Upper Tribunal (Immigration and asylum chamber), 2015-10-20, IA/20319/2014
| Jurisdiction | UK Non-devolved |
| Date | 20 October 2015 |
| Published date | 04 May 2016 |
| Hearing Date | 09 October 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/20319/2014 |
Appeal Number: IA/20319/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20319/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision and Reasons Promulgated |
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On 9th October 2015 |
On 20th October 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE DOYLE
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And
L C C
(Anonymity direction made)
Respondent
Representation:
For the Appellant: Ms E Savage
For the Respondent: Appellant in Person
DECISION AND REASONS
1. I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellant, or her family because of the minority of the appellant’s husband’s. For the same reason an anonymity direction was made at first instance. No public interest is served in identifying the appellant or her family.
2. The Secretary of State for the Home Department brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Black, promulgated on 22 June 2015, which allowed the Appellant’s appeal.
Background
3. The Appellant was born on 21 July 1977 and is a national of Jamaica.
4. On 16 April 2014 the Secretary of State refused the Appellant’s application for leave to remain in the UK under appendix FM and paragraph 276 ADE, and decided to remove the appellant from the UK.
The Judge’s Decision
5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Black (“the Judge”) allowed the appeal against the Respondent’s decision under the Immigration Rules.
6. Grounds of appeal were lodged and on 7 September 2015 Judge Grimmett gave permission to appeal stating inter alia
“The respondent asserts that the high test of insurmountable obstacles is not met simply by virtue of possibility of disruption to the relationship of the appellant’s husband with his minor children in the UK. This point is arguable”
The Hearing
7. Ms Savage, for the respondent, adopted the terms of the grounds of appeal and referred me to the case of Agyarko v SSHD [2015] EWCA Civ 440. Ms Savage emphasised [21] & [28] of that case, and argued that the judge had failed to correctly apply the necessary test, and so had fallen into material error of law by failing to acknowledge the high threshold created by the expression “insurmountable obstacles”. She argued that infrequent and irregular contact between the appellant’s husband and his minor children does not amount to an insurmountable obstacle to removal.
8. The appellant was present. She was not represented and was clearly nervous. I explained to the appellant that an appeal can only be made on a point of law, & that an argument had been presented that the decision which had gone in her favour in June 2015 contains a material error of law. I told her that I understood that her position is that there is no material error of law contained in the decision and that I know that she wants the decision to stand. She confirmed to me that that was her position & that she had nothing further to add.
Analysis
9. This case turns entirely on interpretation of the phrase “insurmountable obstacles” as it is used in paragraph EX.1(b) of the rules. The respondent accepts that the appellant has a genuine and subsisting relationship with her husband and that the appellant meets the eligibility requirements of appendix FM. The respondent does not accept that the appellant fulfils the criteria of paragraph 276 ADE because the respondent believes that the appellant has not lost ties to Jamaica.
10. The judge found that the appellant entered the UK in December 2001; although she has remained in the UK since then she has not have leave to remain in the UK since 30 September 2002. The judge found that the appellant and her husband had been living together since 2008, and married in August 2012. The appellant’s husband has two children from a previous relationship both of the children are under 10 years of age. The appellant’s husband enjoys contact to his two children each weekend.
11. The judge found that the appellant husband is a British citizen who has never been to Jamaica, and that the impact of the respondent’s decision would be to force the appellant’s husband to choose between severing his relationship with his children by moving to Jamaica, or severing his relationship with his wife by remaining in the UK
12. In R (on the application of Agyarko) [2015] EWCA Civ 440 it was held that the phrase "insurmountable obstacles" as used in paragraph EX.1 of the Rules “…clearly imposes a high hurdle to be overcome by an applicant for leave to remain under the Rules. The test is significantly more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the United Kingdom”. “...The phrase as used in the Rules is intended to have the same meaning as in the Strasbourg jurisprudence. It is clear that the European Court of Human Rights regards it as a formulation imposing a stringent test in respect of that factor, as is illustrated by Jeunesse v Netherlands (see para. [117]: there were no insurmountable obstacles to the family settling in Suriname, even though the applicant and her family would experience hardship if forced to do so). “
13. Paragraph 24 of Agyarko says “the "insurmountable obstacles" criterion is used in the Rules to define one of the preconditions set out in section EX.1(b) which need to be satisfied before an applicant can claim to be entitled to be granted leave to remain under the Rules. In that context, it is not simply a factor to be taken into account. However, in the context of making a wider Article 8 assessment outside the Rules, it is a factor to be taken into account, not an absolute requirement which has to be satisfied in every single case across the whole range of cases covered by Article 8.”
14. At paragraph 26 of that decision “The mere facts that Mr Benette is a British citizen, has...
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