(Immigration and Asylum Chamber) Appeal Number: HU/02955/2017
THE IMMIGRATION ACTS
Heard at Priory Courts, Birmingham
Decision & Reasons Promulgated
On 2 nd April 2019
On 9 th April 2019
DEPUTY UPPER TRIBUNAL JUDGE M A HALL
Bibi Walia Naseri Fazlullah
(ANONYMITY DIRECTION NOT MADE)
For the Appellant: Mrs A Bachu of Counsel, instructed by IAS (UK) Limited
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction and Background
1. The Appellant appeals against a decision of Judge Lodge (the judge) of the First-tier Tribunal (the FtT) promulgated on 21 st March 2018.
2. The Appellant is a citizen of Afghanistan. She was granted entry clearance as the spouse of a person settled in the UK (to whom I shall refer as the Sponsor) on 16 th March 2014. Her leave was valid until 26 th November 2016.
3. On 7 th November 2016 the Appellant applied for further leave to remain. The application was refused on 6 th February 2017. The Respondent found the financial requirements of Appendix FM were not satisfied.
4. The appeal was heard by the FtT on 8 th March 2018. The judge recorded that it was accepted by Counsel representing the Appellant, that she could not satisfy the Immigration Rules. The judge was asked to find that exceptional circumstances existed which would lead to unjustifiably harsh consequences, and therefore allow the appeal with reference to Article 8, outside the Immigration Rules.
5. The judge found no exceptional circumstances, and the appeal was dismissed.
The Application for Permission to Appeal
6. The Appellant's representatives contended that the judge had erred in finding there would be no unjustifiably harsh consequences and explained that the Sponsor originates from Afghanistan, and only returned to Afghanistan to marry. It would be unjustifiably harsh for him to return there to live permanently.
7. It was submitted that the judge had erred at paragraph 32 in finding that any private life established by the Appellant had been established while her immigration status is precarious. It was contended at paragraph 8 of the grounds, that this indicated that the judge believed the Appellant had lived in the UK illegally.
8. It was contended that the judge had been mistaken in relation to the Appellant's immigration history. It was also contended that the judge had erred at paragraph 32 in finding that the Appellant does not speak English. It was submitted that the Appellant had passed her B2 English test to satisfy the Immigration Rules.
The Grant of Permission to Appeal
9. Permission to appeal was initially refused by Judge Adio, but subsequently granted by Judge Chalkley who found the grounds arguable, commenting that it would be for the Upper Tribunal to decide if the errors alleged are material or not.
10. Directions were issued that there should be an oral hearing before the Upper Tribunal to ascertain whether the FtT had erred in law such that the decision must be set aside.
My Analysis and Conclusions
11. At the oral hearing Mrs Bachu relied upon her skeleton argument, contending that the judge had erred in finding that the Appellant could not speak English. Also, reference was made to Rhuppiah  UKSC 58 in which the Supreme Court found that the provisions of section 117B of the Nationality, Immigration and Asylum Act 2002 are not a "straightjacket". There is provision for some flexibility.
12. Mr Mills accepted that the judge had erred in finding that the Appellant could not speak English, but submitted that this was not material, and if the judge had found that the Appellant could speak English, this would not have altered the decision in any way.
13. I found that the judge did err at paragraph 32 in recording that the Appellant could not speak English. This had not formed part of the reasons for refusing her application. However I did not find the error to be material for the following reasons.
14. In my view, even if the judge had found that the Appellant could speak and understand English, that would not have altered the decision that he made. The appeal was put to the judge on the basis that the Appellant could not satisfy the Immigration Rules, in order to be granted leave to remain. This concession was made by Counsel who represented the Appellant and recorded by the judge at paragraph 22. It is not disputed that Counsel made such a concession. The judge at paragraph 28 noted that in conceding that the rules were not met, the Appellant was conceding that she could not satisfy EX.1.(b) and therefore was conceding that there are no insurmountable obstacles to family life continuing in Afghanistan. There is a typographical error in paragraph 28 in that the judge omits the word "not". However the meaning is clear.
15. The judge was therefore asked to allow the appeal by relying upon Article 8 outside the Immigration Rules. The correct approach is set out in paragraph 31 of TZ (Pakistan)  EWCA Civ 1109 in which it is stated that where Article 8 is in issue within the rules there will have to be consideration of whether there are insurmountable obstacles to family life continuing outside the UK. Guidance is given that when a Tribunal goes on to consider an Article 8 claim outside the rules, it will still need to consider whether or not there are insurmountable obstacles, as this will be relevant to the evaluation of whether there are exceptional circumstances. TZ had not in fact been published when the judge made his decision, but in my view the judge does in fact follow the principles outlined in that case. The judge was entitled to take into account the concession made by Counsel, but at paragraph 28 makes a finding that in any event he could not, on the facts, find that there would be insurmountable obstacles, describing the Appellant and Sponsor as being young, fit and healthy, and culturally and linguistically Afghans.
16. The judge was asked to consider whether exceptional circumstances applied which would result in unjustifiably harsh consequences for either the Appellant or the Sponsor if the Appellant was not granted further leave to remain. The factors that the judge was asked to take into account are listed at paragraph 24, and the judge considers those factors at paragraphs 29-31.
17. The judge was entitled to conclude that those factors either individually or cumulatively did not amount to exceptional circumstances, and gave sustainable and adequate reasons for reaching that conclusion.
18. Contrary to what is claimed in the grounds at paragraph 8, the judge did not find that the Appellant had been living in the UK illegally for four years. The judge at paragraph 32 makes reference to section 117B of the 2002 Act, finding that he had not been "furnished with any evidence with regard to the private life the Appellant has established in the UK." That was a finding open to the judge to make. The judge then records that any private life that had been established, was established while the Appellant's immigration status is precarious. The judge does not err in reaching that conclusion. This is not a case of the judge operating an "straightjacket" policy. The Appellant had a precarious immigration status because she did not have settled status. She was only ever granted limited leave to remain.
19. The judge has considered all material evidence in this case. It is not suggested that the judge has made any perverse or irrational findings and I find as a fact that he has not. The judge did not find that exceptional circumstances existed which would result in unjustifiably harsh consequences, and gave sustainable reasons for those findings. The grounds upon which permission to appeal was granted display a disagreement with the conclusions reached by the judge but do not disclose any material error of law. The only error made by the judge was to make reference to the Appellant's ability in English but this was not a material error.
Notice of Decision
The decision of the FtT does not disclose a material error of law. I do not set aside the decision. The appeal is dismissed.
The FtT made no anonymity direction. There has been no request for anonymity made to the Upper Tribunal and I see no need to make an anonymity direction.
Signed Date 2 nd April 2019
Deputy Upper Tribunal Judge M A Hall
TO THE RESPONDENT
The appeal is dismissed. There is no fee award.
Signed Date 2 nd April 2019
Deputy Upper Tribunal Judge M A Hall