(Immigration and Asylum Chamber) Appeal Number: HU/01336/2019
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 18 June 2019
On 26 June 2019
DEPUTY UPPER TRIBUNAL JUDGE A M BLACK
(ANONYMITY DIRECTION MADE)
SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr S Sher, counsel
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant is a citizen of Pakistan born on 1 January 1990. He appealed the decision of the respondent on 4 January 2019 to refuse his application for leave to remain in the UK on human rights grounds. His appeal was dismissed by Judge of the First-tier Tribunal N Lodge ("the FTTJ") in a decision promulgated on 11 April 2019.
2. Permission to appeal to this tribunal was granted by First-tier Tribunal Judge Mark Davies in the following terms:
2. Its [sic] arguable that the Judge did not address himself to the factors identified by Lord Bingham in the case of Razgar. He should have asked himself the questions raised by his Lordship in that case. It is not evident from the decision that he did so.
3. The grounds and the decision do disclose an arguable error of law."
3. Mr Sher, for the appellant, submitted, in summary, that the FTTJ had given little consideration to the Article 8 issue of proportionality: the FTTJ ought to have adopted a structured approach, as required by Razgar  UKHL 27. Had that been done, the legal principles, set out in the Article 8 jurisprudence, could have been identified. There was, for example, no reference to consideration of the rights of the family pursuant to Beoku-Betts v SSHD  UKHL 38. There was, he submitted, insufficient analysis especially as regards the impact of the appellant's removal on the rest of the family; his wife had healthcare concerns, as documented.
4. There was, Mr Sher submitted, no discussion as to whether the financial criteria in the Immigration Rules were met; there ought to have been, one way or the other. He submitted that, pursuant to Chikwamba v SSHD  UKHL 40, where the only issue was the financial criteria, there was little sense in expecting the appellant to return to seek entry clearance when that application would be granted anyway. Mr Sher submitted that the only other issue of relevance was the appellant's lack of immigration status. He referred to R (Agyarko) v SSHD  UKSC 11 at  to submit that, where the applicant was residing unlawfully, if he were otherwise certain to be granted leave to enter from outside the UK, there "might be no public interest in his removal". This had not been discussed in the FTTJ's decision. Mr Sher submitted that, at the time of hearing, the appellant's wife had been employed as a teaching assistant; there was also, before the FTTJ, evidence of savings. These were matters which ought to have been considered "one way or the other".
5. Mr Sher accepted there was some reference in the decision to the impact upon the rest of the family but this was insufficient, especially if the appellant's wife were to accompany him to Pakistan. This was an extended family: the appellant's wife's mother was the primary carer for the appellant's sister-in-law who was severely disabled. The appellant and his wife helped with day-to-day care. The appellant's wife was the secondary carer. If the appellant's wife had to accompany the appellant to Pakistan, a greater burden would be placed on the appellant's mother-in-law who had her own health issues. These were matters which had not been given sufficient "consideration and investigation".
6. As regards the issue of Section EX.1 in Appendix FM, and whether there were insurmountable obstacles to family life continuing outside the UK, Mr Sher submitted the appellant's wife was British and had resided in the UK for many years. She would not be able to overcome easily the adjustment to life in Pakistan. She had a private and family life in the UK, her immediate family was here (her mother, siblings) and she was in employment here. Greater anxious scrutiny should have been given to these factors in deciding whether there were insurmountable obstacles.
7. For the respondent, Mr Tarlow relied on the respondent's Rule 24 reply to the effect that the challenge was a mere disagreement with valid and reasoned findings. The FTTJ had correctly considered the appeal by identifying whether the appellant met the Immigration Rules and finding he had established a genuine and subsisting relationship. The FTTJ then considered whether there were insurmountable obstacles to that relationship continuing in Pakistan, as required by EX.1(b). Detailed reasons were given for the FTTJ's rational conclusion that this test was not met. The FTTJ took into account all relevant factors and arguments raised. The FTTJ then went on to consider the appeal outside the Rules, namely whether there were exceptional circumstances rendering removal disproportionate. This approach was correct in precarious family life cases, having been approved in Agyarko. The FTTJ had made proper reference to s117B of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). It was submitted that explicit reference to the step by step approach in Razgar was unnecessary and, in any event, immaterial.
8. The FTTJ has set out the evidence before him. He indicated to the appellant, at the hearing, that he would find the appellant and his wife were in a genuine relationship pursuant to E-LTR.1.7. He repeated that in his decision, giving his reasons for that finding. That decision is not under challenge by the respondent albeit I note the appellant and sponsor engaged in an Islamic marriage ceremony before the appellant's decree absolute had been issued: the marriage ceremony was on 20 May 2017 whereas the decree absolute was issued on 5 January 2018.
9. Before the FTTJ, the appellant's counsel identified that the only issue in dispute under the Immigration Rules was whether the appellant had demonstrated he met the requirements of Section EX.1(b). Section EX.1 of Appendix FM applies if...
"(a) ... [not applicable] ... or
(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.
EX.2. For the purposes of paragraph EX.1.(b) "insurmountable obstacles" means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner."
10. The definition at EX.2 is important. It refers to difficulties which would be faced by the applicant or their partner in continuing their family life outside the UK and which would, inter alia, entail very serious hardship for them. There is no reference in this definition to the impact on others. Thus the challenge on the basis that the FTTJ failed to take into account, when considering EX.1(b), the impact on others of the appellant and his wife relocating to Pakistan, is unsustainable.
11. As regards EX.1(b), the FTTJ considers the appellant's wife's health issues at . He notes her health problems "have not precluded her from working, apparently full time. She is a teaching assistant and has been since July 2018... Although it is said in her solicitors' letter ... that she passionately wants to become a teacher I have a number of letters indicating that she has been offered a place to study law at universities within commuting distance of her home address." Thus the FTTJ has taken into account the appellant's wife's medical condition and future plans. He addresses the claim that medical treatment may not be available in Pakistan for the appellant's wife's conditions by stating he has "not been presented with any reliable evidence to suggest that is the case. I appreciate that medical treatment in Pakistan is not free but again it has not been suggested to me that the sponsor will not be able to find the money to pay for medical treatment. The appellant is well qualified and I cannot see that he would not be in a position to obtain decent employment which will enable his wife to continue to have treatment for her medical problems."
12. The FTTJ notes the appellant lived in Pakistan up to the age of twenty and has family there. He found the appellant has not lost his cultural and linguistic ties to Pakistan. He found the appellant to be well educated and, with his qualifications, would have little problem finding employment. He noted the appellant's wife, the sponsor, was of Pakistan extraction. He took into account her evidence that she would not be able to adapt to Pakistan, the culture of which was alien to her. The FTTJ was unable to find that would be the case because it had not been suggested to him that she did not speak the language; in any event, even if that were the case, she would have the support of her husband and his family to integrate. There is no submission before me that that finding is based on a misinterpretation of the evidence before the FTTJ.
13. The FTTJ refers at  to there being no insurmountable obstacles to "family life continuing in Pakistan". It can be inferred, since he then goes on to find that the appellant does not meet EX.1(b), that the FTTJ is referring here to the appellant's family life with his wife since that is the limit of Section EX.1(b), and not to a wider family life within the extended family. That finding is sustainable and based on the evidence before the FTTJ. It is unassailable.
14. I turn to the FTTJ's findings outside the Rules, pursuant to the Article 8 jurisprudence.
15. In assessing the decision I have taken account of the guidance of the Court of Appeal. Burnett LJ in EA v SSHD  EWCA Civ 10 at paragraph 27 made the following observations:
"Decisions of tribunals should not become formulaic and rarely benefit from copious citation of authority. Arguments that reduce to the proposition that the F-tT has failed to mention dicta from a series of cases in the Court of Appeal or elsewhere will rarely prosper. Similarly, as Lord Hoffmann said in Piglowska v Piglowski  1 WLR 1360, 1372, "reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account". He added that an "appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself". Moreover, some principles are so firmly embedded in judicial thinking that they do not need to be recited. For example, it would be surprising to see in every civil judgment a paragraph dealing with the burden and standard of proof; or in every running down action a treatise, however short, on the law of negligence. That said, the reader of any judicial decision must be reassured from its content that the court or tribunal has applied the correct legal test to any question it is deciding."
16. The FTTJ did not make an explicit finding as to whether family life existed between the appellant, his wife and her mother and/or sibling/s. However, irrespective of the absence of such a finding, the FTTJ considered the evidence of inter-relationships within the family, particularly in the care of the appellant's disabled sister-in-law at  - . Having set out the evidence on the issue he identifies its deficiencies: there was no medical evidence to support the appellant's claim that his sister-in-law "would be impacted by his and his wife not being part of her life"; the care plan spoke of all the family helping to look after the appellant's sister-in-law at home, that she was living with her mother, two elder sisters and younger brother; and there was no up to date evidence than a report by Kirklees Council (the family's former home area) dated 17 January 20917. The FTTJ noted the family could not all be living together because three different addresses had been provided in the recent past; he found it unlikely the entire family had moved from one address to anther with a severely disabled child over the last two years. He noted the family all appeared to be living in a rented property of which the appellant and his wife were the tenancy holders.
17. The FTTJ concluded that, irrespective of the position over the previous two years, he was unable to accept that the appellant's absence and that of his wife would lead to a significant deterioration in the appellant's sister-in-law's condition. This is a finding of fact which is sustainable on the evidence, given the deficiencies the FTTJ had identified. The FTTJ also noted that he had not been provided with medical evidence to corroborate the claim that the appellant's mother-in-law suffered from high blood pressure, arthritis and migraines and "often feels unwell". He noted, in any event, "it is not suggested that she cannot continue to be the primary carer for her daughter...".
18. These are findings which are consistent with and supportive of the FTTJ's findings at  to the effect that there were no exceptional circumstances in this case.
19. While the FTTJ does not make reference to the guidance in Razgar, by inference he applies it in that he has addressed the issue of proportionality on the basis of the appellant's claim, irrespective of whether it was grounded in the evidence, that he had a family life with his wife, his mother-in-law and his disabled sister-in-law. He identified the public interest by reference to s117B and the factors therein. The FTTJ erred in one respect in that he found "the appellant has entered into a relationship with his sponsor, married her, in the full knowledge that his immigration status is precarious and that he has no leave to remain". As a matter of fact, the appellant and sponsor established their relationship as a result of an arranged Islamic marriage ceremony on 20 May 2017. This was the first occasion the appellant and sponsor met. On this date the appellant was an overstayer, his leave to remain having already been curtailed to expire on 26 August 2013. Thus it was incorrect for the FTTJ to describe the appellant's immigration status as precarious albeit he was right to find the appellant had no leave to remain when the appellant's and sponsor's family life was established. It follows that, pursuant to s117B(4), little weight was to be given to that family life. As regards the other public interest factors in s117B, the FTTJ noted the appellant spoke English. It was submitted that the FTTJ had failed to make a finding as to whether the appellant met the financial criteria in the Immigration Rules but it is implicit from the respondent's failure to refer to this in the reasons for refusal that he fulfilled those criteria. Indeed the FTTJ found the appellant was "not likely to be a burden on the state as I am sure he will obtain employment should his immigration status alter". This is consistent with the respondent's lack of challenge on that issue. In any event as the FTTJ states at , the appellant's ability to speak English and his financial independence were neutral factors. This accords with the guidance of the Supreme Court in Rhuppiah v SSHD  UKSC 58 at  that sub-sections 117B(2) and (3) " propel a conclusion that, where those factors exist, there is a public interest in favour of the claims".
20. Finally, the FTTJ had regard to the maintenance of immigration control, which is in the public interest pursuant to s117B(1) and to which he was required to have regard by the terms of s117A(2).
21. Taking the decision in the round, it clear that the FTTJ had considered the appellant's Article 8 claim outside the Rules at its highest, namely on the basis that the appellant had a family life with his wife, his mother-in-law, and his disabled sister-in-law. He had previously found, on sustainable grounds, that the appellant did not meet the criteria in the Immigration Rules for the grant of leave to remain on the basis of his family life. He nonetheless considered the claim outside the Rules, albeit he did not find the appellant's and his family's circumstances to be exceptional on the evidence before him. Having done so, he found on sustainable grounds that the degree of interference with the appellant's, his wife's, his mother-in-law's and his sister-in-law's protected rights was not such as to outweigh the public interest in the maintenance of immigration control. That conclusion is based on the evidence before the FTTJ and is sustainable. It contains no material error of law. As was said by Keene LJ in IA (Somalia) v Secretary of State for the Home Department  EWCA Civ 323:
"... in public law cases, an error of law will be regarded as material unless the decision-maker must have reached the same conclusion without the error ... [A]n error of law is material if the Adjudicator might have come to a different conclusion ... "
22. In the present case the FTTJ identified various flaws in the evidence before him. This is a case where the parties to the marriage did not meet until the day they participated in the Islamic marriage ceremony. While the FTTJ found they had a genuine and subsisting marriage, little weight could be given to it because of the terms of s117B(2). The ability of the appellant to speak English and his lack of financial dependence on the state, including his ability to find employment, are neutral factors. The FTTJ was entitled to give significant weight to the public interest in this case given both the very limited independent evidence of the appellant and his wife taking a significant role in the care of his wife's disabled sister and the lack of medical evidence of the inability of the appellant's mother-in-law to continue to care for her disabled daughter if the appellant and his wife were to relocate to Pakistan together. The FTTJ did not refer to it specifically but he would have been entitled to take into account the appellant's very poor immigration history: his leave to remain was curtailed in August 2013; he made two applications for EEA residence cards which were refused in 2013 and 2014; he was served with notice of liability to removal as an overstayer on 11 April 2016 and it was against that background that he and the sponsor had their Islamic marriage ceremony about year later at a time when the appellant was still lawfully married to someone else. This history suggests the appellant was attempting to circumvent the Immigration Rules in order to remain in this country irrespective of the quality of his marriage to the sponsor.
23. In the reasons for refusal, the respondent had averred that the appellant could return to Pakistan, accompanied by his wife, to make an application for entry clearance; alternatively his wife could remain in the UK while he did so. The grounds of appeal to the FTT make no reference to this reason for refusal and the short summary of the appellant's counsel's submissions before the FTTJ do not refer to it either. Nonetheless, the grounds of appeal to this tribunal refer to the FTTJ having failed to make a finding on this issue and that this failure was a material error of law. The FTTJ did not refer to this issue. It was submitted for the appellant, before me, that, in the light of the guidance in Chikwamba, it was an unlawful interference for the appellant to be expected to return to Pakistan to make an application for entry clearance, particularly as he met all the criteria in the Rules apart from the immigration eligibility criteria.
24. There is relevant guidance in R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM - Chikwamba - temporary separation - proportionality) IJR  UKUT 189 (IAC) which is summarised in the headnote as follows:
"(i) Appendix FM does not include consideration of the question whether it would be disproportionate to expect an individual to return to his home country to make an entry clearance application to re-join family members in the U.K. There may be cases in which there are no insurmountable obstacles to family life being enjoyed outside the U.K. but where temporary separation to enable an individual to make an application for entry clearance may be disproportionate. In all cases, it will be for the individual to place before the Secretary of State evidence that such temporary separation will interfere disproportionately with protected rights. It will not be enough to rely solely upon the case-law concerning Chikwamba v SSHD  UKHL 40.
(ii) Lord Brown was not laying down a legal test when he suggested in Chikwamba that requiring a claimant to make an application for entry clearance would only "comparatively rarely" be proportionate in a case involving children (per Burnett J, as he then was, in R (Kotecha and Das v SSHD  EWHC 2070 (Admin)).
(iii) In an application for leave on the basis of an Article 8 claim, the Secretary of State is not obliged to consider whether an application for entry clearance (if one were to be made) will be successful. Accordingly, her silence on this issue does not mean that it is accepted that the requirements for entry clearance to be granted are satisfied.
(iv) In cases where the Immigration Rules (the "IRs") do not fully address an Article 8 claim so that it is necessary (pursuant to R (Nagre)) to consider the claim outside the IRs, a failure by the decision maker to consider Article 8 outside the IRs will only render the decision unlawful if the claimant in fact shows that there has been (or, in a permission application, arguably has been) a substantive breach of his or her rights under Article 8."
25. In Hesham Ali (Iraq) v SSHD  UKSC 60 (a deport/foreign criminal case) Lord Reed said that "... where a person was residing in the UK unlawfully at the time when the relationship was formed, but would have been permitted to reside here lawfully if an application were made from outside the UK, the latter point should be taken into account. That example illustrates how the distinction between settled migrants and aliens residing in the host country unlawfully may be, in some situations, of limited practical importance when translated into the context of UK immigration law (see, for example, Chikwamba v Secretary of State for the Home Department  UKHL 40 ;  1 WLR 1420". In Agyarko  UKSC 10 Lord Reed said again that if an applicant, even if residing in the UK unlawfully, was otherwise certain to be granted leave to enter, at least if an application were made from outside the UK, then there might be no public interest in his or her removal and that point was illustrated by Chikwamba. According to the guidance in R (on the application of Kaur) v SSHD  EWCA Civ 1423 the Chikwamba principle requires a fact-specific assessment in each case, would only apply in a very clear case and even then would not necessarily result in a grant of leave to remain.
26. Neither the appellant nor his wife, or indeed any of the witnesses, identified in their witness statements the impact of a temporary separation the appellant seeks entry clearance from Pakistan. There is brief reference to the appellant's oral evidence at  that "his absence would have an effect on the family and especially his sister in law who had learning difficulties. At the present time he cared for her and spent all his time wither when she was at home". In her oral evidence the appellant's wife referred only to the impact of her moving to Pakistan. Other witnesses only identified the impact of the appellant's return to Pakistan with or without his wife, rather than a temporary separation. Thus the appellant adduced no evidence as to the impact of a temporary separation, contrary to the guidance in Chen.
27. The FTTJ made findings of fact as regards the circumstances of the appellant and his wife and their roles as carers and helpers within that family, particular as regards the appellant's disabled sister-in-law. He found that the appellant's mother-in-law could continue to be the primary carer for her disabled daughter. I was not directed to any evidence which the FTTJ had failed to consider in connection with a temporary separation to enable the appellant to seek entry clearance. While it is right that the FTTJ failed to make a specific finding on this issue, had he done so, he would have found the appellant had adduced insufficient evidence to demonstrate a temporary separation would interfere disproportionately with the protected rights of the family members whether cumulatively or individually. Thus the failure of the FTTJ to make a finding on this issue is not a material error of law. The outcome of the appeal would have been no different had he done so.
28. The making of the decision of the First-tier Tribunal did not involve the making of a material error of law.
29. I do not set aside the decision of the FTTJ. This appeal against that decision is dismissed.
30. Given my references to the health and disability of various family members, the appellant is entitled to anonymity in these proceedings.
A M Black
Deputy Upper Tribunal Judge Dated: 24 June 2019
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
A M Black
Deputy Upper Tribunal Judge Dated: 24 June 2019