Upper Tribunal (Immigration and asylum chamber), 2014-08-28, OA/10232/2013

Appeal Number: OA/10232/2013

Upper Tier Tribunal

(Immigration and Asylum Chamber) Appeal Number: OA/10232/2013

THE IMMIGRATION ACTS

Before

Deputy Upper Tribunal Judge Pickup

Between

Entry Clearance Officer- Kingston

Appellant

and

Treachea Adina Gentles

[No anonymity direction made]

Claimant

Representation:

For the claimant: Not represented

For the appellant: Mr C Avery, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The claimant, Treachea Adina Gentles, date of birth 12.11.78, is a citizen of Jamaica.

2. This is the appeal of the Secretary of State against the determination of First-tier Tribunal Judge Canavan, who allowed the claimant’s appeal against the decision of the respondent, dated 17.4.13, to refuse her application made on 11.2.13 for entry clearance to the United Kingdom for settlement as the spouse of Barrington Dale Gentles, a British Citizen. The Judge heard the appeal on 13.5.14.

3. First-tier Tribunal Judge Hollingworth granted permission to appeal on 9.7.14.

4. Thus the matter came before me on 28.8.14 as an appeal in the Upper Tribunal.

5. There was no attendance by the sponsor or on behalf of the claimant. I note that on 16.5.14 notice of today’s hearing was sent to the claimant and the sponsor at the address held on file for the sponsor. There has been no response. Neither has there been a Rule 24 response to the grounds of appeal or the grant of permission to appeal. A contact number was found from the First-tier Tribunal papers for the sponsor and a message left on voicemail but no response was forthcoming. I note that the sponsor has been visiting Jamaica and it may be that he has returned there again. In the circumstances, I decided that it was in the public interest to proceed to determine this appeal without further adjournment.

Error of Law

6. 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 Canavan should be set aside.

7. It is clear from the determination that the claimant could not meet the requirements of the Immigration Rules and in particular the specified evidence under Appendix FM-SE in relation to the sponsor’s employment and income in the UK.

8. At §9 of the determination the judge found no breach of article 8 private life by the decision of the Entry Clearance Officer. However, Judge Canavan went on to make an article 8 family life assessment and find the decision disproportionate.

9. The grounds of application for permission to appeal complain that the judge failed to have regard to the case law guidance of Gulshan, to the effect that only if there are arguably good grounds for granting leave to remain outside the Immigration Rules is it necessary for article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the Rules. I note here that the grounds assume an application for leave to remain, when this is an application for entry clearance, but the principle is the same. From §15 onwards of the determination the First-tier Tribunal Judge simply proceeded to make a free-standing article 8 assessment. It is submitted that without making findings as to arguably good grounds and compelling circumstances not sufficiently recognised under the Rules, the decision is flawed and should be set aside.

10. In granting permission to appeal, Judge Hollingworth noted that although it was conceded that the claimant could not meet the requirements of Appendix FM of the Immigration Rules for entry as a partner, insufficient weight appears to have been accorded to that fact in the overall decision.“The judge attaches insufficient weight to the fact that the appellant has been residing voluntarily in Jamaica for in the region of 6 years with her children without difficulty. So has the sponsor over a considerable period. There appears to be no reason why the sponsor cannot return to Jamaica if he wishes. After all, he has lived there for a number of years. He clearly has extended family. Moreover his medical condition, previously unknown to the respondent, has arisen since the date of decision and was not supported by medical evidence. It is arguable the stand alone article 8 decision is flawed. All the grounds are arguable.”

11. Although the First-tier Tribunal hearing took place in May 2014, Judge Canavan appears to have given no consideration to recent case law on considering article 8 outside the Immigration Rules.

12. The sponsor was not exempt from the financial requirements of Appendix FM, but he claimed to have an income in excess of that required under the Rules. However, the claimant and the sponsor failed to submit the specified evidence required under FM-SE to evidence that income. Neither was there evidence of adequate accommodation. In the circumstances the application was refused. At §8 Judge Canavan found that the decision was in accordance with the Immigration Rules.

13. Having found the appellant does not meet the requirements of the Immigration Rules for leave to remain, the question next arises whether the claimant’s circumstances 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. The case law over the past 12 months has suggested a particular approach, developed over a number of months.

14. 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).

15. In Gulshan (Article 8 – new Rules – correct approach)[2013] UKUT 00640 (IAC) has 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);

16. 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.

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

(i) Failure on the part of the Secretary of State to identify in her decision any legitimate aim under Article 8(2) of the ECHR does not prevent a court or tribunal from seeking to do so on the basis of the materials before it.

(ii) “Maintenance of effective immigration control” whilst not as such a legitimate aim under Article 8(2) of the ECHR can normally be assumed to be either an aspect of “prevention of disorder or crime” or an aspect of “economic well-being of the country” or both.

(iii) “[P]revention of disorder or crime” is normally a legitimate aim both in expulsion cases where there has been criminal conduct on the part of the claimant and in expulsion cases where there have only been breaches of immigration law.

(iv) MF (Nigeria)[2013] EWCA Civ 1192 held that the new immigration rules regarding deportation of a foreign criminal are a complete code. This was because of the express requirement in them at paragraph 398 to have regard to exceptional circumstances and other factors.

(v) It follows from this that any other rule which has a similar provision will also constitute a complete code;

(vi) Where an area of the rules does not have such an express mechanism, the approach in R (Nagre) v Secretary of State for the Home Department[2013] EWHC 720 (Admin) ([29]-[31] in particular) and Gulshan (Article 8 – new Rules – correct approach)[2013] UKUT 640 (IAC) should be followed: i.e. after applying the requirements of the rules, only if there may be arguably good grounds for granting...