Upper Tribunal (Immigration and asylum chamber), 2014-07-07, IA/01066/2014
| Jurisdiction | UK Non-devolved |
| Date | 07 July 2014 |
| Published date | 18 September 2014 |
| Hearing Date | 03 July 2014 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/01066/2014 |
Appeal Number: IA/01066/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01066/2014
THE IMMIGRATION ACTS
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Heard at Glasgow |
Determination promulgated |
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on 3 July 2014 |
On 7 July 2014 |
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Before
UPPER TRIBUNAL JUDGE MACLEMAN
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
SHEHAN ROKMAL FERNANDO
Respondent
For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer
For the Respondent: Mr A Devlin, Advocate, instructed by Mr Neil Barnes, Solicitor
No anonymity order requested or made
DETERMINATION AND REASONS
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This determination refers to parties as they were in the First-tier Tribunal.
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The SSHD appeals against a determination by First-tier Tribunal Judge Grimes, promulgated on 10 March 2014, allowing the appellant’s appeal under Article 8 of the ECHR, on the following grounds:
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Although the judge made reference to Gulshan [2013] UKUT 00640 (IAC), she has failed to identify any compelling circumstances in this case to justify granting the appellant leave to remain outside the Immigration Rules. The appellant’s child is still an infant and would not have developed any private life ties outside its immediate nuclear family. It was made clear in Gulshan that the Article 8 assessment shall only be carried out when these are compelling circumstances not recognised by those Rules. In this case the Tribunal did not identify such compelling circumstances and its findings are therefore unsustainable. Gulshan also makes it clear that at this stage an appeal should only be allowed where there are exceptional circumstances. Nagre [2013] EWHC 720 Admin endorsed the Secretary of State’s guidance on the meaning of exceptional circumstances, namely ones where refusal would lead to an unjustifiably harsh outcome. In this case the Tribunal has not followed this approach and thereby has erred.
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Further, the appellant and his partner entered a relationship in the full knowledge that his immigration status was precarious. The judge has failed to give adequate consideration to the Secretary of State’s legitimate aim of maintaining effective immigration control. In FK & OK Botswana [2013] Civ 238 Sir Stanley Burton aid: “The maintenance of immigration control is not an aim that is implied for the purposes of Article 8.2. Its maintenance is necessary in order to preserve or to foster the economic well being of the country, in order to protect health and morals, and for the protection of the rights and freedoms of others … That the individuals in the present case are law abiding (other than in respect of immigration controls) does not detract from the fact that the maintenance of a generally applicable immigration policy is, albeit indirectly, a legitimate aim for the purpose of Article 8.”
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The Tribunal has failed to apply the income threshold in its Article 8 assessment. In making a decision on an application it is necessary for the decision maker to consider all the legislation relevant to that decision and to give reasons for the way that it applies that legislation to the facts of the case. In this instance the Tribunal had no regard at all to the income threshold requirements of the Immigration Rules. The income threshold ensures that those who choose to establish their family life in the UK should have the financial ability to support themselves and to be able to support their partner’s integration into British society. The financial requirement is a measure within the filed of immigration control that is directly concerned with socio-economic policy, an area where decisions are the remit of the democratically accountable branches of government, not members of the judiciary. The income threshold was adopted following expert advice from the Migration Advisory Committee and was also subject to an extensive consultation process, in which responses were provided from a range of organisations, including a large number that represent immigrants and the communities most directly affected by immigration policy. It is therefore inappropriate that the Tribunal should decide to disregard these points in its proportionality assessment.
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The judge has failed to consider whether the appellant and sponsor can continue their family life outside the UK and in particular whether there are any insurmountable obstacles to family life continuing outside the UK … the judge has failed to identify any circumstances which would render the appellant’s removal unjustifiably harsh.
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It is submitted that “insurmountable obstacles” constitute serious difficulties which the applicant and their partner would face in continuing their family life outside the UK, and entail something that could not be overcome, even with a degree of hardship for one or more of the individuals concerned. It is not something that is merely unreasonable or undesirable. The Immigration Rules specify that the existence of insurmountable obstacles to family life continuing outside the UK is a key factor in the proportionality assessment, albeit not a determinative factor. The Rules require an assessment of whether removal is prevented by “insurmountable obstacles” rather than whether it is “reasonable to expect” the family to leave together. It is submitted that the changes to the Immigration Rules with the Article 8 provisions introduced in July 2012 clarified an important issue on this point. Prior to that time case law listed possible relevant factors but left it to the individual decision maker in an individual case to determine how best to balance the relevant factors, based on that person’s perception of public policy considerations. This resulted in divergent outcomes as decision makers had to reach their own view on the public policy imperatives, without a clear statement from the Secretary of State and Parliament on where the public interest lies. Since the new Rules came into force, decision makers no longer operate in a policy vacuum. It is acknowledged that the facts of the individual case are the starting point when considering proportionality, but they are also the starting point which then has to be balanced against the public interest as reflected in the new Rules. The public interest achieved by applying clear rules must be measured by the effect of the rules across the board, not just in relation to an individual case. In this case the Tribunal did not apply this approach and thereby misdirected itself in law.
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Following the grant of permission, the appellant filed the following response under Rule 24:
Denied that the FtT failed to give any reasons or adequate reasons.
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The Immigration Judge did identify compelling reasons, bearing in mind that insurmountable obstacles is not the correct test and also bearing in mind that the decision has to be read as a whole: the parties were living together (see paragraph 5); they have a son (see paragraph 5); the claimant’s wife needs the support of her family who are in the UK as she suffers from depression (see paragraph 6); the parties would be unable to meet the financial requirements of Appendix FM (see paragraph 6; Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420 at paragraph 44 per Lord Brown; MA (Pakistan) v Secretary of State for the Home Department [2010] Imm AR 196 at paragraph LJ Sullivan; Secretary of State for the Home Department v Hayat and Treebhowan [2013] Imm AR at paragraph 30 per LJ Elias; Kotecha v Secretary of State for the Home Department [2011] EWHC 2070 (Admin) at paragraph 60 per Mr Justice Burnett); all the claimant’s partner’s family are in the UK; she has no ties to Sri Lanka; she does not speak Tamil (see paragraph 8; Yildiz v Austria (2003) 36 EHRR 32 at paragraph 43; Amrollahi v Denmark Application No 56811/00 ECtHR at paragraph 46; Boultif v Switzerland (2001) 33 EHRR 50 at paragraph 53); the claimant’s wife and child are British and EU nationals and it is not reasonable to expect them to relocate to a country outwith the EU (see paragraphs 13, Ogundimu (Article 8: New Rules: Nigeria) [2013] UKUT 60; Sanade and others (British children – Zambrano – Dereci) [2012] Imm AR 597 at paragraph 95; VW (Uganda) v Secretary of State for the Home Department [2009] Imm AR 436 at paragraph 46 per LJ Sedley: AB (Jamaica) v Secretary of State for the Home Department [20089[ 1 WLR 1893 per LJ Sedley; ...
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