Gulshan (Article 8 - New Rules - Correct Approach) [Asylum and Immigration Tribunal]

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeMr Justice Cranston,Taylor,Taylor UTJ,Cranston J
Judgment Date17 December 2013
Neutral Citation[2013] UKUT 640 (IAC)
Date17 December 2013

[2013] UKUT 640 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr Justice Cranston

UPPER TRIBUNAL JUDGE Taylor

Between
The Secretary of State for the Home Department
Appellant
and
Gulshan
Respondent
Representation:

For the Appellant: Ms H Horsley, Senior Home Office Presenting Officer

For the Respondent: Ms G Peterson, Counsel, instructed by VMD Solicitors

Gulshan (Article 8 — new Rules — correct approach)

On the current state of the authorities:

  • (a) the maintenance requirements of E-LTRP.3.1–3.2 stand, although Blake J in R (on the application of MM) v Secretary of State for the Home Department [2013] EWHC 1900 (Admin) said that they could constitute an unjustified and disproportionate interference with the ability of spouses to live together; he suggested that an appropriate figure may be around £13,400, and highlighted the position of young people and low wage earners caught by the higher figure in the rules;

  • (b) after applying the requirements of the Rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them: R (on the application of) Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin);

  • (c) the term “insurmountable obstacles” in provisions such as Section EX.1 are not obstacles which are impossible to surmount: MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC); Izuazu (Article 8 – new rules) [2013] UKUT 00045 (IAC); they concern the practical possibilities of relocation. In the absence of such insurmountable obstacles, it is necessary to show other non-standard and particular features demonstrating that removal will be unjustifiably harsh: Nagre.

The Secretary of State addressed the Article 8 family aspects of the respondent's position through the Rules, in particular EX1, and the private life aspects through paragraph 276ADE. The judge should have done likewise, also paying attention to the Guidance. Thus the judge should have considered the Secretary of State's conclusion under EX.1 that there were no insurmountable obstacles preventing the continuation of the family life outside the UK. Only if there were arguably good grounds for granting leave to remain outside the rules was it necessary for him for Article 8 purposes to go on to consider whether there were compelling circumstances not sufficiently recognised under the Rules.

DETERMINATION AND REASONS
Introduction
1

This is an appeal by the Secretary of State against a decision of Judge SJ Pacey, promulgated on 12 August 2013, which allowed the respondent's appeal and held that it was disproportionate and unlawful under Article 8 of the European Convention on Human Rights to remove her to Pakistan.

Background
2

Mrs Gulshan, the respondent to this appeal, was born in 1953 in Karachi, Pakistan and married her husband (Noor Ali Nazar Ali, the sponsor) in 1975. They have two daughters, who live with their husbands in Pakistan. There is a son, nearly 30 years old, who apparently has been in this country for some 8 years. It seems that the husband, now aged 67, came to the United Kingdom at some point in the early 1990s. Since details of his immigration status were unclear from the papers we asked Ms Peterson, representing the respondent, to take instructions. The husband was present in court. It seems that the husband had entered the country as a visitor but had overstayed. In late 2002 he had been granted indefinite leave to remain and in 2006 became a British citizen. On instructions Ms Peterson informed us that he started to work in 2003. He has now retired.

3

The respondent does not work and has no income. The husband is now in receipt of a state pension and with pension credit that totals £7,420.40 per annum. He seems to have received tax credits since 2006. He rents a council property in Hackney, London. He pays £67.08 rent per month, but receives housing benefit and council tax benefit. The respondent has had an account with the Pak Fidai General Co-Operative Society Ltd for 3 years. There are savings of £28,996.70 in that account.

4

The respondent has visited her husband in the United Kingdom a large number of times – we were told on some 19 occasions – on visitors' visas. Her application for leave to remain in January 2006 was refused. In 2007 she was granted multi visit entry clearance until 7 September 2012. Since arriving on her last visit in March 2012, she has remained here with her husband. On 5 September 2012 she made an application for leave to remain as a spouse of a person present and settled here.

5

On 5 March 2013 the Secretary of State refused the respondent's application. The refusal letter gave a number of reasons. First, the respondent did not have the requisite immigration status. Second, she did not meet the minimum income requirements of paragraph E-LTRP. 3.2 of Appendix FM of the Immigration Rules, since she had not provided wage slips covering the requisite period. It was said, thirdly, that she had failed to provide an English language certificate. It is now accepted that she has good English. Referring to her family life under Article 8 ECHR the letter invoked the requirements of Section EX: Exception of Appendix FM of the Immigration Rules and concluded that the respondent had not demonstrated any insurmountable obstacles which would prevent her from continuing her family life outside the United Kingdom. The letter finally considered whether removal would breach her rights to private life under Article 8 of ECHR. By reference to paragraph 276ADE of the Immigration Rules the letter said that the respondent could not show that she had no social or cultural ties with her home country.

The judge's decision
6

The respondent appealed on various grounds. She was married to a British citizen and the Secretary of State had not considered the evidence submitted in support of her application. Nor had the Secretary of State addressed the long relationship with her husband in the United Kingdom. The Secretary of State “has not considered the [respondent's] rights under Article 8 of ECHR as a wife of her husband who is settled in the United Kingdom”.

7

Before Judge Pacey counsel for the respondent conceded that she could not succeed under the Immigration Rules. The judge accepted that that concession was rightly made. The respondent's counsel invoked the then recent decision of R (on the application of MM) v Secretary of State for the Home Department [2013] EWHC 1900 (Admin) for the contention that the interference with the respondent's family life under Article 8 was disproportionate. The respondent's evidence before the Tribunal was that her husband was 67 years old and she herself was now in her old age. She could no longer continue as a frequent traveller to the United Kingdom because of her age. She needed to be with her husband to provide care and emotional support. There was medical evidence relating to the husband before the Tribunal. The judge concluded that it did not indicate that the husband had any material care needs. In cross-examination the respondent accepted that she had not applied earlier to remain as a spouse because her two daughters were then unmarried in Pakistan. She told the judge that since her husband has been here for over 20 years he could not live in Pakistan anymore.

8

In her reasons the judge said that she readily accepted that both the respondent and her husband were no longer young. Perfectly naturally and reasonably they wished to be together. The judge also accepted that it would cause considerable cost and inconvenience for the respondent to travel to and from Pakistan to see him. Referring to MM the judge stated that the central question was whether the minimum income provisions in the Immigration Rules were a disproportionate interference with the right to respect for family life. Among reasons for refusal was the minimum income requirement. The findings in MM relating to the financial criteria had an inescapable relevance to the circumstances of the appeal. The presenting officer had submitted that the proper course of action would be for the respondent to have returned to Pakistan and make the application for entry clearance there, but “to require the appellant to return and make an application … would, in my judgment, be disproportionate and bearing in mind her age and the inconvenience and cost involved”. On the basis of her consideration of these various factors the judge concluded that the decision under appeal was disproportionate and unlawful under Article 8. On that basis she dismissed the appeal under the Immigration Rules but allowed it on human rights grounds.

The law
(a) The July 2012 Immigration Rules
9

There were major changes in July 2012 in the Immigration Rules covering applications for entry clearance and leave to remain as a family member. Appendix FM is the route for those seeking to enter or remain in the UK on the basis of their family life with a person who is a British citizen, is settled in the UK, or is in the UK with limited leave as a refugee or person granted humanitarian protection. The purpose is made plain at the outset (GEN.1.1).

“It sets out the requirements to be met and, in considering applications under this route, it reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others. It also takes into account the need to safeguard and promote the welfare of children in the UK.”

10

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