Upper Tribunal (Immigration and asylum chamber), 2014-03-24, IA/14748/2013
| Jurisdiction | UK Non-devolved |
| Date | 24 March 2014 |
| Published date | 09 April 2014 |
| Hearing Date | 11 March 2014 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/14748/2013 |
Appeal Number: IA/14748/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14748/2013
THE IMMIGRATION ACTS
|
Heard at Glasgow |
Determination Promulgated |
|
on 11 March 2014 |
On 24 March 2014 |
|
|
|
Before
UPPER TRIBUNAL JUDGE MACLEMAN
Between
FAISAL SHAHZAD
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
For the Appellant: Mr G Dewar, Advocate, instructed by M & K, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer
No anonymity order requested or made
DETERMINATION AND REASONS
-
The appellant is a citizen of Pakistan, born on 10 August 1984. He entered the UK as a student on 5 March 2011, but did not enrol at college. Immigration officials found him working in Bristol on 6 March 2013. He was served with notice of his liability to detention and removal, and his leave to remain was considered to have expired.
-
On 8 March 2013, he applied for further leave to remain.
-
The respondent refused that application in a decision dated 24 April 2013, dealing firstly with family life in terms of Appendix FM of the Immigration Rules. The respondent noted that the appellant married in an Islamic ceremony on 16 February 2013, which was not recognised in UK law. The appellant lived in Bristol while his partner lived in Livingstone, in Scotland. He said that he saw her every 15 days. The respondent did not consider this to be a genuine and subsisting relationship akin to marriage. His private life was found not to meet the requirements of paragraph 276ADE of the Rules. Finally, no exceptional circumstances were found to justify allowing him to remain.
-
In his grounds of appeal to the First-tier Tribunal the appellant said there were compassionate and compelling grounds for him to remain outwith the requirements of the Immigration Rules, and that his removal would be disproportionate.
-
Judge Wyman heard the appellant’s appeal in the First-tier Tribunal at Hatton Cross on 16 October 2013. The judge noted “numerous inconsistencies” in the oral evidence given by the appellant and his wife (a civil ceremony having taken place on 16 May 2013). He found that the relationship between them was “not genuine and subsisting” (paragraph 60). However, he went on to find that the appellant’s wife (a UK citizen whose father was of Pakistani origin, and who did not speak fluent Urdu) could not be expected to return to Pakistan to live with him (paragraph 68) but that there were no insurmountable obstacles to her living with him in Pakistan while he applied for entry clearance (paragraph 74). Alternatively, she could remain in Scotland while he applied. The appeal was therefore dismissed under Appendix FM. Turning to Article 8 (outwith the Rules) the judge accepted at paragraph 83 that the appellant had “family life with his wife who lives in the UK. They are legally husband and wife.” At paragraph 90 the judge said, “I do not find the appellant has a genuine and subsisting relationship with his wife. This is not to say that he is not legally married to her – I accept that he is.” The judge concluded that it would not be a disproportionate interference for the appellant not to be granted leave to remain in the UK, and dismissed the appeal under the Rules and under Article 8.
-
The appellant sought permission to appeal on proposed grounds of appeal under 4 headings, running to 31 paragraphs over 7 pages. On 21 November 2013, the First-tier Tribunal refused permission to appeal. A further application was made, on the same grounds, to the Upper Tribunal. On 10 December 2013, UT Judge McGeachy granted permission as follows:
The grounds of appeal point to the fact that the judge … found that the marriage was not subsisting but went on to state, “I accept that the appellant has family life with his wife who lives in the UK. They are legally husband and wife.” The grounds claim that the judge was therefore inconsistent in his conclusions and that infects his reasoning …
While it may well be the case that the judge meant that the requirement in the first Razgar step was met merely because the appellant and his wife were married, that is not clear. To that extent I consider that the grounds are arguable.
However, the grounds … are prolix and I direct that 10 days before the hearing the appellant’s representative shall serve edited and comprehensive grounds of appeal of no more than one page …
-
Mr Dewar on 11 March 2014 produced a condensed version of the grounds under the same 4 headings:
Proper consideration of the Immigration Rules
1. It is submitted that Judge has failed to consider all the evidence in the round in accordance with the principles of Tanveer Ahmed [2002] UKIAT 00439, contrary to what he says at paragraph 39, especially when considering the evidence he records at Para 53 and Para 55 of the determination.
2. Furthermore, the Judge has failed to apply the correct standard of proof on the evidence available instead putting the Appellant to strict proof particularly when, the parties are Muslims, having gone through both an Islamic and Civil Marriage.
3. The Judge has further made inconsistent findings in relation to the subsistence of the marriage as highlighted at paragraph 60/90, he concluded that he did not find the relationship genuine and subsisting however on the other hand in conducting the five stage Razgar test he accepted at paragraph 83 “the Appellant has family life with his wife who lives in the United Kingdom. They are legally husband and wife.” In these circumstances it is submitted that the Judge’s confusion on this legal matter highlights a lack of understanding on the relevant law that should be considered either under the rules or Article 8 of the ECHR.
Insurmountable obstacles
4. It is submitted that the Judge has failed to assess factors that were highlighted by the parties with reference to the degree of difficulties [see MF (Nigeria) –v- Secretary of State for the Home Department [2013] EWCA Civ 1129] they would face if required to relocate to Pakistan rather he applies the test of insurmountable obstacles.
5. In any case it appears at paragraph 74, the Judge appears to have misunderstood the issue of “insurmountable obstacles” as he states “I therefore do not accept that there would be insurmountable obstacles with Mrs Jawaid returning to live in Pakistan with her husband, whilst he applies for entry clearance”. The issue of insurmountable obstacles is not one with reference to a short period of time in the home country; it is one of permanence as set out within the Rules.
Findings of Fact
6. Paragraph 55 – in relation to inconsistencies highlighted by the Judge from paragraph 55 – 59 he fails to accord the parties with the benefit of doubt given that memory and recollection is not infallible.
7. Furthermore the Judge has factually erred through his own questioning and record of evidence from the witnesses as to some of the findings in relation to inconsistencies. (see paragraph 29, paragraph 30 and Paragraph)
8. Paragraph 61 – the Judge has factually erred when he stated that the Appellant did not tell his wife about his Immigration status until after his arrest on 6th of March 2013. It is submitted that the Appellant had valid student leave before this date given that it was only on this date that it was curtailed. This evidence is consistent and does not highlight any omissions by the Appellant to his wife.
9. Paragraph 63 – 65- the Judge concluded the Appellant had used deception to enter the United Kingdom however, as he obtained a Tier 4 student visa and then failed to enrol at the college, however save for this there is no other evidence that the Appellant came to the United Kingdom for reasons other than to study. No questions or evidence was taken from the Appellant as to why he had not attended the college.
Article 8 of the ECHR
10. The Judge failed to ensure that the decision under the rules was consistent with the guidance of the Court of Appeal’s decision in MF, instead he adopts a separate Article 8 assessment from Para 80 onwards. It is submitted that the Judge failed to consider cumulatively the following factors within the rules.
11. That is the parties entered into a relationship at a time the A was lawfully in the UK, it is accepted that they are legally married and able to satisfy the accommodation and maintenance requirements, the A has no criminal convictions, has never claimed public funds and has contributed to the economy through his employment, the sponsor would have certain language barriers (Para 40) and the A’s refusal does not arise as a result of any criminal offending.
12. Furthermore, there was no consideration of the...
To continue reading
Request your trial