Upper Tribunal (Immigration and asylum chamber), 2016-06-08, IA/46112/2014
| Jurisdiction | UK Non-devolved |
| Date | 08 June 2016 |
| Published date | 12 June 2017 |
| Hearing Date | 23 March 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/46112/2014 |
Appeal Number: IA461122014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA461122014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 23rd March 2016 |
On 8th June 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE SAINI
Between
MR KANWALPREET SINGH
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
For the Appellant: Mr V Makol, Solicitor; Maalik & Co Solicitors
For the Respondent: Mr P Nath, Senior Presenting Officer
DETERMINATION AND REASONS
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The Appellant, a citizen of India, born on 15 December 1991, appeals against the decision of the Respondent refusing his application for further leave to remain based upon his family life under Article 8 ECHR in respect of his British partner, Ms Sarah Lindsay.
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The Appellant entered the UK as a Tier 4 student with valid leave from 11 May 2011 until 25 November 2014. The Appellant’s leave was however curtailed under paragraph 323A(a)(iii)(2) of the Immigration Rules so as to expire on 24 November 2013 due to ceasing study with his sponsor. The Appellant did not make any application to extend his leave before its expiry in 2013 and subsequently became an overstayer. On 9 December 2013, the Appellant was served with an IS151A notice. However, within 28 days of overstaying, the Appellant submitted an application on 18 December 2013 for leave to remain under the family and private life 10-year route. On 20 January 2014, the application was rejected and on 30 January 2014 the Appellant resubmitted his application. The application was then refused on 11 February 2014.
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On 19 May 2014, the Appellant made a further application for leave to remain on the basis of his relationship with Ms Sarah Lindsay, a British citizen. On 10 June 2014, his application was refused and certified as clearly unfounded. On 16 September 2014, the Appellant informed the Respondent that Ms Lindsay was pregnant and on 24 October 2014 further submissions were made on the Appellant’s behalf. On 28 October 2014, a decision was made to refuse the application for leave to remain and removal directions were issued against the Appellant pursuant to section 10 of the Immigration and Asylum Act 1999. The Appellant appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) to the First-tier Tribunal which dismissed his appeal. That determination was appealed and set aside by me for material error of law. Consequently the appeal now arises before me without any findings of fact preserved.
The Hearing
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I heard evidence from the Appellant primarily in English with the assistance of a Punjabi interpreter for occasional phrases that he was unable to communicate. I also heard evidence from the Appellant’s partner, Ms Sarah Lindsay, and Ms Emma Lindsay (Ms Sarah Lindsay’s sister). A full note of their evidence is set out in my record of proceedings which I shall not rehearse herein.
Findings of Fact and Reasons
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The standard of proof is to the civil standard and that of the balance of probability. I have considered all the evidence in the appeal, including the appellant’s and respondent’s bundles and the authorities I have been referred to. I heard submissions from both parties which are set out in full in my record of proceedings.
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From the outset, I find that the Appellant, his partner Ms Sarah Lindsay, and her sister, Ms Emma Lindsay are all witnesses of truth and I found their evidence credible. The Respondent equally did not seek to persuade me otherwise and accepted that the witness evidence was credible. It is fair to say that the facts were not in dispute in this appeal so much as the interpretation of the Appellant’s family life against the Rules and Article 8 of the European Convention on Human Rights. Consequently, I turn my attention to the Rules given that they are a starting point for my assessment concerning the Appellant’s family life under Article 8. Those Rules take automatic account for the Secretary of State’s view as to the public interest that must be weighed in the balance in the Respondent’s codified approach to assessing any person’s convention rights in respect of their family (or private) life under Article 8 ECHR.
Immigration Rules and Appendix FM
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To succeed under Appendix FM in relation to his family life with his partner, the Appellant must meet R-LTRP.1.1.(d) which states as follows:
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the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
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the applicant meets the requirements of paragraphs E-LTRP.1.2-1.12. and E- LTRP.2.1.; and
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paragraph EX.1. applies.
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My findings in respect of the immigration rules, particularly in relation to family life as a partner under Appendix FM, are as follows. In respect of the suitability requirements under S-LTR, the Refusal Letter remains silent, however for the avoidance of doubt I cannot see that the Appellant would fall for refusal under the suitability requirements given that there is nothing in his history that would call for his being deemed unsuitable under S-LTR as, for example, he has not made false representations or been the subject of a deportation order nor has it been said that his presence is not conducive to the public good.
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I find that the Appellant and Ms Lindsay are in a genuine and subsisting relationship. The relationship commenced in 2012 and they have been living together since October 2013 and the Appellant and Ms Lindsay plan to marry in the future. Therefore, the Appellant is the fiancé of Ms Lindsay and a partner under GEN.1.2 of Appendix FM (as already stated at paragraph 13 of the Refusal Letter of 28 October 2014).
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In respect of the eligibility requirements, it is not in dispute that the Appellant and his partner meet the requirements at E-LTRP.1.2-.1.12 and 2.1 except for 1.12 which states that “The applicant's partner cannot be the applicant's fiancé(e) or proposed civil partner, unless the applicant was granted entry clearance as that person's fiancé(e) or proposed civil partner.” It is clear from the Appellant’s immigration history (supra) that he was not granted entry clearance as a fiancé and so the eligibility requirements cannot be met in this one regard. Consequently, the Appellant cannot succeed on the basis of his family with his partner under the Rules.
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Turning to his family life with his child, the Appellant must meet R-LTRPT.1.1 which states as follows:
R-LTRPT.1.1. The requirements to be met for limited or indefinite leave to remain as a parent or partner are-
(a) the applicant and the child must be in the UK;
(b) the applicant must have made a valid application for limited or indefinite leave to remain as a parent or partner; and either
(c) (i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
(ii) the applicant meets all of the requirements of Section ELTRPT: Eligibility for leave to remain as a parent, or
(d) (i) the applicant must not fall for refusal under S-LTR: Suitability leave to remain; and
(ii) the applicant meets the requirements of paragraphs E-LTRPT.2.2-2.4. and E- LTRPT.3.1.; and
(iii) paragraph EX.1. applies.
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My findings in respect of the immigration rules, particularly in relation to family life as a parent under Appendix FM, are as follows. In R-LTRPT.1.1(a) it is not in dispute that the Appellant and his child (hereinafter “Miss A”) are both in the UK. There is no dispute that the application was valid (R-LTRPT.1.1.(b)) nor that the Appellant falls for refusal under the suitability requirements under S-LTR (see above) (R-LTRPT.1.1.(c)(i)). In respect of the eligibility requirements for leave to remain as a parent, they state in relevant part, as follows:
E-LTRPT.2.2. The child of the applicant must be-
(a) under the age of 18 years at the date of application, or where the child has turned 18 years of age since the applicant was first granted entry clearance or leave to remain as a parent under this Appendix, must not have formed an independent family unit or be leading an independent life;
(b) living in the UK; and
(c) a British Citizen or settled in the UK; or
(d) has lived in the UK continuously for at least the 7 years immediately preceding the date of application and paragraph EX.1. applies.
E-LTRPT.2.3. Either-
(a) the applicant must have sole parental responsibility for the child or the child normally lives with the applicant and not their other parent (who is a British Citizen or settled in the UK); or
(b) the parent or carer with whom the child normally lives must be-
(i) a British Citizen in the UK or settled...
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