Upper Tribunal (Immigration and asylum chamber), 2014-06-30, OA/14768/2013

Appeal Number: OA/14768/2013

Upper Tier Tribunal

(Immigration and Asylum Chamber) Appeal Number: OA/14768/2013

THE IMMIGRATION ACTS

Before

Deputy Upper Tribunal Judge Pickup

Between

Secretary of State for the Home Department

Appellant

and

Temilade Tejumade Oluwatuyi

[No anonymity direction made]

Claimant

Representation:

For the claimant: Mr B Chimpango

For the respondent: Mr A McVeety, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The claimant, Temilade Tejumade Oluwatuyi, date of birth 5.7.77, is a citizen of Nigeria.

2. This is the appeal of the Secretary of State against the determination of First-tier Tribunal Judge Bruce, who allowed her appeal against the decision of the respondent, dated 19.4.13, to refuse entry clearance to the United Kingdom as a partner, pursuant to Appendix FM of the Immigration Rules. The Judge heard the appeal on 1.4.14.

3. First-tier Tribunal Judge Davey granted permission to appeal on 29.4.14.

4. Thus the matter came before me on 17.6.14 as an appeal in the Upper Tribunal.

Error of Law

5. In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the determination of Judge Bruce should be set aside.

6. I note that there is no cross appeal against the First-tier Tribunal’s dismissal of the appeal on immigration grounds. In the circumstances that decision must stand. The respondent appeals against the judge’s decision in relation to human rights.

7. The relevant background can be summarised as follows. The appellant came to the UK as a visitor but overstayed and worked illegally. Following conviction and sentence in 2005 to 12 months imprisonment for obtaining a pecuniary advantage by deception the appellant was removed to Nigeria. In 2009 she applied to return as the spouse of Mr Olubunmi Oluwatuyi, a British citizen, but was refused on the grounds that exclusion was conducive to the public good and her appeal dismissed in 2010 by Judge Herwald. There was no appeal against that determination, which found that the appellant had a serious criminal record and that it would be undesireable to grant her entry clearance.

8. The application the subject of the present appeal was made on 14.1.13 and refused on 31.5.13 on the basis that her conviction is not spent and thus her application has to be refused under Appendix FM and it was undesirable to grant entry on compassionate grounds, because of her character and conduct. There were also other failures to comply with the requirements of Appendix FM. The Entry Clearance Manager also raised the issue as to whether there was a genuine and subsisting relationship.

9. Judge Bruce correctly found that the appeal could not succeed under Appendix FM because, as explained at §8 of the determination, the appellant does not meet the suitability requirements of section S-EC, because a period of 10 years had not elapsed since the end of her sentence. In such circumstances, “unless refusal would be contrary to (ECHR and Refugee Convention), it will only be in exceptional circumstances that the public interest in maintaining refusal will be outweighed by compelling factors.”

10. At §10, although she disagreed with the conclusion, Judge Bruce found that she was bound by the unappealed findings of Judge Herwald that the appellant had a serious criminal record and that it would be undesirable to grant her entry clearance. There was no evidence to justify departing from that finding and thus judge Bruce concluded that the appellant fell foul of the ground of refusal under S-EC 1.5.

11. I’m not sure I understand Judge Bruce’s remarks at §10, where she stated that she would have no hesitation in reaching a different conclusion from Judge Herwald. However, whether S-EC 1.4 or S-EC 1.5 applies, the effect is the same, that the application has to be refused under Appendix FM. The application could not succeed under other provisions of Appendix FM because section S-EC is a mandatory ground for refusal of entry clearance.

12. Judge Bruce then proceeded to consider whether the appellant’s and her husband’s circumstances in relation to human rights justified allowing entry clearance to the UK as a partner, despite inability to comply with section S-EC.

13. Judge Bruce found that the marriage was genuine and subsisting and that the parties intended to live together. She also found that there was family life between the appellant and his wife and that the refusal to grant entry clearance was a very serious interference with that family life. In essence, Judge Bruce went through the Razgar steps and reached the eventual conclusion that she would have allowed an application to revoke a deportation order and that the decision was unjustifiably harsh. Having dismissed the appeal on immigration grounds, the judge allowed the appeal on human rights grounds.

14. In granting permission to appeal, Judge Davey noted that the grounds raise arguable errors of law in the assessment of relevant factors in the article 8ECHR proportionality assessment and in relation to the public interest remarks at §14 of the determination.

15. I disagree with Judge Davey’s statement at §3 that grounds 5 and 6 were unlikely to succeed “because notwithstanding Gulshan and Nagre, article 8 outside of the Immigration Rules falls to be considered under European case law and as demonstrated by Huang [2007] UKHL 11 and MF (Nigeria) [2013] EWCA Civ 1192.” That is not an accurate statement of the current case law. It is no longer good law that there must be a two-stage process, first under the Immigration Rules and then under article 8ECHR on the basis of Razgar.

16. Having found the appellant did not meet the requirements of the Immigration Rules for leave to remain, Judge Bruce should have considered whether the appellant’s circumstances might arguably be sufficiently compelling and insufficiently recognised within the Immigration Rules so as to justify granting the application outside the Immigration Rules on the basis of article 8, as the decision of the Secretary of State produces a result that is unjustifiably harsh. Whilst Judge Bruce did find the decision to be in her view “unjustifiably harsh,” she appeared to have done so under a Razgar consideration of article 8 outside the Immigration Rules, without consideration of the current case law setting out what must take place before that stage can be embarked upon.

17. In MF (Nigeria) v SSHD[2013] EWCA Civ 1192, the Court of Appeal held that in relation to deportation cases the ‘new’ Immigration Rules are a complete code but involve the application of a proportionality test. Whether that is done within the new rules or outside the new rules as part of the article 8 general law was described as a sterile question, as either way the result should be the same; what matters is that proportionality balancing exercise is required to be carried out. In other words, a proportionality test is required whether under the new rules or article 8.MF (Nigeria) was followed in Kabia (MF: para 398 - "exceptional circumstances")2013 UKUT 00569 (IAC).

18. In Gulshan (Article 8 – new Rules – correct approach)[2013] UKUT 00640 (IAC) the Upper Tribunal set out, inter alia, that on the current state of the authorities:

(b) after applying the requirements of the Rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them: R (on the application of) Nagre v Secretary of State for the Home Department[2013] EWHC 720 (Admin);

(c) the term ”insurmountable obstacles” in provisions such as Section EX.1 are not obstacles which are impossible to surmount: MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC); Izuazu (Article 8 – new rules) [2013] UKUT 00045 (IAC); they concern the practical possibilities of relocation. In the absence of such insurmountable obstacles, it is necessary to show other non-standard and particular features demonstrating that removal will be unjustifiably harsh: Nagre.

19. The case also explained that the Secretary of State addressed the Article 8 family aspects of the respondent’s position through the Rules, in particular EX1, and the private life aspects through paragraph 276ADE. Only if there were arguably good grounds for granting leave to remain outside the rules was it necessary for him for Article 8 purposes to go on to consider whether there were compelling circumstances not sufficiently recognised under the Rules.

20. More recently, in Shahzad (Art 8: legitimate aim)[2014] UKUT 00085 (IAC), the Upper Tribunal held:

(i) Failure...