Upper Tribunal (Immigration and asylum chamber), 2019-04-15, HU/16543/2017 & HU/16545/2017

 
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Appeal Numbers: HU/16543/2017

HU/16545/2017



Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: HU/16543/2017

HU/16545/2017



THE IMMIGRATION ACTS



Heard at Field House

Decision & Reasons Promulgated

On 20 March 2019

On 15 April 2019





Before


DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT


Between


MRS M O Y – 1st Appellant

AM - 2nd Appellant

(Anonymity order not made)

Appellants

and


ENTRY CLEARANCE OFFICER – (UKVS SHEFFIELD)

Respondent


Representation:


For the Appellants: Mr G Maurantonis of Counsel

For the Respondent: Ms J Isherwood Home Office Presenting Officer



DECISION AND REASONS


The Appellants


  1. The Appellants are both citizens of Nigeria. The first Appellant who I shall refer to as the Appellant is the mother of the 2nd Appellant AM. The Appellant was born on 20 March 1972 and AM was born on 17 October 2012. They both appeal against a decision of Judge of the First-tier Tribunal Rhys-Davies sitting at Hatton Cross on 14 November 2017 in which he dismissed their appeals against decisions of the Respondent dated 2 November 2017. Those decisions were to refuse the Appellants applications for entry clearance under Appendix FM of the Immigration Rules and outside those rules under Article 8, (right to respect for private and family life). The Appellant wished to join her husband Mr [HO] (“the sponsor”) a British citizen present and settled in the United Kingdom. AM wished to travel with her mother as her dependent. At first instance it was agreed that AM’s appeal would stand or fall in line with the Appellant’s appeal.


The Appellants’ Case


  1. The Appellant’s case was set out by the Judge at [14] to [32] of the determination. In summary the Appellant had travelled to the United Kingdom in 2011 where she had a relationship with a man that lasted until her return to Nigeria on 2 April 2012. She became pregnant by this relationship and her marriage to her husband broke down. She returned to the United Kingdom in September 2012 and AM was born here in October of that year. In 2013 the Appellant met the sponsor and they began a relationship. The Appellant overstayed her visit visa by a few days and was advised to return voluntarily to Nigeria. She had lost her passport so needed to obtain a travel document and she used the same surname as AM. The Appellant left the United Kingdom on 14 April 2013 after being questioned by immigration officers about the identity on her travel document.


  1. She changed her name from her married name to the surname [Y]. She kept in contact with the sponsor who travelled to Nigeria in April 2015 and the parties married. She then applied for entry clearance as the sponsor’s spouse in April 2016 which was refused in June 2016 because there were outstanding NHS charges incurred when the Appellant gave birth to AM. The Appellant and the sponsor remained in daily contact since then and there was a further visit to Nigeria by the sponsor in May 2018. The sponsor paid the outstanding NHS charges. The Appellant supported herself from her own business after returning to Nigeria. She currently lives in Lagos in a home owned by her family where they have a maid. The Appellant’s parents had not come to her wedding due to insufficient time.


The Decision at First Instance


  1. The Judge began his findings and conclusions at [50]. He rejected the Respondent’s argument that the Appellant’s passport submitted in 2016 was not genuine. This meant that paragraph 320 (3) of the Immigration Rules (which imposes a mandatory refusal where a document establishing identity has not been produced) was not substantiated. He held that for the Respondent to succeed under paragraph 320 (11), which is a discretionary refusal, with a four-stage process, the Respondent had to show both that the Appellant had overstayed and had contrived in a significant way to frustrate the intentions of the Immigration Rules.

  2. The Judge attached weight to the fact that the Appellant had not overstayed, as she had claimed, by a matter of days but rather of months. She arrived in September 2012 but did not leave until April 2013 when she should have left in February of that year. This was two months or 33% longer than her visit visa permitted. The explanation given by the Appellant for not abiding by the requirements of her visit visa lacked material detail. The sponsor could add nothing useful to that. The Appellant was in an emotional state after the birth of AM but that did not explain the failure to leave the United Kingdom. The Respondent had thus proved the 2nd stage.


  1. The 3rd stage was to determine whether there were aggravating circumstances. Although the Judge did not consider that the Appellant’s recourse to NHS treatment would amount to an aggravating feature, he did consider that the Appellant’s use of a false name on the emergency travel document she was using when leaving the country would amount to such. It was inherently unlikely that the Nigerian High Commission staff would have suggested the use of a false identity. The use of a false name for innocent purposes was unnecessarily complicated and made no sense. AM’s birth certificate would bear the Appellant’s name as AM’s mother. There would be no need for the Appellant to worry about having a travel document in her own name with a different family name to that of AM. The Appellant’s travel document also bore a different date of birth but the Appellant’s explanation that this was an error was rejected by the Judge.


  1. The Respondent had properly applied the exercise of discretion under paragraph 320(11) and the Judge directed himself that it was not open to him to review that exercise of discretion, relying on the case of Ukus [2012] UKUT 307. The burden of proof was on the Appellant to show that the relationship between her and the sponsor was genuine and was subsisting. For the reasons given by the Judge at [73] to [79] he did not find that to be the case. The time the couple had spent in each other’s company had been very short and it was reasonable to expect to see some documentary evidence of contact throughout the period they had been apart. There was no explanation why they had spent so little time together since the Appellant had left the United Kingdom. The explanation as to why the Appellant’s parents had not attended the wedding, given by the sponsor, lacked credibility.


  1. The Judge found that the Appellant could not succeed under Article 8 outside the rules because the relationship was not genuine and subsisting. However even if it was any interference with family life was proportionate because it could continue as it was at present. There was no evidence about the sponsor’s relationship with his own children in the United Kingdom in so far as those relationships needed to be considered if deciding whether the sponsor might go to Nigeria to be with the Appellant. The sponsor could travel to Nigeria, it was not a country of which he had no knowledge at all. He might want or need to find employment, but he would not be handicapped on the job market. The appeal was dismissed.



The Onward Appeal


  1. The Appellant appealed against this decision in grounds settled by counsel who had appeared at first instance. The first ground took objection to the finding that the Appellant had contrived to significantly frustrate the Immigration Rules. That finding was said to be based on errors of fact and law. The Appellant had only overstayed by one month not two. She should have left the United Kingdom by 14 March 2013 not, as the Judge found, by 14 February. This was material because the Judge had attached significant weight to the period of overstaying. A period of up to 28 days should be overlooked when calculating lawful residence. Since the overstaying was less serious than the Judge believed it to be, it followed that the true facts might demonstrate that she had not contrived in a significant way to frustrate the intention of the Rules.


  1. The Appellant was not in the United Kingdom illegally when she met the sponsor. According to the jurisprudence, some pragmatism in interpreting paragraph 320(11) was desirable because if the aggravating circumstances were not truly aggravating there was a serious risk that those in the position of someone like the Appellant would continue to remain in the United Kingdom unlawfully.


  1. Ground 2 complained that there were no explicit credibility findings against the sponsor and there was a flawed assessment of the relationship which was genuine and subsisting. If the Judge were to reject the sponsor’s account of the relationship, he would have had to have made adverse credibility finding. The Judge had required corroboration of the Appellant’s evidence and had found the Appellant’s evidence not credible, but he had not said that he found the sponsor lacking in credibility or that the sponsor’s evidence should be approached with caution as he had with the Appellant’s evidence. The Judge could not...

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