Applicatin For Leave To Appeal By S.b.
| Jurisdiction | Scotland |
| Judge | Lady Smith |
| Neutral Citation | [2013] CSIH 89 |
| Date | 17 October 2013 |
| Court | Court of Session |
| Published date | 29 October 2013 |
| Docket Number | XA35/13 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2013] CSIH 89 | |
| XA35/13 OPINION OF THE COURT delivered by LADY SMITH in Application for leave to Appeal by SB Applicant; Against a decision of the Upper Tribunal (Asylum & Immigration Chamber) _______________ |
Alt: McIlvride; Office of the Advocate General
17 October 2013
Introduction
[1] The applicant seeks leave to appeal from a determination of the Upper Tribunal refusing her appeal against the decision of the respondent to curtail her leave to remain in the United Kingdom as the spouse of the man she married here in March 2009.
Background
[2] The applicant is a national of Russia. She has been resident in the UK continuously since 2005 in the circumstances which I will explain. The applicant's husband is a national of Pakistan. The reason for the respondent's decision was that it was discovered that the applicant's husband had obtained a UK passport by deception. It was a forged passport which he had bought for £12,000, in 2002, about a year after he had entered the country on the basis of a student visa. He had remained in the UK thereafter until 2009 on student visas and in possession of that forged passport. The forgery was not uncovered until after the applicant had married him.
Tribunal Proceedings
[3] Both the applicant and her husband appealed to the First- tier Tribunal. Their appeals were rejected. They sought leave to appeal to the Upper Tribunal. Upper Tribunal Judge Gleeson set aside the decision of the First-tier Tribunal and, in a document head "Decision and Direction", she observed:
"The analysis of the immigration and asylum element of the appeal is sound but Art 8 needs to be determined in relation to such private life as the appellants may have in the United Kingdom and whether the respondent's decision unlawfully failed to respect it."
That is, whilst the decision was set aside, the findings in fact by the First-tier Tribunal remained intact. They included that the applicant's husband was not believed when he said that he had become a Christian and that, whilst he entered the United Kingdom in 2001 on a student visa, his failure to complete any of the courses on which he had enrolled, called into question whether he had genuinely intended to undertake any of the courses, his stated intention of which had enabled him to renew his student visas and enabled him to remain in the UK.
[4] Upper Tribunal Judge Gleeson also issued a series of case management directions which included the following:
"The respondent do file and serve on the Tribunal any evidence she may have indicating that the principal appellant has the right to live in Russia or the second appellant is entitled to live in Pakistan".
[5] It is worth noting that the respondent was only directed to file any evidence that she already had that the applicant would, as a matter of fact, be entitled to live in Pakistan or that her husband would, likewise, be entitled to live in Russia. That is, she was not, for instance, directed to carry out investigations in relation to what would be the likely outcome of applications by those two individuals to enter those countries as the spouse of the other. That is not surprising. Upper Tribunal Judge Gleeson's reason for issuing that and other case management directions regarding the documents and skeleton argument was to enable her to "consider whether the appeal requires an oral hearing or can be determined on the documents which will then be before me". In the event, the respondent did not file any documents, an oral hearing was considered necessary and it was convened before two judges of the Upper Tribunal on 30 October 2012.
[6] The applicant and her husband relied on their written statements and the Upper Tribunal heard submissions. The Upper Tribunal records the applicant's account as set out in her statement, a document which has not been placed before this court.
[7] She apparently explained that she had arrived in the UK in 2004 with a working person's visa, returned to Russia before it expired and re-entered the UK with a valid visa in July 2005. She has been in employment here. She met her husband and married him on 27 March 2009. She was then granted a spousal visa which was withdrawn, in the circumstances to which I have already referred. In support of her article 8 claim, the applicant states that she has made great efforts to establish and develop her life in the UK and that it would not be right for that life to be shattered because of her husband's deception. There is no assertion in his statement that it would not be possible for her to enter Pakistan as the spouse of her husband. That matter is not touched upon at all. At paragraph 63, the Upper Tribunal states:
"The second appellant has a much better immigration history than her husband and it is clear from her unchallenged statement that she has integrated very well into the United Kingdom and enjoys a significant private life here as well as family life with her husband. Having said that, she had no expectation that she would be allowed to remain in the United Kingdom until she married someone who she was led to believe was a British citizen. Had she not met her husband then it seems fair to say that she may well not have established the degree of private life that she had in the United Kingdom and would in all probability have gone back to Russia."
The Upper Tribunal record what they took from the statement of the applicant's husband, a document which was also not before this court. It is said to have explained that he too had established and developed his life in the United Kingdom. He had been in employment, he had co-operated with the authorities when his false passport was discovered, pleading guilty when prosecuted and being sentenced to carry out 150 hours of community service which he states he performed. He had, he said, established friendships and enjoyed drinking alcohol socially with them, something he could not do in Pakistan. He had a close relationship with his wife. That statement is also said to explain that the applicant's husband believed that he could not return to Pakistan because he was married to a Russian girl who was also a Christian and white Caucasian. She had refused to wear a headscarf and would stand out in Pakistan. She likes to wear all sorts of clothes. She had said that she could not live in Pakistan. According to his statement, their lives would be at risk because of her status as a Russian, white Caucasian, Christian. He also said that it would be "difficult" for them to return to Russia because there it would be seen as "prejudicial" for his wife to be married to an Asian Muslim. She would be persecuted by people who were right wing in their views. In common with the applicant's statement, nowhere is it suggested that he could not enter Russia or that the applicant would not be able to enter Pakistan. On the contrary, his assertions regarding the risks to them both are plainly predicated on the basis that each would be able to enter the other's home country as the spouse of the other. No background material was referred to on behalf of either appellant in support of their assertion about the difficulty they would encounter in the other's country.
[8] Before the Upper Tribunal submissions for the respondent were made before those for the applicant. They included the following:
"40. of the Upper Tribunal's reasons. There was no evidence to say that the appellant would not be admitted to both Pakistan and Russia. There might be difficulties in adjustment but the Home Office always offered an assisted removal package."
The submissions to the applicant which followed those made on behalf of the respondent can be summarised as follows. First, she had established a full and valuable private life in the UK and had much to offer Edinburgh society. Secondly, she would suffer difficulties if forced to live in Pakistan; it would be unreasonable to expect her to go there to live with her husband. Thirdly, it would not be reasonable for the applicant's husband to be expected to live in Russia. The reasons for those stated difficulties were those to which I have already referred. Nothing was said in the submission for the applicants to contradict the respondent's submission regarding the absence of any evidence to suggest that the applicant would not be able to enter Pakistan to live there or that her husband would not be able to enter Russia to live there. No submission was made to the Upper Tribunal to the effect that there was an onus on the respondent to establish that the applicant would be able to enter Pakistan as the spouse of her husband or that her husband would be able to enter Russia as her spouse. No submission was made to the effect that the respondent had been positively bound by Upper Tribunal Judge Gleeson's directions to produce evidence about the ability of the appellant to enter each other's country or as to the consequences of such evidence not being forthcoming.
[9] Overall, the case presented on behalf of the applicant to the Upper Tribunal was predicated on the basis that she would be able to enter Pakistan and her husband would be able to enter Russia. It was not entry that was said to be the problem; it was what might happen to each of them once resident in the other's country. Put broadly, the case for both applicants before the Upper Tribunal...
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