Upper Tribunal (Immigration and asylum chamber), 2015-09-03, IA/30213/2014
| Jurisdiction | UK Non-devolved |
| Date | 03 September 2015 |
| Published date | 04 January 2016 |
| Hearing Date | 16 July 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/30213/2014 |
Appeal Number: IA/30213/2014
IAC-PE-AW-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30213/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 16th July 2015 |
On 3rd September 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE BAIRD
Between
mr Tanvir Hussain mirza
(anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Shah – Solicitor of 786 Law Associates
For the Respondent: Mr P Nath – Home Office Presenting Officer
DECISION AND REASONS
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This is an appeal by Tanvir Hussain Mirza, a citizen of Pakistan born 13th January 1963. He appeals against the decision of the Respondent made on 8th July 2014 to refuse leave to remain in the United Kingdom as the unmarried partner of a British citizen.
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The Appellant appealed against that decision and his appeal was allowed on 18th November 2014 by First-tier Tribunal Judge Lowe. The Secretary of State appealed against the decision of Judge Lowe and on 24th March 2015, having heard submissions I found that there was a material error of law in the determination of Judge Lowe in that she failed to consider the evidence in the round and to take account of relevant factors in assessing proportionality. She had allowed the appeal under paragraph 276ADE(vi) of the Immigration Rues and under Article 8 ECHR. I set her decision aside.
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I now proceed to remake the decision.
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The Appellant’s immigration history as set out by the Secretary of State is as follows. He applied for asylum on 18th December 2001 and his application was refused on 10th March 2004 due to non-compliance. He was served with an IS151A on 17th March 2004 and lodged an appeal on 2nd April 2004. His appeal was dismissed on 27th July 2004 and permission to appeal was refused. He became appeal rights exhausted on 21st December 2004. He lodged further submissions on 29th August 2008 which were rejected with no right of appeal on 10th March 2011. He made an application for leave to remain as an unmarried partner on 7th February 2012 which was refused with no right of appeal in June 2012. A reconsideration was requested on 11th July 2012 and the decision which is the subject of this appeal was made on 8th July 2014.
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The Secretary of State found that the Appellant meets the suitability requirements of Appendix FM of the Immigration Rules. She accepted that he meets the relationship requirements of Appendix FM on the basis of his relationship with Mrs Summira Hussain Mirza, a British citizen. The Secretary of State did not accept that the Appellant can meet the criteria of paragraph EX.1 of Appendix FM, taking the view that there are no insurmountable obstacles to the Appellant’s wife returning to Pakistan with him. He has children there. His father is there. He was educated there and speaks the language. He and his spouse had a traditional Islamic wedding on 3rd June 2010 and they could relocate to Pakistan together to continue their family life there. Alternatively he could return to Pakistan to apply for entry clearance.
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The Secretary of State went on to consider the application in terms of paragraph 276ADE of the Immigration Rules but found that none of the criteria of that provision are met. In particular with regard to paragraph 276ADE(vi) the Secretary of State took into account that the Appellant is now 51 years of age and was 38 when he arrived here, having spent his life up to that point in Pakistan. The version of paragraph 276ADE applicable to the Appellant’s claim in light of the date of decision is the original one:
“(vi) Subject to subparagraph 2, (the applicant) is aged 18 years or above, has lived continuously in the UK for less than twenty years discounting any period of imprisonment but has no ties including social, cultural or family with the country to which he would have to go if required to leave the UK.”
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The Secretary of State went on to consider whether there are compassionate and compelling circumstances in this case but concluded that there are none.
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The Secretary of State said in the refusal letter that the Appellant entered the UK on a false passport but it was conceded by Mr Nath that that is not so.
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I have a statement from the Appellant dated 22nd September 2014 in which he states that he came to the UK in 2001 with valid entry clearance as a visitor. He was married in Pakistan but his wife died. He has five children there all grown up. He has not seen them for the last fourteen years. He met his current wife in 2006. She worked in a restaurant owned by a friend of his. He moved in with her in February 2009 and they married in 2010. He is not working in the UK but his wife is. She has parents and a brother here.
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I have a statement from the Appellant’s wife dated 17th September 2014. She describes how they met. They registered their marriage in Scotland on 23rd April 2014. She has family in the UK. I have the Islamic and the Scottish marriage certificates. I have a letter from the Appellant’s GP dated 8th July 2015 confirming that he takes regular medication for diabetes, hypertension and high cholesterol.
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No evidence was led and I heard submissions initially from Mr Shah. He said that it is not the case as claimed by the Secretary of State that the Appellant came to the UK illegally. He entered legally. This has now been accepted by the Respondent. The Appellant was not represented at his appeal against the refusal of asylum. His appeal was dismissed. He met his wife while he was awaiting a decision from the Home Office. She is working full-time. She is financially able to maintain herself and the Appellant. She owns a house. The Appellant has adopted the British way of life. He has some medical problems. He has been disowned by his family in Pakistan. There is no point in him having to go back to Pakistan to seek entry clearance. He would be unable to cope without his wife in Pakistan.
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Mr Nath submitted that the Immigration Rules exist for a reason. The Appellant cannot meet the requirements of the Rules. The meat of this case is the issue of whether there are insurmountable obstacles. The Appellant’s leave was precarious for some time. He said he would rely on SS Congo [2015] EWCA Civ 387 (23 April 2015) and Dube (ss.117A to 117D) [2015] UKUT 90. There are no compassionate circumstances in this case. It is not unreasonable that the Appellant be expected to return to Pakistan to make an application for entry clearance. He relied too on Asif, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 1007 (Admin) (17 April 2015) in which the High Court said,
“In summary, therefore, there will be cases where it is clear that consideration under the Rules has fully addressed any family or private life issues arising under Article 8 , and where that is so it would be sufficient for the SSHD to say so (and the SSHD would need to expressly say so in that situation), but where after consideration under the Rules there remains an arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8 it will be necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave.”
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Mr Shah responded to these submissions saying that the Appellant “remained in the eye” of the authorities during all the time he was here. He was making applications. He was law-abiding. He has no criminal convictions. His wife is working. He has no money, no family, no job in Pakistan and so could not access the medication that he needs.
My findings
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So far as the Immigration Rules are concerned the burden of proof is on the Appellant and the standard of proof is on the balance of probabilities.
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It seems that the Appellant does not meet the financial requirements of Appendix FM. His evidence was that his wife earns around £900 per month. So far as the exception set out at paragraph EX is concerned the question is whether there are insurmountable obstacles to the Appellant’s wife moving with him to Pakistan. There is nothing before me to support a submission that there are insurmountable obstacles to the Appellant and his wife continuing their family life in Pakistan. The evidence of the Appellant’s wife before Judge Lowe was that she was frightened of going to a country like Pakistan. She would lose her way of life in the UK. She would lose her home and her job. The Appellant’s wife is a mature woman. I accept that the culture in Pakistan is different to that in the UK and that it would not be easy for her to adapt to that. The climate will be different. She presumably does not speak Urdu. She has a house and...
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