British citizen.
15. In 2001 the Sponsor’s younger sister died. Following this, and in 2001, her mother had a stroke, and her health began to deteriorate significantly. She cannot now speak. She has renal cancer, which is also in her brain. She has been in and out of hospital, where she now is, having been admitted most recently on 18 July 2013. In a letter written by a doctor at the hospital on 20 July 2013 to support the mother’s hope that a brother in Bangladesh will be able to visit her, the doctor wrote that she has renal cancer and brain metastases and is critically unwell. The hospital have told the family that she could pass away at any time.
16. Over the years the mother’s children in the UK have participated in her care. They are the Sponsor; another daughter, who has her own husband and children; a single brother; and a brother Abdul, who lived with his mother for a period and has his own wife and two children.
17. Whilst the Sponsor’s mother was at home, carers came in on a rota basis every day. The Sponsor said that this started three years after her mother had her stroke in 2001, and thus in 2004 (oral 88). The Appellant recalls this being the arrangement from when he married the Sponsor in 2011 (oral 18). The carers are there for fixed periods, not around the clock. They help the Sponsor’s mother to get out of bed, put her in a wheelchair, wash her, clean her and change her nappies if needs be and come back if there is anything else to be done.
18. The Sponsor whilst she was working would go to see her mother in the morning before starting work at 9.00am. She would often go back after work. Sometimes she had to go during the day if the carers phoned, which her employers understood and accepted. She did her mother’s cooking, dressed her, arranged her medication, maintained the contact with the hospital and attended to her mother if she had dirtied herself after the carers had gone. When her mother was most recently admitted to hospital the Sponsor gave up her employment, a few days before she had been due to start her maternity leave. Now she spends the day with her mother in the hospital, from around 10.00am, sometimes until her mother goes to sleep at around 9.00 or 10.00pm and sometimes until her brother comes on from work. She sits with her mother, speaks to her, reads to her and tries to make her happy. The siblings take turns to sit with her. A letter of 21 March 2013 from, it seems, the mother’s general practitioner says that the Sponsor states that she deals with all of her mother’s medical problems and liaises with all health care professionals; she is her mother’s main carer, is the first point of contact in regards to her mother’s care and the health centre have her number on their records.
19. The Appellant said that his mother-in-law was very close to the Sponsor and did not want to deal with anybody else; the Sponsor understood her mother, who cannot speak and can only use sign language like pointing her fingers and making noises (oral 24). The Sponsor’s brother Abdul said that their mother is very fussy; the Sponsor was the closest to her of the siblings due to her circumstances; their mother would not want the Sponsor to leave her sight; the Sponsor did all the cooking and was the only person who made her happy and got her medication; the mother would not let anybody do that apart from the Sponsor; and the majority of the time the Sponsor did everything for her (oral 108-110).
20. Asked about her husband’s support, the Sponsor said that emotionally and physically he was there for her. He was a shoulder to cry on, which kept her going. She and her brothers and sisters were all very emotional. At home the Sponsor is so knackered that her husband does everything for her (oral 72). In evidence are letters of corroboration of the Sponsor’s relationship with the Appellant and care for her mother from various people including the Sponsor’s other brother in the UK (Appellant’s bundle page 46).
21. A significant issue for Miss Isherwood, in her questions to the three witnesses and in her submissions, was the extent of the Sponsor’s care for her mother. From the totality of the evidence we find that the Sponsor is and has been for many years the primary carer for her mother, and has assumed overall responsibility for her medical care.
22. The Appellant has his parents in Bangladesh, together with two sisters and three brothers, and is in contact with them. He said that they were living there on their own and so would not help him and his wife if they had to return. We note that this is an aspect of his evidence which, whilst not tested, we treat with caution. In the UK he has numerous aunts, uncles and cousins and their children; he is very close to all of his relatives in the UK and knows that he can rely on them for support when needs be. We note that this too we treat with caution for the corresponding reason.
23. The Sponsor’s immediate family are all in the UK. In Bangladesh she has uncles and aunts whom she has never met and with whom she is not close. She believes that her father had a house in Bangladesh but does not know what happened to it. Asked if she was in contact with her family in Bangladesh she replied “not really” (oral 80). She regards the UK as her home. She speaks Bengali, with which she has problems on the odd occasion, as well as English, and understands Urdu, and would have language problems in Bangladesh because she has spoken only English since she was very young (oral 75-77).
24. We summarise. The Sponsor has lived her whole life in the UK. All of her immediate family are in the UK, which she regards as her home. She is a British citizen, as will be her child. She has been since 2001 and remains the primary carer for her mother, who is now terminally ill and could pass away at any time. She is in a subsisting and meaningful marriage with her husband, whom she married not because of his lack of immigration status and who is at present an invaluable support to her.
25. The Appellant entered the UK at the age of 17 and remained there, knowing that he was not entitled to do so, for six and a half years before reaching the decision that he would like to stay and submitting an application. Subsequently he was treated as an absconder, detained as an illegal immigrant and brought judicial review proceedings which were ultimately withdrawn on the basis of the Respondent considering his further representations and granting him an in country right of appeal. He married the Sponsor in 2011, and they are imminently expecting their first child.
Determination: the Immigration Rules
26. The application was determined under Appendix FM, dealing with family life, and paragraph 276ADE, dealing with private life, of the Immigration Rules.
27. The Appellant meets most of the requirements of Section S-LTR, suitability - leave to remain - and E-LTRP - eligibility for limited leave to remain as a partner - of Appendix FM. He does not however satisfy paragraph E-LTRP2.2, which requires that “The applicant must not be in the UK in breach of immigration laws (disregarding of any period of overstaying for a period of 28 days or less) unless paragraph EX.1 applies.” Paragraph EX.1 provides so far as applicable that it applies if:
“(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.”
28. On the evidence then available to the Respondent, it is understandable that the Refusal Letter at paragraphs 20 to 22 concluded that Section EX.1 did not apply. The evidence before us is fuller and more contemporary.
29. We find that the Appellant has a genuine and subsisting relationship with the Sponsor. She is a British citizen settled in the UK whose family, career and whole life are and have always been there. There are various obstacles to family life between them continuing outside the UK. The Sponsor is pregnant, and due to deliver on 4 September 2013, just over five weeks hence. So she could not travel to Bangladesh now. Her child will be a British citizen at birth. As a matter of EU law, where a remaining spouse or child is a British citizen and so a citizen of the European Union, it is not possible to require the family as a unit to relocate outside the European Union or for the Respondent to submit that it would be reasonable for them to do so: Sanade and others (British children - Zambrano - Dereci)  UKUT 48, applying Ruiz Zambrano  ECR 1- 0000 8 March 2011.
30. Even if none of those considerations applied, the Sponsor remains the primary carer among her siblings for her terminally ill mother, who could pass away at any time. She cannot reasonably be required to leave the UK at this time.
31. The Appellant has family in Bangladesh who, whatever he says, will on the balance of probabilities help him and his wife and child. His wife speaks Bengali, even with occasional difficulties, and understands Urdu. So at that stage there might not be insurmountable obstacles to family life continuing in Bangladesh. But, given the making of removal directions, the position is to be assessed at the date of the hearing. At that date we find that there are insurmountable obstacles to family life between the Appellant and the Sponsor continuing outside the UK.
32. We accordingly allow the appeal under Appendix FM to the Immigration Rules. We need not therefore consider paragraph 276ADE of the Immigration Rules, which addresses private life.
Determination: Article 8 of the 1950 Convention
33. That would be the end of the matter, but for this issue. As stated, the decision was made under the Immigration Rules. The skeleton argument of the Appellant and the submissions of both parties proceed primarily on that basis, with Article 8 as the alternative submission. However disproportionate post-hearing judicial attention to the text of the Immigration Rules has caused us to question whether this is correct.
34. Appendix FM begins thus:
“This Appendix applies to applications under this route made on or after 9 July 2012 and to applications under Part 8 as set out in the Statement of Changes laid on 13 June 2012 (HC 194), except as otherwise set out in paragraphs A277-A280.”
35. HC 194 states at the foot of page 1:
“However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012.”
36. On the complex chronology of this matter, there are a number candidates for the role of the date of the application. The latest is 8 March 2012, which is referred to in paragraph 1 of the Refusal Letter of 18 December 2012 as the correspondence in which the Appellant provided additional evidence in support of his Article 8 claim. These two dates span the commencement date of Appendix FM which was 9 July 2012, at which date the application had not been decided. So prima facie it fell to be decided in accordance with the immigration rules in force before that date. Since there was no rule specifically in point, this means under Article 8, which was the basis of the application.
37. There is however an exception “as otherwise set out in paragraphs A277-A280”. This invokes the transitional and interaction provisions of Part 8 of the Immigration Rules. To us, these are at first impression impenetrable. We would not have thought it right to reach a decision on their application without affording the parties the opportunity to make representations.
38. If our analysis is correct, and if paragraphs A277-A280 are not in point, the appeal is to be decided not under the Immigration Rules but under Article 8, involving consideration of the Razgar paradigm and a proportionality assessment. We would not otherwise have embarked upon this course, which was not raised at the hearing, without affording the parties the opportunity to make written submissions and to request a reconvening of the hearing for oral submissions, which we would have contemplated. That would inevitably have protracted an appeal with an already lengthy history. However we have ultimately concluded that any legal error, if such it is, is not material because we would reach the same conclusion on an Article 8 proportionality assessment. So neither party would be either advantaged or disadvantaged, except in terms of time and cost, by our taking this course of action. We have therefore decided to determine the appeal on the basis upon which the Respondent decided it and the parties primarily addressed it, which is the Immigration Rules.
39. Without the benefit of argument on the issue, we recognise that we may be wrong. In the normal way we would not be required to proceed to a freestanding Article 8 proportionality assessment: Green (Article 8 - new Rules)  UKUT 254 (IAC). On this occasion, however, we do so, taking into account the alternative submissions of both representatives and the skeleton argument of the Appellant about Article 8.
40. We find, as a mixed question of fact and law, the existence of family life between the Appellant, his wife and their unborn child. Answering the other Razgar questions affirmatively, we address the issue of proportionality.
41. Significant weight is to be attached to the maintenance of effective immigration control, and it is difficult for an appellant without a claim to remain under the Immigration Rules to outweigh its impact by establishing an entitlement to remain under Article 8: LK (Serbia)  EWCA Civ 1554. An even-handed application of the proportionality test is likely in most cases to result in a finding that removal is proportionate: KR (Iraq)  EWCA Civ 514; WB (Pakistan)  EWCA Civ 215.
42. A balanced judgement is required in the light of all of the material facts whether a family member can reasonably be expected to follow an appellant to the country of removal: Chikwamba  UKHL 40; EB (Kosovo)  UKHL 41. As stated, this is not arguable where, as here, the Sponsor and her awaited child are British citizens: Sanade. Whether interference with family rights is justified in the interests of controlling immigration will depend on the facts of the particular case: Mahmood  IAR 229, CA.
43. The Appellant has an extremely poor and opportunistic immigration history. Arriving at the age of 17, he discovered soon enough, if he did not already know, that he had no lawful basis to enter or remain in the UK. It took him six and a half years to reach the decision to apply for leave to remain. Thereafter his application took on a life of its own. He writes at paragraphs 6 and 7 of his statement that his attraction to the Sponsor was genuine, as was hers for him; she too said that she did not marry him to assist his immigration status. His marriage, the awaited child and his mother-in-law’s health situation has transformed what would otherwise have been a forlorn claim.
44. At the same time the Appellant meets the requirements of paragraph EX.1 of the Immigration Rules. As the Refusal Letter says at paragraph 13, this was agreed in Parliament, and represents the level at which as a matter of public policy the Respondent sets the bar. Ironically, perhaps, from the point of view of the Respondent, the Appellant’s negative immigration history is thereby neutralised under Appendix FM.
45. We have discussed the personal circumstances of the Appellant and his wife and the reasons for finding that they represent insurmountable obstacles to their continuing their family life outside the UK. They are correspondingly applicable in an Article 8 proportionality assessment.
46. If it is in law correct to determine the appeal under Article 8 of the 1950 Convention, we conclude that the public interest is satisfied, in the Appellant’s favour, if it is confined to the ambit of paragraph EX.1 of Appendix FM to the Immigration Rules and is significant, in the Respondent’s favour, if it extends to the Appellant’s immigration history. Even if it does, however, we conclude that it is outweighed by the circumstances at the date of the hearing of the Appellant and his wife, whose interests fall for consideration along with his. In that event we allow the appeal on Article 8 human rights grounds.
47. The original determination contained a material error of law, and is set aside.
48. We allow the appeal under the Immigration Rules.
49. In the legal alternative, we allow the appeal on Article 8 human rights grounds.
50. No anonymity direction is made.
Signed Dated: 2013
Deputy Upper Tribunal Judge J M Lewis