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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-005688 |
|
First-tier Tribunal No: HU/61580/2023 LH/00775/2024 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 20 th of May 2025
Before
DEPUTY UPPER TRIBUNAL JUDGE BUTLER
Between
SABA GULA SHIRZAD
(NO ANONYMITY ORDER MADE)
Appellant
and
ENTRY CLEARANCE OFFICER
Respondent
Representation :
For the Appellant: Mr E. Nicholson, counsel
For the Respondent: Mr B. Hulme, Senior Home Office Presenting Officer
Heard at Field House on 13 May 2025
DECISION AND REASONS
1. The Appellant is a citizen of Afghanistan born on 1 August 1968. She applied for entry clearance to join her husband, Mr Khan, a British Citizen, in the UK. On 15 September 2023 that application was refused. While the Respondent accepted that the Appellant and Mr Khan were in a genuine and subsisting relationship, it was not accepted that the financial or language requirements under E-ECP.3.1-3.4 and E-ECP.4.1-4.2 were met. The Respondent also did not accept that there were any exceptional circumstances warranting the application being granted under GEN.3.1-3. That decision was appealed to the First-tier Tribunal which issued a decision which, I previously found, contained an error of law. This matter has come back before me for remaking.
2. For the reasons set out below, I conclude that there are exceptional circumstances within the meaning of the Rules and / or that the refusal of entry clearance is a disproportionate interference with the Appellant's family life within Article 8 ECHR and allow the appeal
Procedural history
3. The Appellant appealed to the First-tier Tribunal and her case was heard on 20 September 2024 by FTTJ K Swinnerton (' the Judge '). The Judge dismissed the appeal, making the following findings:
a. The Appellant and sponsor married on 3 July 2017 and have since maintained a long-distance relationship.
b. Mr Khan and his daughter Ms Khan were not reliable witnesses regarding the question of how many people live at their address.
c. The evidence regarding the sponsor's income was not credible.
i. Accordingly, the Appellant could not satisfy the eligibility financial requirement.
d. The Appellant was not exempt from the English language requirement as she lived in Pakistan and therefore was not prevented (as had been claimed) from learning English.
4. The Judge also dismissed the appeal under GEN.3.1-2 and / or outside the Rules, as follows:
" Having considered all of the circumstances in this case, I find that there are no exceptional circumstances in this case that would render refusal a breach of Article 8 of the ECHR resulting in unjustifiably harsh consequences for the Appellant and the sponsor and I find that the decision is proportionate."
5. Permission to appeal was granted on a limited basis by First-tier Tribunal Judge Mulready, as follows:
" As to Article 8, and unjustifiably harsh consequences, the judges reasoning is brief. It makes no reference to arguments about a hostile environment for Afghans in Pakistan; the circumstances of women in Afghanistan; nor that neither the Appellant nor her husband have permission to live in Pakistan. There is also no proportionality assessment, with the weighing of factors in the Appellant's favour against those not. This is an arguable error of law material to the outcome of the appeal. Permission is granted on this ground only."
6. I heard the Appellant's error of law appeal on 5 February 2025 and thereafter issued a decision finding an error of law in the Judge's decision. This matter has subsequently come back before me for a re-hearing.
The hearing
7. The papers before me comprised the 301-page composite error of law bundle (which includes the bundles from the First-tier Tribunal) and a 36-page supplementary bundle filed on 9 May 2025. I have had regard to the material in both bundles when reaching my conclusions.
8. At the outset of the hearing, I asked Mr Nicholson whether any application for anonymity was sought and he concerned that it was not, as it was considered that this was not needed.
9. The parties agreed that the extent of the remaking was limited to the question of exceptional circumstances under Appendix FM GEN 3.1-2 of the Rules and / or outside the Rules under Article 8 ECHR.
10. I noted that Mr Terrell had raised at the hearing of 5 February 2025 an apparent reference in the Respondent's records to the Appellant holding Pakistani citizenship. I asked Mr Hulme to confirm the Respondent's position on this point. Despite taking some time to examine his records, Mr Hulme was unable to express a view on the point. In closing, he did not submit that the Appellant held Pakistani citizenship and, as there is no evidence before me suggesting that this is the case, I will proceed on the basis that she does not hold such citizenship.
11. Mr Khan, the Appellant's sponsor, gave oral evidence in English. A full note of his evidence is contained in the Tribunal's record and I therefore do not intend to set his evidence out in full here. In summary, in answer to questions from Mr Nicholson, he stated that:
a. His son, Salman Khan, lives with him and he is his carer. Salman uses a wheelchair and cannot walk, stand up, or use the toilet unaided. He has regular treatment and Mr Khan cares for him daily.
b. He is a British citizen.
c. His wife had applied for a Pakistani visa but had been refused " so many times".
12. In answer to questions from Mr Hulme, Mr Khan stated that:
a. Salman and his other children had lived with him since 2011.
b. He stated that, when he had been in Pakistan, his other children had looked after Salman.
c. He agreed that his children could care for Salman in the event that he went to visit Pakistan or moved there.
d. He had last seen his wife in person in March 2023 at the Torkham border crossing between Pakistan and Afghanistan; she had tried to cross but been refused.
e. He has a house in Peshawar, Pakistan (which is the address included in the application for entry clearance). He previously lived with the Appellant there for six years. The application form was prepared by himself, his wife is illiterate.
f. The Appellant lives in Kabul.
g. He stated that the Pakistani government were trying to remove all Afghan nationals and his wife could not get a visa to join him in Pakistan.
h. He provides his wife with financial support.
13. In response to questions from me, Mr Khan stated that:
a. He holds Pakistani nationality.
b. He lived with the Appellant in Pakistan from July 2017 to 27 May 2023, clarifying that he was living in London but regularly visiting to see her in Peshawar.
14. I received closing submissions from both parties. Mr Hulme invited me to dismiss the appeal, relying on the refusal letter of 15 September 2023 and the Respondent's review. He argued that there were inconsistencies in the account given. In particular, he submitted that the Application of 10 August 2023 gave the Appellant's address as being in Peshawar, which the sponsor stated was his address, but at this time the Appellant was said to be in Afghanistan. He argued that the stamps in the Appellant's passport are unclear and relied upon the absence of further stamps, which the sponsor stated in his evidence were either on separate papers or in her renewed passport, neither of which are before the Tribunal. He also argued that there was very little if any evidence to place the Appellant in Afghanistan and the sponsor failed to give her address in Afghanistan. He disputed the background evidence about the Pakistani authorities' treatment of Afghans, stating that it was not clear that they refer to the wife of a Pakistani national. He also criticised the sponsor for not mentioning Salman in his earlier witness statement. He argued that his children could care for Salman if he moved to Pakistan. Alternatively, he submitted that the Appellant and Mr Khan could maintain their relationship remotely, as they had done for a long time.
15. I asked Mr Hulme what the Respondent's position would be if I were to find that the Appellant was living in Afghanistan and had no right to live in Pakistan. He argued that communication would still be possible between her and the sponsor, but accepted that he did not intend to " go behind the CPIN", which I understand to refer to the fact, accepted in the Respondent's Country Policy and Information Notes Fear of the Taliban and Humanitarian situation (both dated August 2024) that women, especially lone women, face extreme difficulties in Afghanistan, which I describe further below.
16. Mr Nicholson made submissions inviting me to allow the appeal. He argued that the Appellant is in Afghanistan and had been since her visa expired, noting that her last Pakistani visa expired in May 2023, which was consistent with the most recent exit stamp in her passport. He relief on the fact that she had only had a family visit visa, rather than any longer-term grant of leave in Pakistan. Mr Nicholson also argued that her subsequent applications for Pakistani visas had been refused and relied upon background material about the very large numbers of expulsions of Afghans from Pakistan, especially in the last year. He further argued that the Appellant and sponsor could not live in Pakistan due to the latter's caring obligations to Salman.
17. At the end of the hearing, I reserved my decision.
Determination
18. The burden of proof is on the Appellant and the standard of proof is the balance of probabilities. My starting point is the Judge's determination in the First-tier Tribunal. While I found an error of law in the Judge's analysis of the claim under GEN.3.1-2 and outside the Rules, permission was not granted to challenge to the Judge's factual findings, which I note as follows:
a. The sponsor's evidence about the people with whom he lives lacked credibility and he was not found to be a reliable witness [11].
b. Ms Khan, the sponsor's daughter, also gave evidence which lacked credibility about how many people reside at the sponsor's property and she was likewise found to not be a reliable witness [12].
c. The sponsor's claimed income was " in no way credible" [15].
19. The Judge also considered the Appellant's situation, and at [19] found that " the Appellant married the sponsor in 2017, moved to Pakistan and has resided in Pakistan for over 5 years at the time of the application. I am not prepared to accept, based upon the available evidence, that the Appellant is residing currently in Afghanistan".
20. While the Judge's findings are my starting point, I must determine the material facts on the (fuller) evidence before me at the date of the hearing.
21. In the refusal letter, the Respondent accepts that the Appellant and sponsor are in a genuine relationship but concludes that they do not otherwise meet the requirements of the Rules, nor that they have demonstrated exceptional circumstances giving rise to unjustifiable harsh consequences. There is accordingly no dispute over the genuineness of the Appellant's relationship with Mr Khan, nor did Mr Hulme raise any.
22. This appeal solely concerns the existence of exceptional circumstances for the purposes of GEN.3.2 and / or Article 8 outside the Rules. The Appellant is accepted to be in a genuine relationship with her husband, the sponsor.
23. The next question is whether the Appellant can enjoy family life with the sponsor in a third country. The Respondent rightly did not suggest that they could enjoy family life in person in Afghanistan. Mr Khan does not hold Afghan citizenship and I have no reason to believe he would be granted entry into Afghanistan, even if it were safe for him to do so. While Mr Hulme suggested that the couple could continue their relationship remotely from Afghanistan, I consider that this would be a disproportionate interference with the right to family life as:
a. The Immigration Rules are predicted on the assumption that a genuine couple who satisfy the Rules will enjoy family life together in person. I do not consider that a remote relationship is an adequate substitute for an in-person relationship to make such an outcome a proportionate interference with the Appellant's family life, especially in the context of a marital relationship. In-person contact allows for significantly greater enjoyment of family life, including physical intimacy, practical support, and companionship not available on a remote basis. It is well-established that Article 8 allows the family to " lead a normal family life": see Marckx v Belgium (1979-80) 2 EHRR 330, §31. Albeit in the context of parents and children, the European Court of Human Rights found in Olsson v Sweden (No 1) (1998) 26 EHRR CD203, at §59 that " the mutual enjoyment [...] of each other's company constitutes a fundamental element of family life". A normal family life based on enjoyment of each other's company, especially in the context of a marital relationship, cannot be based on purely remote means of communication.
b. I consider that there are substantial risks and / or exceptional circumstances facing the Appellant in Afghanistan as a lone woman. In light of Mr Hulme's concession noted above, I rely on §3.7.1 of the Fear of the Taliban CPIN, which states that: " Since August 2021, the Taliban have gradually restricted women's social and political rights and limited the areas of public life they can engage within. Women and girls are subject to widespread and systematic discrimination, which in general amounts to persecution. For example, the enforcement of the mahram (male chaperone) rule has restricted freedom of movement, whereas a series of edicts (and the way they are enforced) has prevented women from accessing education and employment, amongst other things. A dress code is also required, and although the extent to which this is enforced appears to be mixed, there are reports of women being harassed, assaulted, detained and ill-treated in custody due allegations of violating the dress code. The release of women and girls from detention is dependent on assurances from men in the family or community". I consider that these serious risks and hardships would interfere so substantially with the Appellant's ability to enjoy family life with her husband that it would constitute a disproportionate interference with her family life, even if it could otherwise be satisfactorily enjoyed on a remote basis.
24. I therefore conclude that the Appellant and Mr Khan could not enjoy family life on the basis of her (or them) residing in Afghanistan. The next question is whether they could enjoy family life in Pakistan. For the reasons which follow, I do not consider that they could do so. I have been provided with an Afghan passport in the name of the Appellant. No challenge has been made to its genuineness. It contains her date of birth as set out in the application form and her full name. I have also been provided with documents from the Pakistan's Ministry of the Interior, including the grant of a visa to the Appellant from 15 November 2022, which states that she is an Afghan national and includes her correct passport number. She would not require (nor be issued with) a Pakistani visa if she were a Pakistani national. I accept that she is an Afghan national. While the Respondent has previously indicated that she may hold Pakistani citizenship, as noted above there is no evidence of this and this was not the Respondent's position at the hearing before me. I therefore find that she is an Afghan citizen and is not a citizen of Pakistan.
25. It therefore follows that the Appellant may only enter and / or reside in Pakistan by way of a grant of a visa from the Pakistani authorities. I accept that she has previously been able to do so, for a lengthy period of six years (according to the evidence of Mr Khan, I note the Judge refers to over five years at §19). The only visa for her I have seen is a visa dated 15 November 2022 which is a " Family visit" visa allowing for " multiple entry - up to 1 year", albeit the visa expires on 14 May 2023, six months later. The duration of the visa was limited to 60 days. The Respondent did not challenge the genuineness of this document and I accept that the Appellant was granted such a visa. At this stage I note that such a visa would not allow for long-term residence in Pakistan, being merely limited to 60 days.
26. I was also provided with a screenshot from the website "visa.nadra.gov.pk", which I was informed was the Pakistani government's visa website. This refers to two visas being rejected, which are both referred to as " Family Visit" visas, with dates of 24 October 2023 and 10 June 2023. Mr Hulme put to Mr Khan in cross-examination that there was nothing in this screenshot suggesting that it was an application on behalf of the Appellant. Mr Khan stated that these were applications on her behalf. I note that his email address, as used in the entry clearance application, is at the head of the screenshot, suggesting that this is his account.
27. I have also reviewed the stamps in the Appellant's passport. To the best of my ability as they are not all clearly printed, it appears that the stamps are:
a. A Pakistani entry stamp for 24 July 2019.
b. A Pakistani exist stamp for 23 August 2019.
c. A Pakistani exit stamp for 28 March 2023.
d. A Pakistani exit stamp for 27 May 2023.
28. There is also a blurred stamp which Mr Khan stated was an Afghan exit stamp for 9 November 2022.
29. I consider that the stamps, especially that dated 27 May 2023, are consistent with the Appellant departing Pakistan shortly after her visa expired on 14 May 2023. There is no documentary or other evidence of her returning to Pakistan after that date; moreover, the 'Nadra' website evidence suggests that subsequent visas were rejected.
30. There was no challenge to the background evidence, set out in both bundles, which confirms that the Pakistani authorities have undertaken major expulsions of Afghans since the fall of Kabul to the Taliban, and that these efforts have intensified in the last year. While some of the evidence suggests that the focus has been on undocumented Afghans in Pakistan, the Telegraph article of 9 May 2025 refers to Afghans with and without documentation, and notes " different deadlines [i.e. to leave] apply to different categories". It also notes that 845,000 Afghans left Pakistan over the preceding 18 months. I accept that Pakistan has become and remains a highly hostile environment for Afghans and that even Afghans with documentation may be forced to return to Afghanistan.
31. I have weighed Mr Khan's evidence in the balance when assessing the Appellant's evidence in the round. I accept that the Judge concluded that Mr Khan was not a reliable witness on the matters relating to his living arrangements and financial affairs. These have not been of relevance to the rehearing before me and the Appellant has not been given permission to challenge those findings. I also note that the Judge rejected the Appellant's account of being in Afghanistan at the time of the hearing in the First-tier Tribunal, essentially on the basis of the address given in the entry clearance application form.
32. I had the opportunity to hear from Mr Khan. When considering Mr Khan's evidence, I have borne in mind what the Supreme Court in MA (Somalia) v SSHD [2010] UKSC 49 referred to as " the pull of the lie" (§31). I accept that a witness who has given unreliable evidence on one matter may not give accurate evidence on other matters and that dishonesty on one issue can indicate that a witness will lie about other matters. However, as the Supreme Court emphasised at §32, " the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence". I accept that there are some contradictions within Mr Khan's evidence, for instance regarding the numbers of individuals with whom he lives. However, I found his evidence on the remaining central issue in the case (the Appellant's status and entitlement to reside in Pakistan) to be credible and consistent with the objective documentary evidence. He was clear that the Appellant lives in Afghanistan. He described the last time he had seen her in person in March 2023 vividly, describing their separation at the Torkham border where he was waiting for her to cross from Afghanistan. I accept that he likely filled out the entry clearance application form as I accept Mr Khan's evidence that his wife is illiterate (given the well-recognised barriers which Afghan women face in accessing education and the lack of any dispute on this point from the Respondent). I also note that the 'nadra' website screenshot suggests that Mr Khan took responsibility for submitting his wife's visa applications to the Pakistani authorities (as his email address was used), so it is likely that he would have done the same for the entry clearance application. I accept as plausible that he would give the address in Peshawar where they lived together as their family home, having never lived in Afghanistan with her. For the avoidance of doubt, even if I had rejected Mr Khan's evidence in its entirety, I would still have reached the same outcome on the basis of the documentary evidence, which I consider sufficiently supports the Appellant's account on the central issues which I have to determine.
33. Assessing the evidence in the round, I conclude that the Appellant is an Afghan national currently living in Afghanistan. I accept that she did previously reside in Pakistan for a lengthy period, but I conclude that any longer-term residency she may have held was subsequently replaced by a short-term 60-day visit visa issued in November 2022, which has since expired. I accept that she made subsequent applications for Pakistani visas and has been refused. I do not consider it likely that she would be granted a visa ( a fortiori a long-term visa) in the current climate that would allow her to live in Pakistan. I therefore conclude that she could not live with the sponsor in Pakistan in the longer term. If I am wrong in that view and the Appellant is indeed currently in Pakistan, I conclude that there are sufficiently serious risks to Afghans in the current climate that she is more likely than not to be required to leave and / or unable to remain there in the longer term, with the effect that she could not enjoy family life in Pakistan with Mr Khan.
34. In light of my findings above, I have not needed to consider whether Mr Khan's role in caring for his son Salman would prevent him from relocating to Pakistan. In any event, his evidence was that his adult children had previously cared for Salman and could do so again if he went to Pakistan. I accept that evidence.
35. I therefore conclude that there are exceptional circumstances which render the refusal of entry clearance a breach of the Appellant's rights under Appendix FM of the Rules as the refusal results in justifiably harsh consequences for the Appellant, namely the indefinite separation from her husband and the requirement to remain in or return to Afghanistan as a lone woman. For the same reasons the Respondent's refusal is a disproportionate interference with her right to respect for family life under Article 8 ECHR.
Notice of Decision
The appeal is allowed.
Miranda Butler
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
14 May 2025