Upper Tribunal (Immigration and asylum chamber), 2016-01-05, IA/21234/2014
| Jurisdiction | UK Non-devolved |
| Date | 05 January 2016 |
| Published date | 08 August 2016 |
| Hearing Date | 09 December 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/21234/2014 |
Appeal No. IA/21234/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21234/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 9 December 2015 |
On 5 January 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW
Between
MR CLAUDIUS JOSEPH WAYLAND
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE Secretary of State FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Fouladvand of counsel
For the Respondent: Mr K Norton, a Home Office Presenting Officer
DECISION AND REASONS
Introduction
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This is an appeal by the appellant against a decision of the First-tier Tribunal dismissing his appeal against a decision of the Secretary of State taken on 29 April 2014 to refuse his application for leave to remain on the basis of his private and family life in the UK and a decision of 31 March 2014 to remove him under section 10 of the Immigration and Asylum Act 1999.
Background Facts
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The appellant is a citizen of Dominica who was born on 1 April 1972. He entered the UK on 29 May 2005 with leave for 6 months as a visitor. In 2011 he married Sharon Denise Moore, a British citizen. On 16 September 2011 he applied for leave to remain as a spouse under the Immigration Rules HC395 (as amended) (‘the Immigration Rules’). That application was rejected on 25 October 2011. On 1 November 2011 a further application for leave to remain as a spouse was made by the appellant. On 9 December 2011 that application was also rejected. A letter dated 9 December 2011 was submitted requesting reconsideration. On 24 March 2014 a further letter was sent on the appellant’s behalf asking for the appellant’s case to be considered under Article 8 of the European Convention on Human Rights. The Secretary of State refused the application on the basis that the appellant did not meet the financial and language requirements under the Immigration Rules and that there were no insurmountable obstacles to family life continuing outside the UK.
The Appeal to the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal. In a determination promulgated on 6 May 2015, First-tier Tribunal Judge Holder (‘the judge’) dismissed the appellant’s appeal. The First-tier Tribunal found that the appellant did not meet the financial requirements of the Immigration Rules. The First-tier Tribunal also found that the appellant had not shown that there would be very significant difficulties faced by him or his partner in continuing family life together outside the UK which could not be overcome. In considering Article 8 outside the Immigration Rules the First-tier Tribunal found that the respondent’s decision to remove the appellant was proportionate, the balance falling on the side of the public interest in maintaining effective immigration control.
The Appeal to the Upper Tribunal
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The appellant sought permission to appeal to the Upper Tribunal. On 14 July 2015 First-tier Tribunal Judge Molloy refused permission to appeal. The appellant made an application to the Upper Tribunal. On 1 September 2015 Upper Tribunal Judge Canavan granted permission to appeal. In granting permission Judge Canavan considered that it was arguable that the First-tier Tribunal had not given sufficient consideration to the reasons why the appellant’s wife said she would not leave the UK. Thus, the appeal came before me.
Summary of the Submissions
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The grounds of appeal which are lengthy assert in essence:
Ground 1
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The judge applied the wrong test ( he failed to take into account the recent case of Dube (ss.117A-117D) [2015] UKUT 00090 (IAC) which was drawn to his attention) when considering the appellant’s ties to Dominica and that there was no objective basis on which the Judge could make a decision that his removal would not lead to serious hardship.
Ground 2
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The judge erred when making findings that there are no significant difficulties which would be faced by the appellant or his partner in integrating into Dominica when the reality is the appellant‘s family are in the UK. The judge erred in law by failing to consider that the UK has a positive obligation to ensure family life flourishes. The judge failed to take into account the effect of forcing the appellant, his wife, her children and grandchild and her father to leave the UK would breach the Zambrano principle and the principles set out in Harrison (Jamaica) v SSHD (2012) EWCA 1710. The judge failed to take account of the important roles the appellant played in the lives of his wife’s family.
Ground 3
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The judge erred by effectively allowing immigration control to trump family life without considering the effects on the appellant‘s family (Beoku-Betts (FC) v SSHD [2008] UKHL 39) and that the judge failed to carry to a proper balancing exercise.
Ground 4
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The judge made an error of law when he failed to consider that the Respondent’s decision was unreasonable. – MF (Nigeria) v SSHD (2013) EWCA Civ 1192.
Ground 5
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The judge made an error of law in finding that the appellant can continue the relationship by visiting and the usual methods of communicating until such time as the appellant is able to satisfy the Immigration Rules.
Ground 6
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The judge failed to take into account the best interests of the child as the primary consideration and failed to take into account the pivotal role the appellant played in the child’s life.
Ground 7
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The judge erred by failing to take into account that the appellant’s wife supports him, that he speaks English and is not a burden in British taxpayers, is fully integrated unto British society and it is not in the public interest to remove him.
Ground 8 – ground (a) in the application to the Upper Tribunal for permission to appeal
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The judge’s approach to proportionality is flawed. The judge misconstrued section 117B and erred in law in attaching weight to considerations stipulated in those provisions in assessing the Article 8 appeal. The judge erred in considering that the appellant’s failure to meet the requirements in Appendix FM means he could not succeed under Article 8. There has been no proper assessment of Article 8 as set out in the case of Razgar. No proper consideration was given to Article 8. The judge ought to have considered whether there were exceptional circumstances meriting consideration of Article 8 outside the Rules. The judge failed to consider the Human Rights of the appellant’s wife.
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Mr Fouladvand submitted that the core issue is that the appellant’s wife cannot relocate because of her ties to the UK. She has children and grandchildren in the UK. She is working and has a close bond with her family. It would be unreasonable to expect the appellant’s spouse, a British citizen to relocate. As the documents demonstrated the appellant’s wife’s mother was seriously ill and she now has responsibility for administering the estate. He submitted that the First-tier Tribunal did not consider the various factors that ought to have been taken into account and therefore the decision was flawed and the conclusions were flawed.
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Although not making an application to amend the grounds of appeal Mr Fouladvand submitted that there was ample evidence that the appellant’s spouse was earning more than £18,600 and in view of that fact the appellant did meet the financial requirements of appendix FM.
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Mr Fouladvand submitted that in relation to the Immigration Rules the provision says family and social ties then as the wording says and, if one of them is absent then it must be unreasonable to expect the person to relocate. Both family and social ties must be present. This is a loophole of the Immigration Rules. I asked Mr Fouladvand if he had any authority for this proposition. He could not refer me to any.
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Mr Fouladvand also submitted that the judge did not find that the letter from the employer was false. As long as the judge could find that the payslips etc. were genuine the judge should have given due weight to the fact that there was no negative effect on the economic well-being of the country. In the absence of negative findings the judge’s conclusions at paragraph 46 of the decision are flawed.
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Mr Fouldavand argued that there was a fundamental error by the judge. In essence his argument was that the judge having noted that the maintenance of effective immigration control is an aspect of the well-being of the country then there was a major problem as the presence of the appellant is not a burden on the economic well-being of the country. Article 8(2) does not have immigration control as an aim so it can only be considered as part of the economic well-being category. It is clear in this case that the judge erred by concluding that the economic well-being of the country...
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