(Immigration and Asylum Chamber) Appeal Number: HU/12622/2015
THE IMMIGRATION ACTS
Heard at: Bradford
Decision and Reasons Promulgated
On:25 January 2019
On: 21 February 2019
UPPER TRIBUNAL JUDGE HEMINGWAY
MR MUHAMMAD WARIS
(ANONYMITY NOT DIRECTED)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr R Ahmed (Counsel)
For the Respondent: Mr A Tan (Senior Home Office Presenting Officer)
DECISION AND REASONS
1. This is the claimant's appeal to the Upper Tribunal, brought with permission, from a decision of the First‑tier Tribunal (the tribunal) which it sent to the parties on 26 June 2017; whereupon it dismissed his appeal from a decision of an entry clearance officer refusing to grant him entry clearance to come to the United Kingdom (UK) with a view to settlement as the intended future husband of his UK based female sponsor.
2. In a decision of 28 November 2018, following a hearing of 16 November 2018, I set aside the tribunal's decision and I directed that there be a further hearing before the Upper Tribunal so that the decision could be remade in this forum. I have now remade that decision and what follows constitutes an explanation as to how I have done so.
3. The claimant, who was born on 7 January 1976, is a national of Pakistan. His sponsor, one [RB], is a female British national and she resides permanently in the UK. She has been married before but that marriage ended in divorce. She entered into a religious marriage with the claimant whilst she was spending time in Pakistan. However, since that marriage took place prior to her divorce being finalised in accordance with UK legal requirements, UK law does not recognise her as being a legally married person. There has never been any issue about that. But the parties wished to live together in the UK and so the claimant applied for entry clearance. In so doing, both of them said the intention was that they would marry lawfully in the UK and that the claimant would then reside in the UK with the sponsor.
4. The application for entry clearance was not successful. Indeed, it was refused by an entry clearance officer on 4 December 2015. There were a number of reasons why the entry clearance officer refused the application. First of all, he was not satisfied that the claimant was genuinely seeking entry to the UK to enable a marriage to take place. That was for the stated reason that there was no evidence that a wedding had been booked. Secondly, the entry clearance officer thought that the claimant had failed to demonstrate that his sponsor had a gross income, as the Immigration Rules require, of at least £18,600.00 per annum. Thirdly, the entry clearance officer thought that, irrespective of whether the minimum income threshold had been reached or not, the claimant had failed to provide certain specified evidence as contained in Appendix FM‑SE to the Immigration Rules. It is notable that the claimant had failed to provide a letter from his sponsor's employer confirming her employment as well as, it was said, various other documents relating (it seems) to the sponsor's self‑employment. Pausing there, reliance was being placed upon income from employment and also income from self‑employment on the basis that the sponsor runs her own small catering business.
5. The claimant appealed to the First‑tier Tribunal which, as noted above, dismissed his appeal. But as I say, that decision has now been set aside. Before me, for the purposes of the remaking of the decision, it was accepted on behalf of the claimant that he could not succeed under the Immigration Rules. That was conceded, though, only on the basis that there had been a failure to supply a letter from the employer. It was contended that actually or in substance all other requirements of the Immigration Rules had been met so that the appeal ought to succeed under Article 8 under the European Convention on Human Rights (ECHR).
6. I had before me, for the purposes of the remaking of the decision, documentation provided by both parties. I have taken all of it into account but I have only made specific reference to specific documentary items where I have found it necessary to do so in order to explain my decision. I heard oral evidence from the sponsor and oral submissions from each representative. But, again, I have only referred to what was said where doing so is necessary or otherwise required in order for me to explain my decision.
7. Technically, the question of the claimant's intentions (that is to say whether he is genuinely seeking entry clearance for the purpose of a marriage) is before me. However, the contention that there is no intention to marry simply because no wedding has been booked is, in my judgment, entirely unsustainable. Obviously, a booking without a grant of entry clearance and a projected date for entry would be entirely premature. Mr Tan did not seek to argue the point, to any extent whatsoever, before me. Accordingly, whilst it is accepted that the claimant cannot succeed under the Immigration Rules in any event, I conclude that he does satisfy the relevant part of the Rules relating to an intention to marry in the UK.
8. There is then the question of the lack of a letter from the sponsor's employer. The sponsor's position as to that has been consistent. She says that her employer will simply not provide such letters either to her or to anyone else. She says she has asked for such a letter but has been rebuffed. It is said that she even asked her employer to attend the hearing before the tribunal but that that employer declined to do so. There is before me, somewhat ironically perhaps, a letter written by the employer confirming that employer's unpreparedness to supply the sponsor with a letter confirming the fact of her employment. It is asserted in that letter that there will be a range of other documentation (which of course is true in the case of genuine employment) to prove the existence of that employment. The letter is dated 14 November 2018 so was prepared relatively recently. It demonstrates no change of mind from the situation as it was said to have been when the entry clearance application was made and when the appeal was initially heard by the tribunal. There is, indeed, other documentation before me which does evidence the sponsor's employment. There are bank statements showing her wage being paid into her bank account on a regular basis. There are P60 forms for 2017 and 2018. There are wage slips. Indeed, Mr Tan does not seek to argue that the sponsor is not employed. The sponsor told me that her employers "still won't provide letters". Since that part of her oral evidence is corroborated by documentary evidence emanating from the employer I accept what she says. I find, therefore, that she is employed by Spring Mount Specialist Care Home Ltd and has been so employed throughout the period spanning the application for entry clearance and the appeal before me for the purposes of the remaking of the decision. I also find that her employer genuinely refuses to supply a letter confirming her employment for entry clearance purposes, that she has tried to persuade her employer to do so and that, being realistic, there is really no more that she can do.
9. There was an issue of dispute as to whether or not the various other documents required under Appendix FM/SE had been supplied with the application for entry clearance. Essentially, the entry clearance officer says that such documents were not provided but the sponsor and claimant assert that they were. Although this perhaps once loomed large as an issue I have decided, given that I am now called upon to decide an Article 8 appeal on the basis of circumstances as they stood as at 25 January 2019 (the date of the remaking hearing) it is not of real significance whether on a date in 2015 prescribed documentation had or had not been supplied. In any event it is really very difficult to decide the issue now. Sponsors and applicants are capable of failing to meet the quite exacting requirements with respect to specific documents. But there will also be times when documents go astray or might be overlooked by a busy entry clearance officer.
10. There are really two key issues which, in fact, I have to decide in order to resolve this appeal. The first is whether or not Article 8 is engaged. If it is, the second issue is whether, in all the circumstances, it would be disproportionate to reach a decision having the effect of excluding the claimant from coming to the UK at least until any future application for entry clearance which might be made, will succeed.
11. As to whether Article 8 is engaged at all, that is, of course, a consideration which is necessary when following the fivefold test set out in the well-known case of Razgar  UKHL 27. The argument for the Secretary of State is to the effect that there is no interference of such gravity as to potentially engage Article 8 because if the claimant cannot come to live in the UK the sponsor can go to live with him in Pakistan. If that happens, runs the argument, family life can continue there.
12. The sponsor, perhaps rather surprisingly, was not asked any direct questions as to whether she would be able to join the claimant in Pakistan when she gave evidence before me. In a witness statement of 19 January 2019, she said a little about that. She acknowledged that she has extended family in Pakistan but said that she has no meaningful contact with them. She asserted that she would not be able to work in Pakistan and that she will find it hard to adjust having been self‑sufficient in the UK. She says that she has family and friends in the UK. In a witness statement prepared on 12 June 2017 she indicated that she has lived in the UK since 1997 and that her family members including her mother are located in the UK. She adds "we all live together". She then refers to her employment and to her business in the UK.
13. It is, I think, a little disappointing that the sponsor's ties to the UK were not addressed in more detail. More detail would have helped. But I must do my best with the evidence I have.
14. It was said by the Court of Appeal in AG (Eritrea)  EWCA Civ 801, that the threshold of engagement with respect to Article 8 "is not a specially high one". It is worth noting that there has been more than one decision issued by the Upper Tribunal in which it has been decided, on the basis of specific facts, that Article 8 was engaged even in the context of cases involving the refusal of a visit visa. One such case, by way of example, is Mostafa (Article 8 in Entry Clearance)  UKUT 112 (IAC). But nevertheless, it will not automatically be the case that Article 8 is engaged in circumstances where a married couple or a couple intending to marry are separated in consequence of a refusal of entry clearance. There will, in my view, be circumstances where a UK based sponsor can and will reasonably be expected to relocate to Pakistan and, if that can be done without undue hardship, then it is really quite difficult to see how Article 8 will be engaged. There is often an assumption that it is engaged in these sorts of cases but such a routine assumption if made without a consideration of the specific facts might be a complacent one.
15. As to the circumstances of this particular case, what the sponsor has had to say about her ties to the UK, albeit not in great detail, has not been the subject of any specific challenge. I accept that, although not born in the UK, she has resided here since 1987. I accept that she has close family members in the UK. I accept that she is used to working and that, additionally, she does have her own small business in the UK, which gives her a level of independence which she may not have in Pakistan. As to that, no background country material regarding the position of women in current day Pakistan has been provided. But I think it reasonable to conclude that if she is to relocate there it is unlikely she will be able to work because of different societal expectations to those prevailing within the UK. In all the circumstances I would conclude that Article 8 is engaged in this case.
16. There is no doubt that any interference with Article 8 rights is lawful and is, speaking generally, in pursuance of a legitimate aim. That then brings us to the question of proportionality.
17. Evidence has been provided concerning the sponsor's current and historical financial situation. In particular, accounts which appear to have been properly prepared by a firm of accountants, and which relate to her catering business, have been provided. Those demonstrate that her business made a gross profit of £3,651.00 in the tax year ending 5 April 2016 and a gross profit of £2,294.00 for the tax year ending 5 April 2017. Her earnings from employed income for the tax year ending 5 April 2017 amounted to £17,544.61 so that placed her, for that year, over the minimum income threshold of £8,600.00 with a little to spare. But no accounts have been provided for a later period than that.
18. The documentation does indicate that the earnings from employment remain at a similar level. I have not been provided with a schedule concerning the earnings for the period leading up to the date of the remaking hearing with respect to self‑employment. That would have helped. As it is, in order to look at what the last 12 months might tell us, I have calculated, from the sponsor's bank statements, that she has received credits to her bank account, which might relate to her business income, amounting to some £1,800.00. The sponsor said, in oral evidence, that such entries did relate to her self‑employed earnings. I was not specifically invited to disbelieve her about that. I would accept Mr Tan's submission to the effect that she appeared to be quite vague in oral evidence regarding her self‑employed earnings but vagueness does not necessarily lead to a conclusion that the person who has been vague has been dishonest or evasive. There is no suggestion that she has any other source of income. I have concluded that I am able to accept that for the past year or so she has earned some £1,800.00. That suggests that her overall earnings do remain above the minimum income threshold.
19. I have considered whether the claimant should be expected to make a fresh application for entry clearance. Mr Tan suggests that, in fact, I should so conclude. He alludes to the possibility that a letter might be supplied by the sponsor's employer in the future particularly if her solicitors make a direct request. But it seems to me that, on that issue, the employers have nailed their colours firmly to the mast. There has been a consistent refusal to supply such a letter and an indication that because of previous concerns (unspecified) when such letters have been issued, they are no longer prepared to issue them. It does seem to me, therefore, that if a fresh application for entry clearance were to be made it would probably fail on the basis that not all of the documents required by Appendix FM/SE can be provided.
20. I do regard the failure to provide a letter confirming employment as an exceptional circumstance. It seems to me to be highly unusual. I cannot recall ever coming across it before. The view might be taken that it is so unusual that it was not thought necessary for provision to be made for it in the Immigration Rules.
21. Putting together my conclusion that the income threshold is surpassed and has been so, I find, throughout the period spanning the time of the entry clearance application through to the remaking hearing before me, and the inability through no fault of the claimant or sponsor to comply with the Immigration Rules unless the sponsor were to, for that reason, change job, then I would conclude that this case, on its particular facts, is one where Article 8 demands that the appeal be allowed. In other words, the interference that there is with Article 8 rights is disproportionate.
22. So, in remaking the decision, I have decided to allow the claimant's appeal against the entry clearance officer's decision to refuse entry clearance.
23. Finally, I have not made any anonymity direction. None was sought before me and I cannot think of a good reason to grant anonymity.
The decision of the First‑tier Tribunal contained errors of law and has already been set aside.
In remaking the decision, I allow the claimant's appeal against the decision of the entry clearance officer refusing to grant him entry clearance to come to the UK with a view to settlement on the basis of his relationship with his sponsor.
I make no anonymity direction for the reasons set out above.
Signed: Date: 20 February 2019
Upper Tribunal Judge Hemingway
TO THE RESPONDENT
I make no fee award. None was sought before me.
Signed: Date: 20 February 2019
Upper Tribunal Judge Hemingway