Upper Tribunal (Immigration and asylum chamber), 2024-08-28, UI-2023-002924

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-002924

First-tier Tribunal No: HU/58342/2022
LH/00371/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 28 August 2024

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

MARIYAM MOHAMED SULEIMAN ABULGASEM
(No anonymity order made)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Holmes of Counsel by CVP
For the Respondent: Mr Lindsay a Senior Home Office Presenting Officer by CVP

Heard at Phoenix House (Bradford) on 31 July 2024


DECISION AND REASONS
1. The Appellant was born on 1 January 1994. She is a citizen of Sudan. She appealed against the decision of the Respondent dated 20 December 2022, refusing her entry clearance under the refugee family reunion rules. She appeals against the decision of First-tier Tribunal Judge Curtis, promulgated on 22 May 2023, dismissing the appeal.
The First-tier Tribunal decision of 22 May 2023
2. The Judge found as fact that there is a family life between the Appellant and her husband. Being satisfied that the refusal to grant entry clearance amounted to an interference with that Article 8(1) right he proceeded to consider proportionality. He properly weighed in the balance the public interest considerations set out in Part 5A of the Nationality Immigration and Asylum Act 2002. This included, under the heading of s117B(1), the fact that the Appellant had been found to have relied on false documents in her previous application. Although he accepted that the Appellant and Sponsor are in a genuine relationship, and that the effect of the decision was to impose a ten year ban on entry, the Judge did not accept that this in itself rendered the decision disproportionate. Nor was he satisfied that anything turned on the difference in treatment between the Appellant (the spouse of a refugee seeking family reunion) and spousal applicants under Appendix FM, who would not, in the same circumstances, be subject to an automatic ban:
“61. As a matter of general principle, then, it does appear that applicants who have recourse to Appendix FM are in a more favourable position to those who do not, and who have to apply under Appendix Family Reunion (Protection) (or, under the now-deleted para. 352A – as this Appellant did). They are in a more favourable position because they are not automatically subject to an automatic ban on re-entry. That said, there is no reason to suppose that this is anything other than a distinction deliberately brought about by the Rules’ draftsperson. That is, it seems to me that the Rules (which are effectively the Secretary of State for the Home Department’s declaration of where the balance lies between the competing private and public interests) have been deliberately drafted so as to treat those who submit false documents in an application for family reunion with a refugee differently from those that submit such documents in an application under Appendix FM by imposing on the former a (10-year) entry ban but imposing no such entry ban on the latter.”
Permission to appeal
3. Permission was granted for the Appellant to argue that the decision below is flawed for perversity, a failure to take material matters into account, and taking irrelevant factors into account.
4. In essence, Ground 1 is that the difference in treatment between the two classes of Spouse applicant, namely those of refugees and those who are not refuges, is either directly or indirectly discriminatory, and offends Article 14 of the European Convention on Human Rights (ECHR).
5. Ground 2 is that there are insurmountable obstacles to family life continuing abroad as the Sponsor is a refugee. This was not adequately considered in the proportionality balancing exercise.
6. Ground 3 is that the Sponsor’s status as a refugee in the United Kingdom is a material matter of particular significance to any wider article 8 analysis and it is perverse that re-entry bans apply to family reunion provisions when refugees are forced to flee their country of origin and family reunion is a key aspect of the Refugee Convention.
7. Ground 4 is that the Judge erred in relation to the legislative history of the general grounds of refusal.
8. I will not repeat each submissions raised through the helpful skeleton arguments, many of which are repetitious in different forms, but will deal with them in the discussion.
The First-tier Tribunal decision of 22 May 2023
9. Judge Curtis made the following findings relevant to this hearing:
“Article 8 Outside the Rules
…49. Turning to necessity and proportionality… [t]he maintenance of effective immigration controls is in the public...