FB (Pakistan) v SSHD

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Richards
Judgment Date26 November 2015
Neutral Citation[2015] EWCA Civ 1511
Docket NumberCase No: C5/2015/0472
Date26 November 2015

[2015] EWCA Civ 1511

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Richards

Case No: C5/2015/0472

Between:
FB (Pakistan)
Appellant
and
SSHD
Respondent

Mr Eric Fripp (instructed by Salam & Co Solicitors) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

Lord Justice Richards
1

This is an application for permission to appeal against a determination of the Upper Tribunal (the "UT"). The application was adjourned to an oral hearing by Vos LJ.

2

The applicant is a Pakistani national who applied on 7 July 2012 for indefinite leave to remain as the dependent relative of a person present and settled in the United Kingdom, namely her son. The application was refused by a decision dated 6 November 2013. It was held first that the applicant had failed to meet the requirements of paragraph 317 of the Immigration Rules; in particular she had not shown that she was dependent on her son or that she had no close relatives in her own country to whom she could turn for financial support. The application was then considered under the rules in paragraph 277C and Appendix FM as regards family life, and paragraphs 276ADE-276DH as regards private life, but it was found that various requirements of those provisions were not met. It was further decided that there were no sufficiently compelling or compassionate circumstances to justify the grant of leave to remain outside the rules.

3

On appeal to the First Tier Tribunal (the "FTT") the judge upheld the finding in relation to paragraph 317, making substantial criticisms of the financial evidence and not being satisfied that the applicant was wholly or mainly dependent upon her son. The judge also held that paragraph 276ADE was not met because of the length of time the applicant had been in the United Kingdom and the fact that, as he found, she still had ties with Pakistan. It appears that paragraph 276ADE was the only specific provision of the rules relating to family or private life that was raised on the appeal.

4

The judge went on to consider a submission that the appeal should succeed in any event under Article 8. He said that following the guidance in Gulshan [2013] UKUT 640 (IAC) there were no compelling circumstances that should lead to his considering the appeal under Article 8. But even if it did fall to be considered under Article 8, adopting the Razgar test, he found by reference to the reasons already given that the applicant's return to Pakistan would be proportionate.

5

On appeal to the Upper Tribunal there was a challenge to the findings that led the FTT to hold that paragraph 317 was not satisfied, but the Upper Tribunal Judge concluded that all the findings made by the FTT were open to it. I should mention that the grounds of appeal to this court include a challenge to the UT's decision on that point, effectively on the basis that there was no evidence to support the FTT's conclusion and/or that it was an irrational conclusion on the evidence and was inadequately reasoned. That point has not pursued before me by Mr Fripp, who appears today on behalf of the applicant. He was right not to pursue it. The point is hopeless. There is no prospect of establishing irrationality or other error of law on this aspect of the case and in any event the issue gets nowhere near to meeting the second appeal criteria.

6

The main legal argument before the UT, and the point that led Vos LJ to adjourn the application for permission to today's oral hearing, was a submission that the FTT had erred in considering the issue of family and private life predominantly under the new rules rather than separately under Article 8. The argument arose out of the fact that the new rules covering family and private life, including Appendix FM and paragraph 276 ADE, were introduced by a statement of changes (HC194) on 9 July 2012 but the transitional provisions in HC194 were to the effect that the old rules continued to apply to applications made before 9 July 2012. As I have said, the applicant's own application was made on 7 July 2012. It was held in Edgehill [2014] EWCA Civ 402...

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