Upper Tribunal (Immigration and asylum chamber), 2024-06-14, UI-2022-006613

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2022-006613
First-tier Tribunal No: HU/55423/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 14th June 2024

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

sriwanthi mihika kaluarachchi
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms. K Renfrew, Counsel instructed by MTC Solicitors
For the Respondent: Ms. S. McKenzie Senior Presenting Officer

Heard at Field House on 12 March 2024

DECISION AND REASONS
Background and Legal Framework
1. By a decision promulgated on 25 January 2024, I found an error of law in the decision of First-tier Tribunal Judge J Simpson, dismissing the appellant’s appeal. I set aside Judge Simpson’s decision with preserved findings and gave directions for a hearing to remake the decision, which I now turn to do.
2. The factual background is set out in my error of law decision, and it is not necessary to repeat it in full here. In summary, the appellant is a national of Sri Lanka born on 25 April 1966. She entered the United Kingdom on 6 February 2009 as a student. In April 2016 the appellant began a relationship with Mr Kevin Parslow, a British citizen. At that time, the appellant had leave to remain in the United Kingdom as a Tier 2 (General) Migrant. The appellant and Mr Parslow began cohabiting in February 2018 at a time when the appellant had leave to remain under section 3C of the Immigration Act 1971. There is no dispute that the appellant’s leave to remain in the United Kingdom expired on 7 November 2018.
3. The appellant’s human rights claim is based, first, on her family life with her partner, and second, on her private life, within and outside of the Immigration Rules (“the Rules”).
4. The appellant is unable to succeed in her application to remain with her partner in the United Kingdom within the Rules due to her immigration status as an overstayer. Accordingly, she can only succeed within the Rules if she can meet paragraph EX.1. of Appendix FM to the Rules (“Paragraph EX.1.”). Paragraph EX.1.1. reads as far as relevant:
“EX.1. This paragraph applies if
(a) …
or
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, … and there are insurmountable obstacles to family life with that partner continuing outside the UK.
EX.2. For the purposes of paragraph EX.1.(b) ‘insurmountable obstacles’ means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”
5. At [30] of my error of law decision, I referred to the Supreme Court’s judgment in R (on the application of Agyarko and another) v Secretary of State for the Home Department [2017] UKSC 11. That judgment concerns the legal position for those such as the appellant and her partner who are in a genuine relationship but where the foreign national spouse has no lawful right to reside in the United Kingdom. What is said there confirms the test which is now applied by paragraph EX.1. Subsequently, the Court of Appeal has confirmed that the factors relevant to that test ought to be considered cumulatively - Lal v Secretary of State for the Home Department [2019] EWCA Civ 1925. Judge Simpson had found that Paragraph EX.1. was not met.
6. Judge Simpson dismissed the appellant’s appeal outside the Rules on the basis that, whilst she would satisfy the Rules if she made an application to join her partner from Sri Lanka, she should nonetheless be required to return even temporarily in order to regularise her stay in view of the weight to be given to the public interest. Judge Simpson sought to apply the reasoning in the case of Chikwamba v Secretary of State for the Home Department [2008] UKHL 40, and I explained in my error of law decision why the judge’s reasoning on that issue was flawed.
7. The case-law regarding Chikwamba has recently been clarified by the Court of Appeal in Alam and Rahman v Secretary of State for the Home Department [2023] EWCA Civ 30. Having reviewed the line of authorities following Chikwamba, the Court said this about the principle said to arise from that case:
“107.Those three points mean that Chikwamba does not state any general rule of law which would bind a court or tribunal now in its approach to all cases in which an applicant who has no right to be in the United Kingdom applies to stay here on the basis of his article 8 rights. In my judgment, Chikwamba decides that, on the facts of that appellant’s case, it was disproportionate for the Secretary of State to insist on her policy that an applicant should leave the United Kingdom and apply for entry clearance from Zimbabwe.
…
112. The two present appeals, subject to A1’s ground 2, are both cases in which neither appellant’s application could succeed under the Rules, to which courts must give great weight. The finding that there are no insurmountable obstacles to family life abroad is a further powerful factor militating against the article 8 claims, as is the finding that the relationships were formed when each appellant was in the United Kingdom unlawfully. The relevant tribunal in each case was obliged to take both those factors into account, entitled to decide that the public interest in immigration removal outweighed the appellants’ weak article 8 claims, and to hold that removal would therefore be proportionate. Neither the F-tT in A1’s case nor the UT in A2’s case erred in law in its approach to Chikwamba.
113. Moreover, the Secretary of State did not refuse leave in either case on the ground that the appellant should leave the United Kingdom and apply for entry clearance. I accept Mr Hansen’s submission, based on Hayat, that Chikwamba is only relevant if the Secretary of State refuses an application on the narrow procedural ground that the appellant should be required to apply for entry clearance from abroad. It does not apply here, because the Secretary of State did not so decide. Chikwamba is irrelevant to these appeals. I also reject the appellants’ submission that the UT determination in Younas was wrong; in Younas and in Thakral, the UT’s approach was correct.
114. Rhuppiah does not help the appellants. Even if there is some flexibility in section 117B and section 117B(4)(b), there is, on the findings which the tribunals were entitled to make, no exceptional positive feature of the claim of either appellant which could enable it to succeed. There is, moreover, in each case (and subject to ground 2 in A1’s case), a further negative factor, that is, that family life could continue abroad.”
8. In light of Alam, the issues for me now are simply whether the appellant succeeds within the Rules based on her family life (which depends on whether Paragraph EX.1. is met) and, if not, whether her removal will result in unjustifiably harsh consequences for her and/or her partner.
9. In terms of her private life under the Rules, the appellant is required to show that there are very significant obstacles to her integration on return to Sri Lanka. As stated by Sales LJ in Kamara [2016] EWCA Civ 813, the concept of integration
“is not confined to the mere ability to find a job or to sustain life while living in the other country … The idea of "integration" calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life.”
10. Whipple LJ in NC [2023] EWCA Civ 1379 reviewed Kamara and the subsequent decisions which build upon it, summarising their import thus:
“It is not in doubt, based on these authorities, that (i) the decision-maker (or tribunal on appeal) must reach a broad evaluative judgment on the paragraph 276ADE(1)(vi) question (see Kamara at [14]), (ii) that judgment must focus on the obstacles to integration and their significance to the appellant (see Parveen at [9]) and (iii) the test is not subjective, in the sense of being limited to the appellant's own perception of the obstacles to reintegration, but extends to all aspects of the appellant's likely situation on return including objective evidence, and requires consideration of any reasonable step that could be taken to avoid or mitigate the obstacles (see Lal at [36]-[37]).”
11. When considering the appellant’s case outside the Rules, I have to balance the interference with the right to respect for the family life and private life of the appellant and those others affected, against the public interest. When doing so, I also have to take into account...