Upper Tribunal (Immigration and asylum chamber), 2018-05-30, HU/10803/2016
| Jurisdiction | UK Non-devolved |
| Date | 30 May 2018 |
| Published date | 20 June 2018 |
| Hearing Date | 17 May 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/10803/2016 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10803/2016
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 17 May 2018 |
On 30 May 2018 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE LATTER
Between
RAVINDRAN GANGANA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
ENTRY CLEARANCE OFFICER, CHENNAI
Respondent
Representation:
For the Appellant: Mr F Khan, counsel.
For the Respondent: Mr E Tufan, Home Office Presenting Officer.
DECISION AND REASONS
1. This is an appeal by the appellant against a decision of the First-tier Tribunal dismissing his appeal against the respondent's decision of 30 March 2016 refusing him entry clearance as a spouse.
Background.
2. The appellant is a citizen of India born on 13 January 1985. He made an illegal entry into the UK in November 2007 and he came to the attention of the authorities in January 2011 when he was apprehended working illegally. On 17 February 2011 he claimed asylum using a false name, claiming to be a Sri Lankan who had been arrested in Sri Lanka and questioned about LTTE involvement. His application was refused on 17 March 2011. The appellant was later released from immigration detention on reporting conditions, but he absconded.
3. He was encountered again in March 2014. He made a voluntary departure from the UK in July 2014 and on 29 January 2016, he applied for entry clearance as a spouse. His wife, the sponsor, is a British citizen, born on 29 January 1987. She came to the UK with her family from Sri Lanka in November 1988. They first met in 2011 and their relationship became more serious in 2012. The judge found that the sponsor knew at an early stage of the relationship and some three years before they married that the appellant did not have leave to be in the UK. They then continued their relationship for about two years before the appellant disclosed his real identity to the respondent and arranged to leave the country voluntarily [27].
4. The appellant made an application for entry clearance from India. In support of his application he produced his marriage certificate, photographs of the wedding ceremony and records of telephone calls between him and the sponsor. The respondent was not satisfied that the appellant's identity had been established in the light of his previous claim for asylum as a Sri Lankan national or that it had been demonstrated that his relationship with the sponsor was genuine or subsisting. His application was also refused under the provisions of para 320(11) of the Rules on the basis that that he had contrived in a significant way to frustrate the intentions of the Rules. The respondent went on to consider whether the application raised any exceptional circumstances consistent with the right to respect for family life to warrant consideration of a grant of entry clearance outside the Rules but found that there were no such circumstances. The decision was maintained on review.
The Hearing before the First-tier Tribunal.
5. The judge was satisfied that the appellant’s identity was as claimed and that he and the sponsor had a genuine and subsisting marriage and intended to live with one another permanently [15]. It was asserted at the hearing that the appellant had claimed asylum as a Sri Lankan only because he was advised by solicitors to do so. The judge noted that the appellant had not complied with the guidance in SV (Alleging misconduct and suppressed evidence) Iran [2005] UKAIT 160 and BT (Former solicitor’s alleged misconduct) Nepal [2004] UKIAT 311 and gave that explanation little weight [16]. She commented that the sponsor had categorised the appellant's past non-compliance with immigration controls as a "mistake", asserting that everyone made mistakes and that the appellant should be given a second chance. However, the judge was not impressed with this argument and said that the appellant's actions were not misguided: they were dishonest; the responsibility for that dishonesty rested with him and his attempts to understate his actions and to blame others did him no credit [18e].
6. The judge found that the appellant's case clearly fell within the ambit of para 320(11), saying that it was significant that his particular immigration history involved several factors listed in that paragraph as "aggravating circumstances": he had absconded, used an assumed identity and made a false asylum application. The judge had been referred to PS (paragraph 320(11) discretion; care needed) India UKUT 440 and found that the appellant’s disregard for immigration controls was far more serious than in the case of PS.
7. The judge then considered the position under article 8. She was satisfied that family life was engaged, the decision would be an interference, it was in accordance with the law and was for a legitimate aim. The sole issue to be considered was proportionality. She was satisfied that the appellant would be financially independent in the UK as the sponsor's earnings were sufficient to meet the requirements of the Rules. She commented that the appellant claimed to have passed an lELT life skill examination, reading and listening skills but she could not locate the certificate in either the appellant’s or the respondent’s bundles. In her view the evidence produced was not sufficient to show that the appellant had the language skills required for integration into British society.
8. She took into account that the relationship was established during a period of unlawful residence and should be given little weight in accordance with the provisions of s.117D of the Nationality, Immigration and Asylum Act 2002. She then considered the sponsor’s evidence that when she had visited the appellant in India, she had been unwell and for this reason would be unable to live there. The judge accepted that the sponsor did suffer some ill health during her visits there, but she was not satisfied that the consequences were as serious as the sponsor claimed. The judge did not accept as claimed that she could not conceive or carry a pregnancy to full term in India or would be at risk of cancer there. She accepted that the sponsor had suffered relatively short-term illnesses there which were not serious, albeit they were unpleasant and uncomfortable. They were not such that it would make it unreasonable for the sponsor to share family life with the appellant in India [30]. The judge found that it would not be unreasonable for the sponsor to go to India, that the respondent’s decision was proportionate and did not breach article 8.
The Grounds of Appeal and Submissions.
9. In the grounds of appeal, it is argued that the sponsor had given clear evidence that she could not live in India and that this evidence was not challenged. It was therefore procedurally unfair for the judge to make an adverse finding on this issue without the sponsor having a proper opportunity to respond to the concerns the judge had about her evidence and the medical evidence. It is further argued that, even though the judge found that the sponsor had exaggerated her medical complaints, she still accepted that the sponsor had become ill when she went to India on short term visits. If the sponsor became ill in India and then returned to the UK and recovered, it would follow, so the grounds argue, that if she lived there full-time, she would be permanently, or alternatively, nearly always, ill.
10. It is then argued that at [21] the judge reviewed the decision of the respondent rather than coming to her own decision on whether the decision was in accordance with the law or for a legitimate purpose and, when considering proportionality, she failed to distinguish between a clear failure to meet the Rules with a situation where she fell foul of a judgment of the respondent when it was not so "clear-cut" that the appellant did not comply with the Rules. It followed that the judge had not carried out her own freestanding proportionality assessment, which was fundamentally flawed. Finally, it is argued that the judge was wrong to find that the appellant did not meet the English language requirement: this was a point never taken by the respondent nor was it a live issue at the hearing.
11. At the hearing before me, Mr Khan adopted these grounds. He accepted in the light of a note from the presenting officer at the First-tier Tribunal hearing that the sponsor had been questioned about the medical evidence but he argued that the judge had not given proper...
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