Upper Tribunal (Immigration and asylum chamber), 2020-01-02, HU/15836/2018
| Jurisdiction | UK Non-devolved |
| Date | 02 January 2020 |
| Published date | 28 February 2020 |
| Hearing Date | 13 November 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/15836/2018 |
Appeal Number: HU/15836/2018
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Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: HU/15836/2018
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THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 13 November 2019 |
On 2 January 2020 |
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
najet saadi
(ANONYMITY DIRECTION not made)
Appellant
and
ENTRY CLEARANCE OFFICER,
Sheffield
Respondent
Representation:
For the Appellant: Ms Katambala of Ben Darlington Solicitors
For the Respondent: Mr Tufan, Senior Presenting Officer
DECISION AND REASONS
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The appellant is an Algerian national who was born on 23 November 1979. She appeals, with permission granted by First-tier Tribunal Judge Saffer, against a decision which was issued by First-tier Tribunal Judge Lucas on 4 July 2019. In that decision, Judge Lucas (“the judge”) dismissed the appellant’s appeal against the respondent’s refusal of her application to enter the United Kingdom as the spouse of a British citizen.
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The sponsor is Lahcene Chafai, a British citizen who was born on 21 June 1970. The appellant and the sponsor married in Algeria on 29 August 2013. They have three British children: S (aged 4), M (aged 3) and A (aged 2). The children live with the appellant in Algeria.
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The appellant applied for entry clearance on 13 March 2018. She gave her details and those of the sponsor and their children. She stated that she planned to live permanently with the sponsor and their children at his address in North London. The sponsor was said to be in receipt of benefits which disapplied the Minimum Income Requirement (“MIR”) in Appendix FM of the Immigration Rules. The appellant was said to be exempt from the English Language Requirement in that Appendix because she had learning difficulties.
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The respondent refused the application on 5 July 2018. Although she accepted that the appellant was exempt from the MIR because the sponsor was in receipt of relevant benefits, she did not accept that there was available to the family a sum which was adequate when compared to the amount which would be received by a family of comparable size on income support. The respondent then considered the English Language requirement. She noted that the appellant had dyslexia and dysgraphia but she was not satisfied that this diagnosis would have an impact on the appellant’s ability to take an appropriate English language test. The application was accordingly refused under Appendix FM. The refusal went on to consider, in what can only be described as pro-forma terms, the question of whether the ongoing exclusion of the appellant was in breach of Article 8 ECHR. The respondent concluded that it was not.
The Appeal to the First-tier Tribunal
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The grounds of appeal to the FtT noted that the respondent had failed to give adequate consideration to Article 8 ECHR, particularly given that the appellant had fallen short of the sum considered to be adequate by only £33 per week. The grounds asserted that the medical certificate had not been considered by the ECO. These grounds were reviewed by an Entry Clearance Manager on 17 January 2019 but the ECM was not persuaded to alter or reverse the decision.
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The appeal came before the judge, sitting at Taylor House on 11 June 2019. The appellant was represented by a solicitor (not Ms Katambala), the respondent was neither present nor represented. The judge was presented with a bundle of 36 pages from the appellant. He heard evidence from the sponsor, who merely adopted his short witness statement. The appellant’s solicitor made a brief submission after which the judge ‘reserved the appeal for determination’. I am unable to attribute that part of the judge’s decision to a specific paragraph because he eschewed paragraph numbers in favour of bullet points throughout his decision.
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In his reserved decision, the judge found that the ECO had erred in her consideration of the Financial Requirements because, in calculating whether the available funds were adequate, she had taken account of the children. The judge held that this was an error on the part of the ECO because the children were ‘UK citizens and have the same benefits of citizenship as any other citizen’.
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Turning to the English Language Requirement, the judge accepted (as had the ECO) that the appellant suffers from dyslexia and that she may have some difficulty with comprehension when writing or understanding words. There was no evidence to show what, if any efforts had been made by the appellant to take the test. Dyslexia, he noted, did not prevent a person from taking examinations. There was no evidence from an independent third party to show that she was ‘physically prevented’ from taking the test. Then, above the final sentence of the decision, there is this paragraph:
It is accepted that the Appellant is married to the sponsor. However, the Appellant lives in Algeria with her three children and cannot yet satisfy the Rules with regard to English Language. It is also accepted that the sponsor has some medical issues but he is assisted with them by other family members in the UK.
The Appeal to the Upper Tribunal
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Permission to appeal was sought on the basis that the judge had failed to give any meaningful consideration to Article 8 ECHR or to the best interests of the British children involved. It was submitted that ‘the entire edifice of the judge is vicious by material error of law and reconsideration is therefore sought’. (Ms Katambala apologised before me for the substitution of ‘vicious’ for ‘vitiated’ but it remains unclear why there is a reference to the process of reconsideration, which was removed from the 2002 Act nearly a decade ago.) Be that as it may, permission was ultimately granted by Judge Saffer, who was satisfied that the failure by the judge to consider the article 8 rights of the British children residing in Algeria with their mother was arguably a material error of law.
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Before me, Mr Tufan accepted that the judge had materially erred in law in dismissing the appeal without any consideration of Article 8 ECHR or the best interests of the children. I considered that to be a concession properly made and indicated that I would set aside the judge’s decision insofar as it purportedly dismissed the appeal on Article 8 ECHR grounds.
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I asked the advocates whether I should remake the decision on the appeal for myself and, if so, whether there was a need for another hearing on a future date. Mr Tufan was content for me to remake the decision immediately. Ms Katambala was also content for me to do so.
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The advocates agreed that there had been no appeal against the adverse findings in relation to the English Language Requirement. I suggested that it would be my task to consider the significance of that conclusion in light of Bibi [2015] UKSC 68; [2015] 1 WLR 5055 and to balance all relevant considerations weighing for and against the appellant’s admission. Unfortunately, Ms Katambala was unaware of the decision in Bibi and required some time to consider it, which I readily gave. On resuming the hearing, she confirmed that she was ready to proceed. She wished to adduce no further documentary evidence but she intended to call the sponsor to give evidence.
Oral Evidence
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The sponsor adopted the brief witness statement which he had made for the hearing before the FtT. He said that the appellant had tried to do the English test six or seven times but that she had dyslexia. The children were with her in Algeria. He was unable to look after them because of his own disabilities. The eldest child was due to start school next year.
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Cross-examined by Mr Tufan, the sponsor stated that he and his wife had married in 2013 and had always lived apart. He stated that his wife had difficulty in learning French and could only speak Arabic. He said that she had been to English classes but she was unable to pass the test due to her dyslexia.
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There was no re-examination. I asked the sponsor some further questions in order to understand the position of the children. He said that his wife and children lived in his father’s house in Algiers. His father had disappeared in 1995, during the civil war. His mother had died in 2001. He has four sisters, two of whom lived in the house with his wife and children. He had paid for his wife to take private English lessons at a school. He thought that this was between 2012 and 2013 and that she had stopped the lessons in 2013.
Submissions
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Mr Tufan relied on [89] of SS (Congo) [2015] EWCA Civ 387; [2016] 1 All ER 706 and submitted that it was entirely proportionate to expect the appellant to make another application for entry clearance in which she sought to address the English Language Requirement (“ELR”) properly. The decision in Bibi did not take matters any further; there might be cases in which it was disproportionate to refuse admission to a person who had failed the ELR but this was not one of those cases. The ELR existed to further the plainly legitimate aim of...
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