(Immigration and Asylum Chamber) Appeal Number: IA/18932/2012
THE IMMIGRATION ACTS
Heard at North Shields
On 12 June 2013
On 15 July 2013
UPPER TRIBUNAL JUDGE DEANS
MR WAJID HUSSAIN
For the Appellant: Mr Z Nasim of Counsel
For the Respondent: Mr J Kingham, Home Office Presenting Officer
DETERMINATION AND REASONS
1) This is an appeal with permission against a decision by Judge of the First-tier Tribunal Manchester dismissing this appeal under Article 8.
2) The appellant was born on 16 March 1985 and is a national of Pakistan. He arrived in the UK in August 2005 with leave for two years as a student. While here he successfully obtained an extension of this leave. In October 2008 he applied for further leave to remain as a Tier 1 (Post-Study Work) Migrant but his application was refused in March 2009. This was on the basis he had submitted false documents relating to the Cambridge College of Learning. An appeal against the refusal was dismissed both by the First-tier Tribunal and by the Upper Tribunal. In January 2010 the appellant applied for a certificate of approval to marry a Portuguese national and the certificate was issued in January 2011. In March 2011 an application was made on behalf of the appellant for discretionary leave to remain based on long residence. It appears that by this time the appellant’s relationship with his Portuguese partner had broken down. It was, however, submitted that he had adapted to the lifestyle in the UK and had severed all his ties with his family in Pakistan because they did not accept his relationship with someone who was not from Pakistan. In April 2011 the appellant was detained because he was an overstayer whose rights of appeal were exhausted. He was subsequently released on temporary admission. Representations were made on his behalf towards the end of 2011 relying on Article 8. In support of this it was stated that the appellant had entered into an Islamic marriage with a British citizen, Nargas Karam.
3) A decision on this claim was made by the respondent in August 2012, which was after the coming into force on 9 July 2012 of paragraph 276ADE and Appendix FM of the Immigration Rules. The respondent pointed out that the appellant did not meet any of the requirements of Appendix FM for recognition of his family or private life in the UK. The application was considered under paragraph 353B but there were insufficient factors to justify allowing the appellant to remain in the UK. A decision to remove the appellant as an overstayer was served on 10 August 2012. It is against this decision which this appeal was brought.
4) Before the First-tier Tribunal both the appellant and Nargas Karam gave evidence. Oral evidence was also given by a brother and a sister of the appellant and by a friend.
5) In the determination the judge accepted that the new provisions of the Immigration Rules applied to the respondent’s decision. The judge had heard argument over whether Nargas Karam should be regarded as the appellant’s partner, spouse or fiancée. The appellant maintained that he intended to register the Islamic marriage at a civil ceremony and the judge concluded that the couple clearly regarded themselves as married rather than as engaged to be married. Although the evidence of the couple was that they planned to marry at a Registry Office as soon as possible, their Islamic marriage had taken place on 23 October 2011 and the only preparation for a civil marriage was an appointment at the Registry Office on 28 August 2012. In the circumstances the judge was satisfied that Nargas Karam should be regarded as the appellant’s partner, rather than as his fiancée.
6) The judge then considered whether the appellant could meet the requirements for leave to remain as a partner in terms of paragraph R-LTRP and paragraph EX.1 of Appendix FM. In addressing this the judge had to decide whether the appellant had a genuine and subsisting relationship with a partner who is a British citizen settled in the UK and there are insurmountable obstacles to family life with that partner continuing outside the UK.
7) In answering this question, the judge noted that, as far as the appellant himself was concerned, he had spent the first 20 years of his life in Pakistan and although he might have difficulties initially in returning there, there was no reason why he would not be able to resettle there and survive economically with the benefit of the experience and qualifications gained in the UK and with the possibility, if necessary, of additional financial support from his family in the UK. The appellant maintained in his oral evidence that he feared his relatives in Pakistan because of his previous relationship with a non-Muslim but he also said that he had a big family spread all over the country. This was at odds with his claim that he had never spoken to the members of his extended family who were still in Pakistan and he did not know their addresses or their relationships to him. Although the appellant claimed that he had been disowned by his family as a result of his relationship with a non-Muslim, this was not part of his grounds in respect of the current appeal. His appeal was supported by the oral and written evidence of several family members, some of whom had attended his Islamic wedding ceremony. The judge was not satisfied that the appellant was still disowned and found there was no insurmountable obstacle to the appellant enjoying family life in Pakistan. Although the appellant had family members and friends in the United Kingdom there would be nothing to prevent him keeping in touch with them by modern means of communication and visits. It was not unknown for his siblings to visit Pakistan.
8) Addressing the position of the appellant’s partner, Nargas Karam, the judge acknowledged that she was born and raised in the UK and there was a question of whether it was reasonable to expect a British citizen to relocate to a different country. Her birth certificate showed that her parents with both born in Pakistan and it was likely that she would have no language difficulty if settling in that country. There was no evidence produced to the contrary. She had maintained her Muslim cultural and religious roots as she had chosen to undertake an Islamic marriage and photographs showed that she had also adopted other Islamic traditions. She was qualified as a nursery nurse but it did not appear that she was employed in that capacity at present and there was no reason why she would not be able to use this qualification and experience in seeking employment in Pakistan. The judge accepted the likelihood that she had family members in the UK but she had chosen to marry the appellant and therefore to live apart from her family. It was claimed that she returned to Luton to spend Eid with her family earlier this year but there would be nothing to prevent her from keeping in touch with her family and friends in the UK by modern communications and visits. The judge concluded that though she would have initial difficulties in settling in Pakistan these would not amount to insurmountable obstacles in the way of her enjoying family life there. Accordingly, in relation to Appendix FM the appellant had not established that he would meet the requirements for seeking to remain in the UK on the basis of family life with a person who was a British citizen. In terms of paragraph 276ADE, the appellant had not lived in the UK continuously for at least 20 years. He was clearly over the age of 18. The only possible heading under which it could be argued that he had an established private life in the UK under the new provisions was that he had no ties (including social, cultural or family) with the country to which he would have to go if he required to leave the UK. The judge had difficulty in accepting that the appellant had severed all ties with Pakistan. It was clear that his siblings had returned there for visits from time to time despite settling in the UK and the appellant had not only chosen to marry a woman with family roots in Pakistan but had also chosen to respect Islamic traditions in marrying her. The appellant’s evidence was that he still had extended family in Pakistan. The evidence relating to his parents was found by the judge to be unsatisfactory. It was stated that the appellant's parents had been in the UK for seven years but there was no evidence from them and no evidence of their status. The witnesses at the hearing could not say what their status was - the only suggestion being that they had come over as visitors.
9) Having found that the appeal would not succeed under paragraph 276ADE and Appendix FM, the judge went on to consider the appeal under Article 8. In this regard he noted that the appellant was an overstayer and that he was found in a previous appeal to have submitted a false document, namely a post-graduate diploma from the Cambridge College of Learning, in support of an application to remain in the UK. He did not have a criminal record. He had produced evidence from family, friends and other contacts which were supportive of his application and the existence of his right to private life in the UK. The judge found that there was nothing to prevent the appellant from keeping in touch with these people by modern communications and visits. The appellant had obtained qualifications in the UK but there was no reason why he could not use these, together with his work experience, for his benefit on his return to Pakistan. He had bought a house in the UK but this was done at a time when his immigration status was precarious and it would be reasonable to expect him to sell the house and to use the proceeds towards re-establishing himself in Pakistan. The judge found it commendable that the appellant had stated that he was willing to work and contribute to the economy of this country but this was not a significant factor militating against his return to Pakistan. The judge noted that according to the appellant’s evidence he had a close relationship with his siblings but the judge did not find that this relationship should be regarded as extending beyond the normal emotional ties between family members so as to amount to family life. The appellant still had other relatives in Pakistan.
10) In relation to Nargas Karam, the judge relied on the findings he had made in relation to Appendix FM. Although she may never have been to Pakistan and there would undoubtedly be initial difficulties in her settling there, her cultural ties to that country would enable her to do so. She entered into an Islamic marriage with the appellant at a time when his status in the UK was precarious and it was difficult for the judge to accept, having considered the evidence she gave under cross-examination, that she was not aware of this fact or that she did not shut her eyes to the obvious. It would be reasonable to expect her to relocate to Pakistan to enjoy family life there with the appellant. The appellant’s removal would not constitute a disproportionate breach under Article 8.
11) In the application for permission to appeal it was argued that the credibility findings made by the judge were not sustainable and that the judge had not taken into account all of the evidence, both oral and documentary. It was submitted that the judge failed to consider the position of Nargas Karam, who as a British citizen could not relocate to Pakistan as she was brought up in the UK and was a professional nursery nurse. It was further contended that it was an error of law for the judge to have considered the new Immigration Rules, which came into force on 9 July 2012, as the application was made prior to this. The judge accepted that the appellant had established a private life in the UK. The application would have succeeded under the old Immigration Rules. The judge did not give proper reasons under Article 8 as the appellant had been in the UK for over seven years.
12) Permission to appeal was granted on the basis that all the grounds were arguable but, in particular, it was arguable that the judge erred in finding that it was reasonable to expect the appellant’s British partner to relocate to Pakistan in the light of the decision in Sanade  UKUT 48.
13) A Rule 24 notice dated 18 January 2013 was lodged on behalf of the respondent. This stated that the appeal was opposed and that the respondent would submit that the Judge of the First-tier Tribunal directed himself appropriately. The judge had given good reasons for finding that the appellant could not succeed under the new Immigration Rules. These rules applied at the date of decision. It was not correct to rely on Sanade as authority for the proposition that it was not reasonable for the appellant’s partner to relocate with him to Pakistan. The position of the Secretary of State in Sanade, if it was significant, was the policy position at the date of the hearing. It was not established either in fact or law that it would be unreasonable for any British citizen to relocate with a non-national partner to their country of origin. Further, Sanade predated the changes in the Immigration Rules. The remaining grounds of the application amounted to a series of disagreements with findings which the judge was reasonably entitled to make those findings.
14) At the hearing I was addressed on behalf of the appellant by Mr Nasim, who informed me that he had been instructed only the day before. He relied on the application for permission to appeal and also the grant of permission itself. It was accepted that the appellant could not succeed under the new Immigration Rules in Appendix FM and the appeal should therefore be considered under Article 8. There the focus should be on the position of the appellant’s partner, Nargas Karam. The finding by the judge that she would face no language difficulty in Pakistan was pure speculation. She had no links with Pakistan. The issue was the reasonableness of expecting her to relocate. She would have no employment there. Although the judge referred to her as following Islamic traditions, her entry into an Islamic marriage was a matter of faith, not of culture. It was erroneous to conclude from this that she could adapt to the culture in Pakistan. Although the judge noted that the marriage had been entered into when the appellant’s position was precarious, this was only one factor to be taken into account and it should not be given undue weight. It should not be assumed that because the appellant’s partner married him when he had no status it was reasonable to expect her to relocate. This was her home and she was not asked about her ability to live with the appellant in Pakistan.
15) At this point Mr Kingham interjected to say that, according to paragraphs 35 and 36 of the determination, Nargas Karam was asked about living in Pakistan when giving oral evidence at the hearing.
16) Mr Nasim continued that nevertheless the judge was not entitled to reach the conclusion on the evidence that it would be reasonable for the partner to relocate. No mention was made by the judge of the case of Beoku-Betts  UKHL 39 on the position of a settled partner and the partner’s rights. The appellant had a right to be here as a British citizen and this was an important issue under Article 8. Their family life would be disrupted and this disruption would be disproportionate.
17) In this regard Mr Nasim pointed out that the judge had based his findings in relation to the reasonableness of the partner relocating on the same findings as he made in relation to the insurmountable obstacles test under Appendix FM. In addition, reliance was placed on the case of Sanade.
18) At this point the question the question was raised of what reliance could be placed on Sanade given the changes in the law and the rules which had occurred. Mr Kingham responded that he intended to rely on the decision of the Court of Appeal in DH (Jamaica)  EWCA Civ 1736.
19) Mr Nasim resumed his submission that the question was whether it was reasonable to expect the couple to relocate to Pakistan. In relation to this the judge had relied on language issues and cultural ties. The test under Appendix FM was different from the test under Article 8. In addition the judge did not consider the case of Chikwamba  UKHL 40 on the possibility of the appellant returning to Pakistan to apply for entry clearance. Mr Nasim submitted that it would be disproportionate to expect the appellant to return for this purpose.
20) In conclusion Mr Nasim submitted that there were three issues where an error of law had arisen. The first was that the judge had misapprehended the evidence, particularly in relation to the language issue. The judge applied the same test of insurmountable obstacles under Appendix FM to the issue of reasonableness. The judge did not consider the case of Chikwamba and the possibility of the appellant returning to Pakistan in order to apply for entry clearance.
21) It was pointed out that Mr Nasim had gone beyond the grounds in the application for permission to appeal. Mr Kingham indicated he was nevertheless willing to attempt to respond the arguments made. He submitted first that no-one would require Nargas Karam to leave the UK or to leave the European Union. It was a matter for her as to whether she would accompany the appellant. It was reasonable to remove the appellant given his history. The appellant could apply for entry clearance if he met the relevant rules. This was not a case in which Chikwamba would render it unreasonable for him to return to Pakistan to apply for entry clearance.
22) Mr Kingham submitted that it was appropriate for the judge to apply the test of insurmountable obstacles in the Immigration Rules. The new Immigration Rules amounted to comprehensive consideration of Article 8.
23) Mr Kingham further submitted that the judge was entitled to consider whether it was reasonable for Nargas Karam to accompany the appellant to Pakistan. She could accompany him for the purpose of his application for entry clearance. Her rights had been considered and it was not necessary to make any specific reference to Beoku-Betts, which was not cited before the First-tier Tribunal. The judge was entitled to use the same findings of fact in relation to insurmountable obstacles and reasonableness, even if it was not accepted that insurmountable obstacles was the correct test. There was no error of law in the judge’s decision.
24) In response Mr Nasim sought to introduce additional case law. He referred to the case of SB (Bangladesh)  EWCA Civ 28 as authority for the proposition that in considering the reasonableness of requiring an appellant to make an application for entry clearance the Tribunal should not consider the prospects of success. He further submitted that the Tribunal must look at the circumstances as they are, in accordance with Lamichhane  EWCA Civ 260.
25) The parties were asked what further procedure they would expect were an error of law to be found. Mr Nasim submitted that the case came down to proportionality and a new decision should be made by me if there was sufficient evidence. There were no specific adverse credibility findings by the judge and the evidence appeared to have been accepted by the respondent.
26) I reserved my determination.
27) Despite Mr Nasim’s perseverance, there was very little in the application for permission to appeal or in the submission on behalf of the appellant to indicate an error of law in the judge’s decision. Mr Nasim submitted that the judge’s finding at paragraph 60 of the determination that it was likely that Nargas Karam would have no language difficulty in Pakistan because both her parents were born there was speculation and a misapprehension of the evidence. Certainly it is not recorded that Nargas Karam was asked about language at the hearing. The judge may be criticised for going so far as to say that it was likely Nargas Karam would have no language difficulty, but the judge might have had some justification for suggesting that it was likely that she would have less difficulty with language than someone whose parents did not originate from Pakistan. This is, however, a factor of minor importance. The judge gave more powerful reasons for finding that the appellant’s removal would not be disproportionate. As Mr Kingham pointed out, it was a matter for Nargas Karam as to whether she decided to accompany the appellant or not. She was asked about this when she gave her evidence, as recorded at paragraphs 35 and 36 of the determination. She stated that she had nothing in Pakistan as all her family were in the UK and it would be really hard for her to adjust to the lifestyle there. She also said she would not go as everything she had was in the UK, including the appellant’s family. In cross-examination she said that her parents had come to the UK about 40 years previously. She had not really discussed with the appellant whether she would consider moving to Pakistan. When asked what her understanding of the appellant’s status was when she decided to marry him, she replied that she had not really asked much as she did not think there would be an issue. He did not volunteer information and she did not ask. When she was asked when she had first discovered that he was an overstayer, she replied that she could not remember but that it was a long time ago. He had explained the position to her when he had asked for paperwork from her and she had thought this was part of a normal procedure.
28) On the basis of this evidence the judge was entitled to find the marriage was entered into when the appellant’s status was precarious and Nargas Karam ought to have been aware of this, even if she was not specifically informed.
29) Mr Nasim sought to draw a distinction between Nargas Karam’s adherence to the Islamic faith and the culture of Islam as observed in Pakistan. While on the face of it, this argument might appear to have some weight, it must be tempered by the observation that Nargas Karam has chosen a partner from Pakistan and that both her parents were from Pakistan. It can hardly be contended that Islamic culture, as observed in Pakistan, would be entirely strange to her. I do not consider that the judge misapprehended the evidence in relation to this or did not give adequate reasons for his finding.
30) Mr Nasim submitted that the judge erred in treating the test of insurmountable obstacles and the test of reasonableness as if they were the same. While Mr Kingham did not accept that there was a distinction between these 2 tests, he nevertheless submitted that even if there was, the judge was entitled to rely on the same facts in relation to both tests.
31) The judge addressed this at paragraph 55 of his determination where he wrote:
“It is therefore necessary to consider whether the appellant has a genuine and subsisting relationship with a partner who is in the United Kingdom and is a British citizen settled in the United Kingdom and there are insurmountable obstacles to family life with that partner continuing outside the United Kingdom. Although this will be analysed further by me when considering the question of whether in terms of Article 8 of the Human Rights Convention it is reasonable to expect the appellant and Nargas Karam to enjoy their family life together in Pakistan, I make the following findings in respect of this sub-paragraph of Appendix FM.”
32) It may be observed from this passage that the judge did not treat the test of insurmountable obstacles as being the same as the test of reasonableness, although as Mr Kingham rightly submitted, there was nothing to stop the judge from relying on the same findings of fact in respect of each test. The judge first made findings which satisfied him that there were no insurmountable obstacles to family life being carried on in Pakistan. He was entitled on the basis of the same findings to conclude that it was not unreasonable to expect the appellant’s partner to accompany him to Pakistan to continue family life there. Although the test of reasonableness would seem at first sight to be an easier test to satisfy than the test of insurmountable obstacles, the judge’s findings were not so finely balanced in this matter as to lead to the conclusion that while the test of insurmountable obstacles might not be satisfied, the test of reasonableness would be. The judge made no error of law in relation to the test of reasonableness.
33) The third main point relied upon by Mr Nasim was whether the judge should have considered the possibility of the appellant returning to Pakistan to apply for entry clearance. It was recorded at paragraph 49 of the determination that this was mentioned in the submissions made on behalf of the appellant. It was submitted that it was unreasonable to expect the appellant to return to Pakistan with his fiancée from where he could make a further application. The judge clearly rejected this argument. If it was not unreasonable for the appellant and his partner to carry on family life in Pakistan, by implication it would not be unreasonable for them to return there for the purpose of applying for entry clearance for the appellant. There is no error of law arising from this issue.
34) Finally, Mr Kingham submitted that there was no issue arising from the case of Sanade. No-one was requiring Nargas Karam to leave the UK or to leave the European Union. This was a matter of choice for her.
35) This submission accords with the view expressed by the Upper Tribunal in the case of Izuazu  UKUT 45, where it was stated at paragraph 84:
“The facts are materially different from those of the case of the successful appellant in Sanade where it was not reasonable to expect the spouse to leave the EU as in that case the claimant had been granted indefinite leave to remain before committing the offence and requiring the mother to leave would also require the minor children to be compelled to do so. The UKBA continues to accept that EU law prevents the state requiring an EU law citizen from leaving the United Kingdom, although contends with good reason, that this is to be distinguished from a case where an independent adult can choose between continued residence in the United Kingdom or continued cohabitation abroad.”
36) The present appeal is precisely the type of case envisaged in Izuazu where an adult can chose between continued residence in the UK or continued cohabitation abroad.
37) There is one further point which arose in the hearing which I should briefly address. The parties referred in their submissions to the case of Chikwamba. The issue in this appeal, however, on which the judge found against the appellant, was not whether it was reasonable to expect the appellant to return to Pakistan only for the purpose of applying for entry clearance but whether it was reasonable to expect family life between the appellant and his partner to be carried on in Pakistan. Where it has been found that it would not be unreasonable for family life to continue in another country, the issues arising from Chikwamba need not be considered further.
38) I have considered the other arguments in the application for permission to appeal or made by Mr Nasim in his submission but they do not raise any issues of substance and do not establish any error of law in the judge’s decision. The judge properly considered the appeal under Article 8. The judge made appropriate findings based on the evidence and gave adequate reasons for his decision.
39) The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
40) I do not set aside the decision.
41) The First-tier Tribunal did not make an order pursuant to Rule 45(4)(i) of the Asylum & Immigration Tribunal (Procedure) Rules 2005.
Judge of the Upper Tribunal