Upper Tribunal (Immigration and asylum chamber), 2015-09-04, OA/20540/2012
| Jurisdiction | UK Non-devolved |
| Date | 04 September 2015 |
| Published date | 21 January 2016 |
| Hearing Date | 18 August 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | OA/20540/2012 |
Appeal Number: OA/20540/2012
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/20540/2012
THE IMMIGRATION ACTS
|
Heard at Birmingham Employment Centre |
Decision and Reasons Promulgated |
|
On 18 August 2015 |
On 04 September 2015 |
|
|
|
Before
DEPUTY UPPER TRIBUNAL JUDGE McCARTHY
Between
MUNEER KHALIL ABDULNOOR ALI
(anonymity order NOT CONTINUED)
Appellant
and
ENTRY CLEARANCE OFFICER, CAIRO
Respondent
Representation:
For the Appellant: Mr O Shoker, SH & Co Solicitors Birmingham
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer
DECISION AND REASONS
Preliminary
The First-tier Tribunal made an anonymity direction in relation to the appellants because of the nature of the case. There was no application to continue this direction or for me to make a similar order in the Upper Tribunal. Given the facts and legal issues in this appeal, I do not find any reason to make such an order of my own volition.
-
At the end of the hearing, I told those present what I had decided.
Decisions
-
First, I found a legal error in the way First-tier Tribunal Judge C Lloyd assessed proportionality in relation to article 8 of the human rights convention in her determination promulgated on 2 July 2013. This was because it was unclear if Judge Lloyd had taken all relevant factors into consideration. Most notably was her lack of reference to the best interests of the appellant’s British citizen children.
-
Second, I found the error to be one that required me to set aside her decision on that matter because it was possible that consideration of the best interests of the children and other relevant factors might result in a different outcome.
-
Third, after rehearing the appeal against the immigration decision of 20 September 2012 refusing to grant the appellant entry clearance to join his wife in the UK, I concluded that taking into account the best interests of the children and all other relevant factors, including the statutory public interest considerations, the original appeal still fell to be dismissed.
-
Although I announced my decisions at the end of the hearing, I was only able to give a brief indication of my reasons. I now give my reasons in full for the decisions I have made.
Background information
-
Before giving my full reasons, it is useful to set out the available information about the appellant’s family life. None of the following facts is disputed, any previous dispute having been resolved by Judge Lloyd.
-
The appellant applied for entry clearance on 29 June 2012. His application was considered under paragraph 281 of the immigration rules and not under appendix FM to the rules because that was introduced only in July 2012 and transitional provisions applied to pending applications such as the appellant’s.
-
In his visa application form the appellant provided the following details.
-
He married Risala Saleh Abdulla on 10 February 2006. Although his wife was born in Yemen and grew up there, she is a British citizen, as confirmed by her passport which was issued on 16 September 2007.
-
The couple lived together in Yemen from when they married until 4 December 2010 when Mrs Abdulla came to the UK. During that time, the couple had two children, Deyala (who was born on 15 March 2007) and Khalil (who was born on 4 March 2009). Both children are British citizens and came to the UK with their mother on 16 December 2010.
-
In the UK, Mrs Abdulla and the children lived with her parents. It was intended that the appellant would join his family in the same accommodation, which was adequate under the applicable immigration rules.
-
The couple maintained contacted through phone calls. The appellant received financial support each month from his wife.
-
The appellant did not apply for entry clearance until his wife started working and met the “adequate maintenance” test in the applicable immigration rules. He also had to wait until his wife had saved enough to pay his visa fee.
-
The appellant was unable to meet the English language requirement of the applicable immigration rules.
-
There was further evidence before Judge Lloyd, which she recorded in her determination.
-
When coming to the UK, Mrs Abdulla was pregnant. The couple’s third child, Kaleem, was born in the UK on 22 January 2011.
-
Mrs Abdulla was unable to work whilst pregnant and only started work in April 2011, initially on a part-time basis but her job became full-time in April 2012. Her income at the date of decision was adequate to meet the maintenance requirements.
-
Mrs Abdulla had not returned to Yemen because of having to look for work and because that country was no longer safe.
-
The FCO advice to British citizens living in Yemen, since March 2011, has been to leave because of safety concerns. Those who remain are advised to minimise travel within the country and to follow various precautions.
Error of law finding
Submissions
-
Mr Shoker relied on the grounds of application for permission to apply for judicial review, which are reproduced at pages 15 and 16 of the appellant’s latest bundle. They focus on the alleged failure of Judge Lloyd to assess the best interests of the children who are affected by the refusal to grant their father entry clearance.
-
Mr Shoker acknowledged that there was no challenge to Judge Lloyd’s findings that the appellant was unable to meet the immigration rules at the date of decision. His arguments focused on paragraphs 37 and 38 of her determination. Mr Shoker said that these were inadequate because the judge failed to deal with relevant issues, most notably the best interests of the children.
-
Mr Shoker relied on the determination of Deputy Upper Tribunal Judge French in an appeal which involved the husband of one of the appellant’s sister-in-law. Judge French found that it was not proportionate to refuse to admit that person because of the best interests of the sponsor and children. Mr Shoker argued that the facts were almost identical with this case and therefore Judge French’s decision should be followed.
-
Mr Mills reminded me that the judge had found that the appellant did not meet the language requirements of the immigration rules and the Court of Appeal R (Bibi & Anor) v SSHD [2013] EWCA Civ 322, [2013] ImmAR 1007 had confirmed that the language requirements of the immigration rules were objectively justified and therefore it was proportionate to require a person to meet them even if it meant keeping a family apart.
-
Mr Mills acknowledged that Judge Lloyd had not considered the best interests of the children but even if this was a legal error it could not be material since the appellant had provided no evidence about the best interests of his children.
-
As to whether it would be appropriate to follow Judge French’s decision, Mr Mills identified that the facts were not identical and that it was permissible for different judges to come to different conclusions even on similar facts.
Decision and reasons
-
There is no dispute that Judge Lloyd was correct to find that the appellant enjoyed family life with his wife and children. At paragraph 26 Judge Lloyd recorded her findings that the relationship between the appellant and his wife was subsisting because they were in regular contact and committed to each other and to their children. Judge Lloyd found the evidence also showed the couple intended to live together permanently as husband and wife.
-
At paragraph 33, Judge Lloyd reminded herself of the classic Razgar approach to article 8. In respect of the first two steps, Judge Lloyd concluded that family life existed between the appellant, his wife and their children but was not satisfied that the decision refusing entry clearance interfered with that family life since the appellant’s wife and children had “chosen to separate in December 2010 when the sponsor returned to the UK with the children.”
-
At paragraphs 36 and 27, Judge Lloyd considered the alternative in case she was wrong in concluding there was no interference. She found the immigration decision to be lawful because it was necessary in the interests of immigration control.
-
When assessing whether the decision was proportionate, Judge Lloyd reminded herself that it was important to facilitate family reunion where possible and that she should consider no only the rights of the appellant but also those of his wife and children, recognising they are British citizens. However, she concluded that in this case it was open to the family to resume family life together in Yemen as they had lived together there between 2006 and 2010. The fact the English language requirement was lawful meant this was a case where the need to maintain immigration control outweighed the personal choices of the...
To continue reading
Request your trial