(Immigration and Asylum Chamber) Appeal Number: HU/15268/2018
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 3 September 2019
On 13 September 2019
UPPER TRIBUNAL JUDGE PICKUP
Mr Hassan Maqsood
(ANONYMITY DIRECTION NOT MADE)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr S Tariq, Legal Representative, West London Solicitors
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer
DECISION AND REASONS
1. This is the appellant's appeal against the decision of First-tier Tribunal Judge Place promulgated 20 June 2019 dismissing the appeal against the decision of the respondent dated 19 June 2018 to refuse the entry clearance application made, on 27 March 2018, on the basis of being the spouse of Fehmida Awan, a person settled and present in the UK as a British citizen. First-tier Tribunal Judge Omotosho granted permission to appeal to the Upper Tribunal on 24 July 2019, considering it arguable that the First-tier Tribunal Judge had failed to assess the child's best interests and arguably failed to carry out an Article 8 proportionality exercise properly.
2. The judge took account of the appellant's immigration history, which in summary was that he entered the UK as a student but overstayed. His visa had expired in 2012. He was then encountered in 2014 and given reporting conditions but he failed to report as required and was listed as an absconder. That is more than merely overstaying and there is an increased and significant public interest in removing him. However, he voluntarily departed on 12 February 2018. Before he departed, he had met Ms Awan in April of 2016, whilst effectively on the run from the authorities, and they became engaged in February 2017. He did not leave the UK for a further twelve months, until February 2018.
3. It was suggested to me today that the appellant and the sponsor had commenced a family life by cohabiting in the UK sometime between when they met and when he left. However, they were in fact married in what was said to be an arranged marriage in Pakistan. The sponsor's witness statement says:
"I confirm that I was first introduced to my spouse in April 2016 in London and then started to see and talk to each other on a regular basis and ended up getting engaged in February 2017 followed by our marriage on 15 February 2018. I confirm that I lived in Pakistan with my husband for a few months after the marriage while on annual leave."
4. It is not indicated at all in that statement, which was before the First-tier Tribunal, that they were cohabiting. I do not know and it is not clear to me what oral evidence was given by the sponsor at the hearing but I do not consider that the judge could have been told that they were cohabiting because at paragraph 23 of the decision the judge stated, "I note that the appellant and Ms Anwa have never enjoyed family life together in the UK, having married in Pakistan." So, if there was a degree of family life by reason of being engaged, being little more than boyfriend and girlfriend, it would seem there was not any evidence before the First-tier Tribunal, which in any event found as a fact, that they had not enjoyed family life together in the UK. That specific finding was not challenged in the grounds.
5. More significantly, they married in the full knowledge of the appellant's immigration status, that he was not only an overstayer, but he was on the run from the authorities, having absconded from his reporting conditions. The relationship was entered into in circumstances of precariousness. It is that fact that prompted the respondent to also refuse the application for entry clearance under paragraph 320(11) on the basis that he contrived in a significant way to frustrate the intentions of the Rules by overstaying more than six years.
6. Now, the refusal on 320(11) is mandatory. However, paragraph 320 provides that where this paragraph applies, unless refusal would be contrary to the Human Rights Convention or the Refugee Convention, it will only be in exceptional circumstances that the public interest in maintaining refusal will be outweighed by compelling factors. There is no argument before me today in relation to this issue, but it seems to me that if the decision contravened human rights then that would supersede the reliance on paragraph 320(11).
7. However, the immigration history is highly relevant to the public interest considerations in respect of the only available ground of appeal, which is on human rights. The judge heard argument based on PS (India), where the Entry Clearance Officer had not recognised that the appellant in that case had voluntarily left the UK. The judge considered all of that from paragraph 16 onwards, distinguishing the case of PS and this appellant's case. The judge carefully considered the explanation of the appellant that he thought he no longer needed to report to the respondent but rejected that entirely, finding at paragraph 20, "the appellant absconded and failed to meet the temporary admission restriction that he was given relating to reporting and residence. I find that these are clear aggravating circumstances and that they were fully considered in the refusal letter," and he found the reliance on 320(11) to be appropriate.
8. The judge then very properly went on to consider the article 8 ECHR claim, following the Razgar stepped approach, and concluded that the crucial issue was that of the proportionality balancing exercise. He took into account the public interest pursuant to Section 117B of the 2002 Act to the effect that maintenance of effective immigration control is in the public interest, and at paragraph 23 considered whether there was any compelling circumstances outside the Rules which should lead to a different decision. There, the judge considered in summary form all the circumstances of this case, making the finding that I have mentioned before that they had not enjoyed family life together in the UK. I note a balanced approach with some findings in favour of the appellant, and some points against him.
9. At paragraph 24 the judge accepted that they would want to live in the UK. Although she came to the UK from Pakistan at the age of 26, the sponsor is a British citizen. Nevertheless, the judge found that she would still be sufficiently familiar with Pakistani culture so that she would be able to reintegrate there, even though she would prefer not to do so. Essentially, the judge was finding that family life with the sponsor could continue in Pakistan.
10. The submissions of Mr Tariq this morning addressed paragraph 25 of the impugned decision, where the judge took account of the fact of their son being a British citizen born in the UK. The judge there addressed the child's best interests. Although Section 55 is not mentioned, clearly the judge is referring to best interests, and concludes, unsurprisingly, that the best interests are to be with both parents. What is urged upon me is that the judge has not taken into account a British citizen child's right to live in the UK, the loss of any opportunities, and, quite rightly, that the child should not be blamed for the failings of the parent. However, the judge was not blaming the child for the failings of his father. Ms Everett conceded, or did not challenge, that there was a genuine and subsisting relationship with the child. Although the child was born in the UK, both mother and child have visited the appellant in Pakistan and there is no doubt that they maintain as best a relationship as they can do remotely between Pakistan and the UK.
11. However, clearly the judge was right in relation to the best interests of the child. The fact that the appellant left voluntarily, and the fact that the child is a British citizen with rights to live in the UK, is all taken into account by the judge in the proportionality balancing exercise. I am satisfied the judge has reached a conclusion on that balancing exercise in favour of the respondent, or against the appellant, which the judge was entitled to do so and for which cogent reasons were given. The authority of PS (India) is not an authority for the proposition that merely because there was a voluntarily departure the public interest element of his otherwise poor immigration history is to be entirely negated.
12. For his part, Mr Tariq points out that if the appellant had been in the UK then Section 117B(6) would apply so that the reasonableness test as to whether it would be reasonable to expect the child to leave the UK would result, it is suggested, in the appellant being allowed to remain. However, the father is not in the UK and that test does not apply at all on the facts of this case. The judge simply has to consider the proportionality balancing exercise, taking into account the sponsor's background in Pakistan and the child and the appellant's immigration history, as well as the significant fact of the child's British citizenship and all the rights and benefits that obviously entails. Looking at that all in the round, as I said, I am satisfied that is a conclusion that the judge was entitled to reach and for which cogent and lawful reasoning has been provided. That a different judge may have reached a different conclusion on these facts, does not demonstrate that there was any material error of law by this judge in making this decision.
13. In the circumstances, and for the reasons set out above, I find that the making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such as to require the decision to be set aside.
The decision of the First-tier Tribunal stands and the appeal remains dismissed.
No anonymity direction was requested and thus I do not make one.
Upper Tribunal Judge Pickup
Dated 3 September 2019
To the Respondent
I have dismissed the appeal and therefore there can be no fee award.
Upper Tribunal Judge Pickup
Dated 3 September 2019