(Immigration and Asylum Chamber) Appeal Number: ia/02918/2013
THE IMMIGRATION ACTS
Heard at Field House
On 11 October 2013
On 8 November 2013
UPPER TRIBUNAL JUDGE LATTER
MUHAMMAD NADEEM QURESHI
For the Appellant: Ms E King instructed by Burney Legal, Solicitors
For the Respondent: Mr P Duffy, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is an appeal by the appellant against a determination of the First-tier Tribunal issued on 3 July 2013 dismissing his appeal against the respondent’s decision made on 8 January 2013 refusing him further leave to remain on human rights grounds.
2. The background to this appeal can briefly be summarised as follows. The appellant is a citizen of Pakistan born on 2 January 1975. He first entered the UK on 31 January 2006 with a student visa and was subsequently granted extensions until 31 July 2009. In November 2008 the appellant and his future wife, the sponsor, made contact with each other through a marriage website and they became engaged in August 2009. They went through an Islamic ceremony of marriage on 18 October 2009 and on 14 July 2010 they were married in a Registry office.
3. On 27 July 2009 the appellant made an application for leave to remain but this was refused on 22 October 2009 because his college had closed. He appealed against this decision but withdrew his appeal on 14 January 2010. On 4 August 2010 he made further submissions to the respondent. These were accepted as an application for leave to remain as a spouse but were refused on 17 September 2010. Further representations were made and as the respondent took no action an application was lodged for judicial review on 24 July 2012. The matter was settled by a consent order on 30 October 2012, the respondent agreeing to make a decision within three months.
4. The application was considered under the new Immigration Rules and the decision was made on 8 January 2013 refusing the appellant further leave and deciding to remove him. The respondent found that the appellant could not meet the requirements of para 276ADE and was not satisfied that there were exceptional circumstances sufficiently compelling to justify allowing him to remain in the UK.
The Hearing before the First-tier Tribunal
5. The appellant appealed to the First-tier Tribunal. The judge heard evidence from both the appellant, the sponsor and his sister-in-law. There was medical evidence about his wife’s condition and her current medication and treatment.
6. So far as the sponsor’s immigration history is concerned, the judge noted that she came to the UK in 2001/2002. Her mother remains living in Pakistan. She married after coming to the UK but it was not happy and broke down after two or three years. She has settled in the UK and has brothers and sisters here. She claimed not to have any family living in Pakistan which she last visited after her mother’s death in 2009.
7. The judge accepted that there was a genuine relationship between the appellant and the sponsor. She said that it had begun as something of a business arrangement but she was satisfied that they had grown fond of one another and that the relationship was genuine and subsisting . The marriage had taken place at a time when the appellant’s immigration situation was precarious and they went through the Islamic ceremony of marriage when the appellant had an application for further leave to remain as a student pending. That application was refused but they went on to marry in a civil ceremony in July 2010. It was accepted on the appellant’s behalf that the appeal could not succeed under the Immigration Rules and that the appellant relied on article 8.
8. The judge accepted that the sponsor would not leave the UK if the appellant was removed. She found that her current medical condition was stable and although she had sought to persuade the judge that without the appellant’s support her medical condition would not be well-controlled and that it would be dangerous for her to be alone in case she suffered a fit, the judge was not satisfied on the evidence before her that that was the case. She found that the sponsor’s epilepsy was currently well-controlled and could be even better controlled in the appellant’s absence because she would not be trying to conceive.
9. The judge said that the real issue was whether the appellant and the sponsor should be allowed to circumvent the requirements of the Immigration Rules that are applied to everyone seeking spousal entry or leave to remain because of the amount of time the appellant had spent in the UK, the time the couple have been together, their dependency upon each other and the difficulties arising from the sponsor’s medical problems .
10. The judge accepted that article 8 was engaged both in respect of family and private life for both the appellant and his wife. However, they had entered into a relationship when the appellant’s immigration status was precarious. She accepted that the sponsor’s emotional dependence on the appellant was heavy but she believed that the account of her practical dependence upon the appellant had been exaggerated. She commented that the appellant and sponsor had shown a blatant and knowing disregard for the immigration laws of the UK . She accepted if the appellant were to return to Pakistan, there was a real risk that the marriage would fail. The judge said in  that the decision did not require the sponsor to leave the UK and that her private life was established before the appellant met her and she did not accept that the decision engaged her article 8 private life rights. The judge was not satisfied that the appellant had severed his social or cultural ties to Pakistan where his family still lived and she commented that the appellant should not be exempt from the controls imposed on all of those seeking entry clearance as a spouse.
11. The judge summarised her findings as follows:
“43. Despite the impact upon the family unit in this case of the appellant’s return to Pakistan, I have come to the conclusion, albeit reluctantly, that this decision is a proportionate one. The appellant and the sponsor were both adults when they chose to start a relationship and later marry. I am satisfied that it was apparent to both of them at all times that the appellant could not seek to remain in the United Kingdom under the rules but would have to rely on the discretion of the Secretary of State and/or article 8 of the Human Rights Convention. Nevertheless they sought to cement their relationship and they have been trying for a family.
44. The appellant has made it very clear that she will not return to Pakistan with the appellant for any length of time. That is a matter of choice for her. Whilst I accept that the appellant will be emotionally upset if he cannot continue his family life with the sponsor, that is the wholly predictable result from the decisions made by him and his wife in the past. I am not satisfied the sponsor is reliant upon the appellant as her carer.
45. On the evidence as a whole, I am satisfied that this is a proportionate decision involving a proper balancing of the competing public interest in maintaining immigration controls in a democratic society with the appellant’s and the sponsor’s private and family life.”
The Grounds and Submissions
12. The grounds set out a lengthy challenge to the judge’s assessment of proportionality under article 8. Permission to appeal was refused by the First-tier Tribunal on the basis that it was not arguable that the judge had erred in carrying out the balancing exercise. The application was renewed to the Upper Tribunal and permission to appeal was granted for the following reasons:
“…2. It is established that the decision complained of will result in the break up of a subsisting marriage. This is a very serious consequence and cannot be justified easily.
3. Arguably the First-tier Tribunal judge gave two reasons to support this conclusion. They are that the appellant would not earn enough money to satisfy the rules regarding maintenance that it was particularly important to remove him because of his cynical disregard for immigration control. However, it is arguable that no proper reason was given for rejecting the evidence that a relative of the appellant’s wife would find him a job and that it was wrong to impugn the appellant with bad motives because he married, with permission, a British citizen. If, as the judge says, the appellant needed to and did show an intention to leave the United Kingdom in order to enter the United Kingdom as a student, then it is arguable that the judge should not have concluded for the reasons given that the appellant never had such an intention. People can change their minds and a desire to remain in the United Kingdom is not inconsistent with an intention to obey the Immigration Rules.
4. The appellant must not assume that the Upper Tribunal will find any fault but, as explained above, I am satisfied that the grounds are arguable.”
13. Ms King crystallised the grounds into the following submissions. In accordance with Beoku-Betts v Secretary of State  UKHL 39, the article 8 rights of both the appellant and his wife must be respected and that family life entailed not only the consideration of the circumstances as they are now but the parties’ hopes and intentions for the future: R (Fawad Ahmadi) v Secretary of State  EWCA Civ 1721.
14. Ms King referred to and relied on the judgment in MM and Others v Secretary of State  EWHC 1900 which considered the implications of article 8 on the new Immigration Rules coming into force in July 2012. Blake J considered that a combination of the financial requirements would be disproportionate.
15. She submitted that the judge erred in her assessment of proportionality as she failed to take into account the factors identified by in MM in particular by failing to consider the sponsor’s status as a British citizen, the loss of an opportunity to start a family life and when saying that the sponsor’s decision not to go to Pakistan with her husband was a matter of choice she failed to acknowledge that the loss of access to NHS medical treatment may render such choice unreasonable. She submitted that whereas in MM, Blake J recognised that exclusion might be a legitimate and proportionate restriction where a spouse had remained in breach of immigration control, this applied when the couple married after the reason in favour of the restriction had already arisen i.e. after the spouse had become an overstayer.
16. After the appellant withdrew his appeal on 14 January 2010 he promptly applied to regularise his status and that application remained undecided by the respondent until judicial review proceedings compelled her to make a decision. She relied on R (Zhang) v Secretary of State  EWHC 891 (Admin) to support her argument that where there was a genuine family relationship, it would only be in rare cases proportionate to require the appellant to leave to apply for entry from abroad. So far as the financial requirements of the rules were concerned, the sponsor was able to work for only a limited number of hours a week whereas the appellant was young and fit and able to obtain full employment. There was evidence that the appellant had a job offer from his wife’s brother but the judge had wrongly rejected that evidence.
17. Mr Duffy submitted that the judge’s findings and conclusions had been properly open to her for the reasons she gave. He accepted that the separate discussion of private life in  was not entirely clear but when the determination was read as a whole, the judge clearly considered her family life and the effect removing the appellant would have on her. It had been open to the judge to find at  that the offer of employment made by the appellant’s brother-in-law was not genuine.
Consideration of whether there is an Error of Law
18. The issue for me at this stage of the appeal is to consider whether the First-tier Tribunal judge erred in law such that her decision should be set aside. In MF (Nigeria) v Secretary of State  EWCA Civ 1192 the Court of Appeal held that the new rules do provide a complete code for the assessment of an article 8 appeal but that in considering whether there are exceptional circumstances where an appellant is otherwise unable to meet the requirements of the rules the assessment must be carried out compatibly with Strasbourg jurisprudence. The Court held that the use of the phrase “exceptional circumstances” in the rules did not indicate that the respondent had intended to re-introduce an exceptionality test as opposed to making it clear that it was only in exceptional cases that removal of a non-national family member will constitute a violation of article 8.
19. These comments very much echo the guidance given by Lord Bingham in Razgar  UKHL 24 and repeated in Huang  UKHL 11 that the number of claimants not covered by the rules and supplementary directions but otherwise entitled to succeed under article 8 would be a very small minority. Each case has to be examined on its own facts to determine how the balance should be struck.
20. In the present case the judge accepted that the marriage was genuine but took into account that it was entered into when the appellant’s immigration status was precarious. He had withdrawn his appeal on 14 January 2010 for further leave to remain as a student and had subsequently gone through a civil marriage ceremony. Despite the delay by the respondent in making a decision on the further submissions the appellant’s status remained precarious. The judge was entitled to take this factor into account as relevant to the issue of proportionality.
21. It is of even greater relevance that the appellant could not meet the requirements of the rules. The judge did not have the opportunity of considering MM as it was issued two days after her decision was promulgated. However, I am not satisfied that even that decision had been available to her that it would have altered her assessment of proportionality. In MM Blake J identified the five factors which taken together would make the refusal of leave to remain contrary to article 8: the minimum income level to be provided by the sponsor was above the £13,400 level identified by the MAC as the lowest maintenance threshold under the benefits and net fiscal approach; the requirement of £16,000 before savings could be said to contribute to an income shortfall; the use of a 30 month period for the forward income projection as opposed to a twelve month period, the disregard of credible and reliable evidence of the undertakings of third party support and the disregard of a spouse’s own earning capacity during the 30 month period for initial entry.
22. The sponsor’s current income for employment of £5,600/£5,700 a month fell well short of the amount required. The appellant relied on the job offer from his brother-in-law but that evidence was rejected by the judge. This was challenged by Ms King but the judge had to determine that matter on the evidence available to her. She only heard evidence from the appellant’s sister-in-law and it was supported by letters the latest dated 20 July 2010. The judge was entitled to comment that she did not find it credible that the position would be open some three years later given the current employment situation. Therefore, even if the judge had taken into account the factors identified by Blake J in MM, she would not have come to a different decision.
23. She considered the sponsor’s medical condition at some length in her determination and was entitled to find that she was more than capable of controlling her own medication. She was entitled to take into account the fact that the rules sought to provide that every family living in the UK enjoyed a minimum standard of living and was able to maintain itself without recourse to public funds . There was a delay in the respondent’s decision making process but not such as to engage any of the factors identified in EB (Kosovo)  UKHL 41. Reliance was placed on Zhang but that was a decision considering the implications of Chikwamba  UKHL 40 in the context of the provisions of para 319C (h) (i) of the rules requiring a claimant to leave the UK before she could apply to remain as the family member of a points-based system migrant. It was therefore dealing with a procedural not a substantial requirement such as the need to meet the financial requirements of the rules.
24. I am not satisfied that the judge erred in law in her assessment of proportionality. It was for her to balance the public interest in the general administrative desirability of applying known rules between one applicant and another and so maintaining a fair system of immigration control with the interference to the private and personal family life of the appellant and the sponsor. The grounds and submissions do not satisfy me that the judge erred in law. She reached a decision properly open to her for the reasons she gave and in these circumstances this appeal must be dismissed.
25. The First-tier Tribunal did not err in law and accordingly the decision stands.
Signed Dated: 6 November 2013
Upper Tribunal Judge Latter