Upper Tribunal (Immigration and asylum chamber), 2013-10-04, AA/08375/2012
| Jurisdiction | UK Non-devolved |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 04 October 2013 |
| Published date | 18 November 2013 |
| Status | Unreported |
| Appeal Number | AA/08375/2012 |
Appeal Number: AA/08375/2012
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08375/2012
THE IMMIGRATION ACTS
|
Heard at Birmingham |
Determination Sent |
|
on 16th September 2013 |
on 4th October 2013 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
NEHARI MUHAMMED OMAR
(Anonymity order not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Saeed of Aman Solicitors Advocates
For the Respondent: Mr Hussain – Home Office Presenting Officer.
DETERMINATION AND REASONS
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The Appellant, a citizen of Iraq, was born on 1 June 1988. Her immigration history shows that on 16th August 2010 she applied for a settlement visa in order to join her husband Mr Ali Mohammed Husein, a former Iraqi national but now a British citizen, in this country. The application was refused on 8th March 2011 and her appeal against that decision dismissed by First-tier Tribunal Judge Shanahan on 24th October 2011. Permission to appeal was granted to the Upper Tribunal and the matter heard by me on 14th March 2012 with appeal number OA/11803/2011. It was found that although Judge Shanahan had made errors they were not material to the decision to dismiss the appeal. Paragraph 73 of my determination is in the following terms:
73. I therefore find it has not been shown that Judge Shanahan made a material error of law in relation to her assessment of the appellant's ability to meet the requirements of the Rules or in relation to Article 8 on the basis of the evidence that she was asked to consider. This was a decision made on the basis of the evidence made available to Judge Shanahan at the date of that hearing. I have found that the finding in relation to 320 (3) and (7A) are not sustainable. It is therefore open to the appellant to make a fresh application. If such an application is made she must note the concerns of both the Judge and ECO relating to her ability to satisfy the rules and ensure that adequate evidence is provided from both her and the sponsor. It may then be that her application will succeed.
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Instead of making a fresh application to secure a settlement visa lawfully the Appellant left Iraq on 10th July 2012 and entered the United Kingdom illegally on 6th August 2012 after which she claimed asylum.
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Her appeal against the refusal of her asylum claim was heard by First-tier Tribunal Judge Chohan at Birmingham on the 22nd October 2012 who set out his findings from paragraph 6 of the determination which, in relation to the asylum, humanitarian protection, and Article 3 claims, can be summarised as follows:
i. The Appellants claim based upon a fear from her father was not credible. Her account simply does not make sense [6].
ii. It sounds incredible that the Appellant had a week to gather information about her husband and where he lived in the United Kingdom but failed to do so. It must be remembered that the Appellant had made an application for a settlement visa and had two appeals in the United Kingdom and for her to claim not even to know where her husband lived in the United Kingdom was not credible [7].
iii. Taking as a starting point, when applying the Devaseelan principles, the finding the Appellant was not in a genuine relationship with Mr Husein, [8], having heard the oral evidence of Mr Husein and having considered the evidence as a whole, the Judge was not satisfied the parties are in a genuine relationship. The Appellant is not credible and the credibility of her husband is damaged [9].
iv. It was submitted during the hearing that the Appellant was pregnant but there was no medical evidence to establish pregnancy although even if the Appellant was pregnant there was no evidence to establish that Mr Husein is the father. The Appellant has failed to discharge the burden upon her to prove this fact [10].
v. Having had a settlement application refused and two appeals dismissed the Appellant, together with her family, devised a plan to enter the United Kingdom by other means. The Appellant faces no risk from her father or anyone else in Iraq and there is no reason why as a failed asylum seeker she could not return to Iraq and continue to reside with her family. No evidence was submitted to establish that returned failed asylum seekers are at particular risk. On return to Iraq the Appellant faces no real risk of persecution, serious harm or ill-treatment [11].
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In relation to the Immigration Rules, Judge Chohan’s findings can be summarised as follows:
i. The Appellant cannot meet the requirements of EX.1.(b) of appendix FM [12].
ii. In respect her private life paragraph 276ADE is relevant although in light of the fact the appellant is 24 years of age, has lived in the UK for less than 20 years and has ties to Iraq, she is unable to meet the specific requirements of 276ADE (vi) [13].
iii. The Appellant is not able to meet the requirements of the Immigration Rules [14].
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Judge Chohan also dismissed the claim under Article 8 ECHR in relation to both her family and private life against which permission to appeal was sought and granted by a Designated Judge of the First-tier Tribunal on 23rd November 2012.
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On the 11th January 2013 the matter came before Upper Tribunal Judge O’Connor for directions. One such direction indicated he was minded to set the determination aside and so the parties were invited to make further submissions no later than 25th January 2013. There was no response and accordingly Judge O’Connor concluded that the First-tier Tribunal's determination contained an error of law in its consideration of the Immigration Rules and Article 8 grounds and that it was to be set aside. The decisions made in relation to the Refugee Convention, humanitarian protection and Article 3 ECHR have not been the subject of a challenge and those findings are to remain standing.
The law
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There have been a number of cases both within the Tribunal and the Higher Courts which are relevant to this appeal.
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The first in time is the decision in in R (on the application of Mahmood) v SSHD (2001) 1 WLR 840 in which Laws LJ said “that firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect - as it is - that a person seeking rights of residence here on the grounds of marriage (not being someone who already enjoys leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country, then a waiver of that requirement for someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would be entrants who are content to take their place in the entry clearance queue in their own country“.
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The House of Lords in Chikwamba v SSHD [2008] UKHL 40 said that in deciding whether the general policy of requiring people such as the Appellant to return to apply for entry in accordance with the rules of this country was legitimate and proportionate in a particular case, it was necessary to consider what the benefits of the policy were. Whilst acknowledging the deterrent effect of the policy the House of Lords queried the underlying basis of the policy in other respects and made it clear that the policy should not be applied in a rigid, Kafka-esque manner. The House of Lords went on to say that it would be “comparatively rarely, certainly in family cases involving children” that an Article 8 case should be dismissed on the basis that it would be proportionate and more appropriate for the Appellant to apply for leave from abroad.
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In LE (Turkey) v Secretary of State for the Home Department [2010] CSOH 153 it was held that the combination of a long term breach of immigration control, the recent establishment of a relationship in the full knowledge of such breach and the relative weakness of that relationship, militated strongly against the Claimant’s Article 8 claim, distinguishing Chikwamba and MA (Pakistan) v Secretary of State for...
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