(Immigration and Asylum Chamber) Appeal Number: HU/05645/2019
THE IMMIGRATION ACTS
Heard at Birmingham CJC
Decision & Reasons Promulgated
On 3 December 2019
On 16 th December 2019
DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON
mr Faisal Mehmood
(anonymity direction not made)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr A Hussain, Counsel, Direct Access
For the Respondent: Mrs H Aboni, Senior Home Office Presenting Officer
DECISION AND REASONS
Details of the Appellant
1. The appellant a citizen of Pakistan, born on 2 August 1988, appealed to the First-tier Tribunal against the decision by the respondent, dated 15 May 2019, to refuse the appellant's application for leave to remain on the basis of his family life with his partner. The First-tier Tribunal, in a decision promulgated on 1 July 2019, dismissed that appeal.
2. The appellant appeals with Upper Tribunal permission on the basis that it was arguable that when assessing proportionality the fact that the appellant can meet the financial requirements of the Rules is a material consideration and given that it was arguable the sponsor's earnings were sufficient to meet the Rules, it was further arguable that the judge did not take this into account.
3. The appellant was married to a previous partner in 2010 and submitted an unsuccessful EEA residence card. The findings of the First-tier Tribunal, which are not disputed, indicate that that marriage broke down and they separated in 2012. The appellant began a relationship with the sponsor, who is his cousin, in August 2013. The sponsor obtained employment in February 2016 and the appellant applied for divorce in or around this time. The appellant's divorce was finalised on 1 June 2018 and the couple entered an Islamic marriage on 27 January 2018.
4. Judge of the First-tier Tribunal Gurung-Thapa found that there were no insurmountable obstacles under paragraph EX.1(b), meaning the very significant difficulties, that would be faced by the applicant or their partner in continuing family life outside the UK. The judge also took into consideration Agyarko v SSHD  UKSC 11 and reminded herself that such obstacles were to be understood in the practical and realistic sense rather than referring solely to obstacles which make it literally impossible for the family to live together in the country of origin of the non-national. Having made reasoned findings from  to , which were not substantively challenged before me, that there were no insurmountable obstacles, the judge went on to consider Article 8 outside the Immigration Rules. The judge was satisfied that there were no exceptional circumstances. In the alternative the judge went on to consider the five-stage test in Razgar  UKHL 27. The judge directed herself appropriately in relation to the relevant case law concluding accepting that the fact that there were insurmountable obstacles is not determinative of the issue of proportionality. However, it is an indication that removal would not be disproportionate if there were no other circumstances which point in the appellant's favour in the balance and the judge reminded herself what was said by the Supreme Court in Agyarko at paragraph 57 that in general in cases concerned with precarious family life a very strong or a compelling reason is required to outweigh the public interest in immigration control.
5. The judge went on to find at  that it was not unreasonable for the appellant and the sponsor to continue their family or private life in Pakistan concluding that the parties ought to have known from the outset that there was no right for them to choose their country where family life could be enjoyed and that the sponsor chose to enter into a relationship with the appellant knowing that he had no leave to remain. The judge then considered Part 5A of the Nationality, Immigration and Asylum Act 2002, Section 117, and found taking into consideration all the factors including that there was nothing to indicate that the appellant might come within the scope of Chikwamba v SSHD  UKHL 40, that removal was disproportionate.
Error of Law Hearing
6. Mr Hussain relied on two main grounds before me. The first ground was in relation to Judge Gurung-Thapa's consideration of Article 8 outside of the Rules, it being submitted that she had failed to address whether it was "reasonable" to expect the appellant to leave given in particular that the appellant is British and is employed by the NHS as a speciality personal assistant for community paediatrics, earning a salary well above the £18,600 level and does not claim benefits. Mr Hussain made submissions about the appellant's medical conditions and submitted in all the circumstances that it was not reasonable to uproot a British citizen in these circumstances to Pakistan and that the judge had failed to assess the sponsor's medical conditions in the context of her right to free treatment as a British citizen in the UK and someone who earns well above the threshold that the respondent has set in Immigration Rules. In Mr Hussain's second ground he submitted that it was accepted by the respondent that the sponsor met the financial requirements in the Reasons for Refusal Letter at page 3 of 7. In those circumstances it was submitted that the judge failed to factor this consideration in her findings on Article 8 outside the Immigration Rules. Mr Hussain relied on paragraph 34 of Agyarko and the Supreme Court together with paragraph 36.
7. Mr Hussain emphasised that the sponsor met the financial requirements and submitted that the judge had erred in law in stating at  that she did not "find that there is anything to indicate that the appellant might come within the scope of Chikwamba v SSHD  UKHL 40". Although the judge had stated in her consideration of Section 117 that there was no evidence the appellant was reliant on taxpayers and that financial independence was a neutral factor, this failed to adequately consider the fact that the financial requirements were met. In relation to the English language requirement Mr Hussain accepted although there was no evidence of this before the First-tier Tribunal, and accepted that the judge had found that there was no evidence the appellant spoke English and he gave evidence in Urdu, Mr Hussain strayed into giving evidence in claiming that the level required is the most basic level and "won't be a problem" for the appellant. He submitted that the judge had failed to give any good reason why the sponsor should have to leave the UK.
8. For the Home Office Mrs Aboni relied on the respondent's Rule 24 response and submitted that the grounds of appeal were an attempt to reargue the case and that the fact that the sponsor may earn enough to meet the financial requirements of the Rules was only one factor and that the appellant had failed to meet the English language requirements and the immigration status requirements. The judge had fully considered that there were no insurmountable obstacles to the couple continuing family life outside the United Kingdom and then went on properly to consider the case outside of the Immigration Rules and came to the sustainable conclusion that removal was proportionate. It was her submission that the judge was clearly aware that the appellant met the financial requirements including that reference was made at  to financial independence but it was evident, and the judge was entitled to take into account, that not all the requirements were met in finding as she did that this was not a case that came within the scope of Chikwamba.
Error of Law Conclusions
9. Mr Hussain's first ground was without merit; Mr Hussain was attempting to make a false distinction in relation to the judge's findings, in stating that she had failed to consider whether it was reasonable for the British sponsor to relocate to Pakistan. The judge in her consideration of Article 8 outside of the Immigration Rules took into account her findings under the Immigration Rules that there were no insurmountable obstacles which included a detailed consideration of all the factors including the fact that the sponsor had a job in the UK and family here and made findings on all of those factors together with findings on the appellant's health and that there was no evidence to suggest she would not be able to receive appropriate treatment/medication in Pakistan.
10. The judge was clearly aware of the different applicable test outside the Immigration Rules and her findings indicate that she was fully cognisant of the sponsor's circumstances; the judge was entitled to find as she did that there was nothing very strong or compelling in this case which concerned precarious family life that might outweigh the public interest in immigration control including as the factors which the appellant relied on were largely the factors relied on in relation to the application under the Immigration Rules.
11. However the judge specifically addressed, having considered all the factors, that it had not been shown to be unreasonable for the appellant and the sponsor to continue their family or private life in Pakistan, at . That finding was available to the First-tier Tribunal. No error of law is disclosed.
12. With respect to ground 2, although the judge may not have specifically set out that the appellant and sponsor met the financial requirements of the Immigration Rules (which had been accepted at page 3 of 7 of the refusal letter) in her Article 8 consideration outside of the Immigration Rules, that is not fatal to the decision. The sponsor's ability to meet the financial requirements is implicit in her findings, including that the appellant and sponsor had "financial independence" at  albeit that this finding was in the context of it being a neutral factor under Section 117.
13. The judge also specifically turned her mind at  to Chikwamba. What the judge was saying at , was that considering all the factors on which she had already made findings: including that the appellant had been an overstayer and the relationship had begun when the appellant had known he had no leave to remain, that there was no evidence that the appellant spoke English; the fact that the appellant met the financial requirements of the Immigration Rules would not be sufficient to come within the ambit of Chikwamba and Agyarko v SSHD  UKSC 11, in that it had not been shown that an application to return would be "otherwise certain to be granted leave to enter".
I have considered what was said by this Tribunal 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."
15. The jurisprudence reminds therefore that the Chikwamba principle requires a fact-specific assessment and that it only applies in a very clear case and even then would not necessarily result in a grant of leave to remain (see including R (on the application of Kaur) v SSHD  EWCA Civ 1423).
16. The judge was correct in saying in terms, as she did at  that the Chikwamba principle does not assist this appellant. The factual matrix is different. It is not the case that this appellant would be required to leave the UK and apply for entry clearance to comply with the respondent's policy. Unlike the Chikwamba appellant, I agree with Mrs Aboni that it not been shown that it is a certainty that this Appellant would be granted entry clearance, including as the appellant had failed to meet the English language requirements and the immigration status requirements. Although as discussed above there was evidence, and the First-tier Tribunal made findings, including in relation to the sponsor's life and work in the UK and the claimed difficulties in relocating, Mr Hussain did not refer me to any adequate evidence adduced in relation to any claimed difficulties with a temporary separation.
17. Whilst the First-tier Tribunal's findings on this point were brief therefore, they were adequate and there was no material error in the judge's findings that there was effectively no evidence that the appellant's removal, including a temporary separation which the judge was considering at , would interfere disproportionately with the protected rights of family members whether cumulatively or individually.
18. The decision of the First-tier Tribunal does not contain an error of law and shall stand. The appellant's appeal is dismissed.
No anonymity application was made or is appropriate in this case.
Signed Date: 9 December 2019
Deputy Upper Tribunal Judge Hutchinson
TO THE RESPONDENT
As the appeal is dismissed no fee award can be made.
Signed Date: 9 December 2019
Deputy Upper Tribunal Judge Hutchinson