Upper Tribunal (Immigration and asylum chamber), 2019-03-13, HU/07400/2018

JurisdictionUK Non-devolved
Date13 March 2019
Published date25 April 2019
Hearing Date26 February 2019
CourtUpper Tribunal (Immigration and Asylum Chamber)
StatusUnreported
Appeal NumberHU/07400/2018

Appeal Number: HU/07400/2018


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/07400/2018


THE IMMIGRATION ACTS


Heard at Field House

Decision & Reasons Promulgated

On 26 February 2019

On 13 March 2019




Before


DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN


Between


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant


and


Edwin Masunda

(anonymity direction NOt MADE)

Respondent


Representation:


For the Appellant: Mr. C. Avery, Senior Home Office Presenting Officer

For the Respondent: Mr. P. Haywood, Counsel instructed by Cahill De Fonseka Solicitors



DECISION AND REASONS


  1. In a decision promulgated on 29 January 2019, I set aside the decision of the First-tier Tribunal to be remade. As in that decision, I refer to Mr. Masunda as the Appellant, and to the Secretary of State as the Respondent, reflecting their positions as they were before the First-tier Tribunal.


The hearing


  1. I heard oral evidence from the Appellant and from his wife, the Sponsor, Mrs. Kirsty Masunda. Both representatives made oral submissions. I reserved my decision.


  1. I have taken into account the documents in the Respondent’s bundle (92 pages), the Appellant’s bundle (158 pages), and the skeleton argument provided by Mr. Haywood. I was provided with copies of the cases of Mhlanga [2012] EWHC 1587 (Admin), JM (Zimbabwe) [2017] EWCA Civ 1669, and Agyarko [2017] UKSC 11.


Burden of proof


  1. The burden of proof lies on the Appellant to show that, at the date of the hearing, the Respondent’s decision is a breach of his rights, and/or those of the Sponsor, to a family and private life under Article 8 ECHR. The standard of proof is the balance of probabilities.


Findings and conclusions


  1. I make two observations at the outset. First, an additional issue was raised by the Appellant in the Upper Tribunal, which he had not raised in the First-tier Tribunal, regarding his ability to return to Zimbabwe. It was not argued before the First-tier Tribunal that the Appellant would not be able to return to Zimbabwe due to the policy of the Zimbabwean government in respect of return of their nationals, with reference to the cases of Mhlanga and JM (Zimbabwe).


  1. Secondly, Mr. Avery made no reference to, or placed any reliance on, the Appellant’s criminal record. This was not an issue in the reasons for refusal letter, as the convictions occurred after the decision. I find that it is significant that the Respondent is placing no weight on this element.


  1. I found the Appellant and Sponsor to be honest and credible witnesses. They were not cross-examined, but they answered all questions put to them by Mr. Haywood, and were not evasive. Their evidence was consistent, and consistent with the documentary evidence. In particular, the Appellant has been open about his criminal conviction. I find that I can rely on the evidence of the Appellant and Sponsor.


Immigration rules


  1. The Respondent refused the Appellant’s application as a partner as he did not meet the eligibility status requirements or the English language requirements. The Respondent was not satisfied that the Appellant met the requirements of paragraph EX.1(b) as there was no evidence that there were any insurmountable obstacles to family life continuing in Zimbabwe.


  1. It was not submitted that the Appellant could meet either the eligibility status requirement, or the English language requirement. In order to meet the requirements of paragraph EX.1(b), the Appellant must show that he has a genuine and subsisting relationship with the Sponsor, and that there are insurmountable obstacles to family life with the Sponsor continuing outside the United Kingdom.


  1. Paragraph EX.2 states:


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.”


  1. In respect of paragraph EX.1(b), it was submitted by Mr. Avery that there had been no change since the date of the First-tier Tribunal’s decision. The Judge had found that there were no insurmountable obstacles to family life continuing outside the United Kingdom, and there had been no change to this position. However, as I have set out above, no reliance had been placed on the cases of Mhlanga or JM (Zimbabwe) at the hearing in the First-tier Tribunal, and therefore the Judge did not take this issue into account when considering whether there were insurmountable obstacles to family life continuing in Zimbabwe.


  1. I have carefully considered these cases. At [11] of JM (Zimbabwe) it states:


It has been the settled policy of the Zimbabwean government since 2002 that it will not grant ETDs to its nationals who do not wish to return.”


The case went on to consider whether the Respondent could lawfully require an individual to tell Zimbabwean officials that he was willing to return voluntarily when he was not, and held that the Respondent could not do so.


  1. The case of Mhlanga states at [19]:


At para. 8 of the witness statement [filed on behalf of the Secretary of State] it is said that the Secretary of State is not presently in a position to remove persons to Zimbabwe who do not have a valid passport without their consent. This is because the Zimbabwean authorities will not agree to issue emergency travel documents to persons returning involuntarily.”


  1. In relation to the Appellant’s reliance on JM (Zimababwe), Mr. Avery submitted that he was not sure that it was relevant to the test set out within EX.1(b) which was concerned with the integration into society once in the country. First, EX.1(b) is not so limited, and further I find that an appellant’s inability to enter his country of origin cannot be considered other than an obstacle to family life continuing there. Mr. Avery did not submit that the situation was any different now to that outlined in Mhlanga.


  1. The Appellant gave evidence that he did not wish to return to Zimbabwe. He said that he had nowhere to stay, had been away for a long time, and would not know what to do on his return. He said that his life was here consisting of the Sponsor and her extended family, as well as his own extended family members. I find that the Appellant lives with his older sister and her two children.


  1. It was submitted by Mr. Haywood that the issue of voluntary returns to Zimbabwe had not gone away. The Appellant’s passport had expired, and he would therefore have to be taken to the Zimbabwean Embassy in order to obtain an emergency travel document (“ETD”). He would then have to make a declaration that he was willing to return to Zimbabwe, which is he not. The Respondent would have to compel him to sign a false declaration so as to be able to effect his removal. He submitted that, following JM (Zimbabwe), the Respondent had no statutory power to do this.


  1. Mr. Haywood submitted, which I find must be the case, that the Respondent had been aware of this policy throughout the period of this application and appeal. This was clear from the cases of Mhlanga and JM (Zimbabwe). He submitted that the problem was the attitude of the Zimbabwean authorities, not the Appellant. For most places, if an individual did not want to return, this did not cause a problem. An ETD would be issued all the same, irrespective of an individual’s wishes. This was not the case with Zimbabwe, and the Respondent could not expect, or force, the Appellant to lie to the authorities. He submitted that this was a significant point which went to the issue of whether the Appellant could conduct married life outside the United Kingdom.


  1. I find that this is a significant issue which goes directly to whether or not the Appellant can conduct married life outside the United Kingdom. As I set out above, Mr. Avery did not challenge the situation as set out in Mhlanga and JM (Zimbabwe), and while I accept that the skeleton argument was not served until the morning of the hearing, he did not seek an adjournment. I find that it is significant that the Respondent did not challenge this position, nor apply for an adjournment.


  1. It is not surprising that the Appellant does not want to return to Zimbabwe, and in this respect he is no different from many other appellants who do not wish to return to their home countries. In most cases, appellants’ wishes are irrelevant, but this is not the case with those from Zimbabwe, and this is something which the Respondent has been aware of for many years. In JM (Zimbabwe) it states that this has been the policy since 2002. I find that there is no way in which the Respondent can compel the Appellant to lie and state to the Zimbabwean authorities that he is willing to return.


  1. I therefore find that the Appellant has shown that the policy of the Zimbabwean authorities is an insurmountable obstacle to family life continuing in Zimbabwe. He has shown that he meets the...

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