TZ (Pakistan) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Sir Ernest Ryder,Lord Justice Longmore |
| Judgment Date | 17 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1109 |
| Docket Number | Case No: C7/2015/3418 & C5/2015/4163 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 May 2018 |
[2018] EWCA Civ 1109
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Murray IA/15935/2014
Deputy Upper Tribunal Judge Farrelly IA/24336/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
THE SENIOR PRESIDENT OF TRIBUNALS
and
Lord Justice Moylan
Case No: C7/2015/3418 & C5/2015/4163
Mr Parminder Saini (instructed by MTG Solicitors) for TZ
Mr Parminder Saini & Mr Baldip Singh Aulak (instructed by MTG Solicitors) for PG
Mr Neil Sheldon (instructed by Government Legal Department) for The Secretary of State for the Home Office
Hearing date: 17 January 2018
Judgment Approved
Sir Ernest Ryder, Senior President:
These appeals are both concerned with applications for leave to remain made by non-settled migrants who rely on relationships they each established with a British citizen at a time when their immigration status was precarious. Both appellants sought to challenge removal to their home countries by reliance on article 8 ECHR. In the circumstance that the requirements of the Immigration Rules are not met by such an applicant, the Secretary of State will consider granting leave to remain outside the Rules where exceptional circumstances apply which are defined by her as circumstances in which refusal would result in unjustifiably harsh consequences for the individual concerned.
Both appeals were listed to be heard after the recent decision of the Supreme Court in R (on the application of Agyarko) and Anor v Secretary of State for the Home Department [2017] UKSC 11. In Agyarko the Supreme Court made clear that the scheme established by the Rules and the Secretary of State's Instructions are lawful and compatible with article 8. Accordingly, the Secretary of State is entitled to apply a test of insurmountable obstacles to the relocation of the family within the Rules and a test of exceptional circumstances as described outside the Rules.
TZ (Pakistan)
TZ is a national of Pakistan born 7 February 1988. He entered the UK on 12 January 2008 as a Tier 4 (General) student with leave to remain until 31 October 2008. This was later extended to 30 November 2012.
In order to support his studies, TZ commenced part-time work in McDonalds in October 2008. There he met his partner, Ms AS, who started work in December 2010. They commenced a relationship in February 2013, and moved in together in September 2013.
Upon completion of his accounting and finance degree at the University of Hertfordshire in June 2011, McDonalds offered TZ a managerial position. He applied for a Post-Study work visa from 23 January 2012 which was granted to expire on 23 January 2014. He then applied for a Tier 2 (General) visa, which was refused on 23 March 2014. The reason given for the refusal was that the certificate of sponsorship supplied by McDonalds contained an inaccurate occupation code and the decision maker was unable to award him any points under ‘sponsorship’. As such he failed to score at least 50 points in the ‘Attributes’ section of Appendix A to the Immigration Rules for Tier 2 (General) applicants.
On appeal to the First-tier Tribunal on 9 October 2014, TZ conceded that the wrong occupation code had been provided and informed the tribunal that he was in the process of submitting a fresh application with the correct code. Notwithstanding that, he sought to challenge the Secretary of State's decision by reliance upon an article 8 ECHR claim.
TZ gave evidence asserting that his partner would be unable to support herself financially if he were to be removed and said that she would not be accepted into the community in Pakistan were she to join him.
In the decision of the FtT promulgated on 28 October 2014 the judge held that the failure to provide the correct occupation code was fatal to an appeal under the Rules. He dismissed TZ's article 8 claim ‘within the rules’ by reference to paragraph 276ADE and Appendix FM of the Immigration Rules, concluding that TZ had not established insurmountable obstacles to the continuation of family life outside the UK. It is not at all clear from the FtT's judgment that the judge properly considered TZ's article 8 claim outside the rules, but if he did, he concluded without any additional reasoning that the interference with TZ's article 8 rights was proportionate having regard to the legitimate public aim of maintaining effective immigration control and in consequence he dismissed TZ's claim.
Permission to appeal to the UT was granted on 24 April 2015. On 9 July 2015 the UT held that the FtT had made errors of law in failing to give reasons to explain why the requirements of paragraph 276ADE and Appendix FM of the Rules were not met and in failing to consider the implications of the decisions in Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 and MA (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 953, when considering insurmountable obstacles to family life.
In a Decision and Reasons promulgated on 24 July 2015 the UT concluded that, while the FtT had been in error in not explaining why the terms of Appendix FM and paragraph 276ADE of the Rules were not satisfied, these did not amount to material errors of law. This is because a proper application of the Immigration Rules would have led to the same decision. In short, the UT held that exceptional circumstances would have to exist for the conclusion of an FtT to be any different. The judge could identify no such circumstances. The essence of that decision, although not expressed in this way in the reasons given, is that had a careful examination of the facts been undertaken, permission to appeal to the UT should not have been granted in the first place.
PG (India)
PG is a national of India, born on 10 June 1989. She arrived in the United Kingdom on 19 July 2012 as a visitor with entry clearance to remain until 21 December 2012 and re-entered on 20 September 2013 again as a visitor. On 2 October 2013 she met Mr Nayee, a British national of Indian heritage. They married on 8 November 2013. PG's visa was due to expire on 31 January 2014, and so she applied for further leave to remain as the spouse of a British national on 28 January 2014. At the time of the UT hearing PG was pregnant and she has since given birth to the couple's first child.
In a letter dated 30 May 2014 the Secretary of State refused to vary PG's leave to remain. Her reasons for this were threefold:
a. PG failed to meet the requirements of paragraph (iii) of R-LTRP 1.1(d) of the Rules which requires that applicants seeking leave under the partner route satisfy paragraph EX.1 of Appendix FM. In other words, PG did not have a genuine and subsisting parental relationship with a child who is under the age of 18 in the United Kingdom and who is a British citizen or has lived in the United Kingdom continuously for at least 7 years immediately predating the date of the application. Nor did she provide evidence for the purposes of EX.1 to suggest that there were insurmountable obstacles preventing her or her partner from continuing their relationship i.e. their family life outside the UK;
b. PG failed to meet the requirements of paragraph 276ADE(1) of the Rules in that being an applicant who was over 18 and had lived in the UK continuously for less than 20 years, she had not demonstrated very significant obstacles to her integration into India if she were required to leave the UK; and
c. Having regard to article 8 considerations outside the Rules, there were no exceptional circumstances to grant leave to remain.
On appeal to the FtT PG and her husband gave evidence to the effect that PG is the sole carer of her mother-in-law and has been ever since her marriage. They stated that PG's mother-in-law suffers from a range of medical complaints which render her unable to do essential household activities or feed herself properly, meaning that she needs someone with her at all times. PG's husband gave evidence demonstrating his lack of links to India, its language, culture and community and also his commitment to stay in the UK to support his mother who is too unwell to be relocated.
The FtT was satisfied that PG faced insurmountable obstacles to her family life with her husband continuing outside of the United Kingdom for the purposes of paragraph EX.1 (b). Having come to that conclusion the FtT did not need to consider Paragraph 276ADE(1) or article 8 outside of the Rules. The determination and reasons of the FtT to this effect were promulgated on 17 February 2015.
The Secretary of State was granted permission to appeal to the UT on 16 April 2015. That appeal was heard on 28 August 2015 and the UT's decision was promulgated on 22 September 2015. The UT found that the FtT had materially erred in law in allowing the appeal on the basis that paragraph EX.1 (b) applied, when in reality PG could not satisfy the provisions of the Immigration Rules because of her precarious immigration status. As such she could only rely on an article 8 claim outside the rules.
The UT re-made the decision in favour of the Secretary of State and in doing so placed considerable weight on the fact that PG and her husband were aware of the precarious nature of her immigration status when they decided to marry. The UT also took into account the fact that care packages could be provided to PG's mother-in-law and that PG's sister-in-law could take over some of her mother-in-law's care should PG's husband wish to join her in India. The UT considered family life in its broadest context including submissions made about the best interests of the...
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