Upper Tribunal (Immigration and asylum chamber), 2020-11-11, HU/06958/2019
| Jurisdiction | UK Non-devolved |
| Date | 11 November 2020 |
| Published date | 25 November 2020 |
| Hearing Date | 20 October 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/06958/2019 |
Appeal Number: HU/06958/2019 (P)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06958/2019 (V)
THE IMMIGRATION ACTS
|
Heard at Field House via Skype for Business |
Decision & Reasons Promulgated |
|
On Tuesday 20 October 2020 |
On 11 November 2020 |
Before
UPPER TRIBUNAL JUDGE SMITH
Between
ALI [A]
Appellant
and
ENTRY CLEARANCE OFFICER, SHE/1177278
Respondent
Representation
Ms S Jegarajah, Counsel instructed by IMK Solicitors for the Appellant
Mr T Melvin, Senior Home Office Presenting Officer
DECISION
BACKGROUND
1. By a decision promulgated on 19 August 2020, I found an error of law in the decision of First-tier Tribunal Judge JWH Law. I therefore set aside that decision and gave directions for the re-making of the decision. My error of law decision is annexed hereto for ease of reference.
2. I gave the Appellant the opportunity to file further evidence in support of his appeal. A supplementary bundle was filed on 17 September 2020 and a further letter from the Appellant’s stepdaughter was filed on 15 October 2020. I refer to the documents in the supplementary bundle as [ABS/xx]. I also have before me the Appellant’s bundle before the First-tier Tribunal which I refer to as [AB/xx].
3. The hearing before me was conducted via Skype for Business. There were no technical issues and the advocates confirmed that they were able to follow the proceedings throughout. Both the Appellant and his spouse, [Z] (hereafter referred to as “the Sponsor”) joined the hearing remotely but I did not hear evidence from them as Mr Melvin indicated that he did not wish to cross-examine them.
THE ISSUES AND LEGAL FRAMEWORK
4. As I identified at [3] of my error of law decision, the Sponsor is not settled in the UK. She was granted limited leave to remain on 5 June 2015. The Appellant has now provided evidence as to the basis on which she was granted that leave. The Sponsor confirms that leave was granted to her as the dependent of her parents who were, in turn, granted leave due to the presence in the UK of the Sponsor’s minor siblings. As such, both the Sponsor and the Appellant’s stepdaughter are Pakistani nationals and neither can provide the necessary relationship and status to fulfil the grant of leave to remain within Appendix FM to the Immigration Rules (“the Rules”). Indeed, the Sponsor’s own leave to remain is now due for renewal. She has only recently made an application for further leave to remain which has yet to be considered. It may well be that, in time, the position of the Appellant’s stepdaughter will give rise to a separate basis for the grant of leave to remain (as she is now aged over seven years) but that is not the basis upon which leave has been granted at present.
5. The issue therefore is whether the decision to refuse the Appellant entry clearance is disproportionate on the basis that it causes unjustifiably harsh consequences. The following paragraphs of Appendix FM are nonetheless relevant:
“GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.
(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.
(3) Where the exceptional circumstances referred to in sub-paragraph (2) above apply, the applicant will be granted entry clearance or leave to enter or remain under, as appropriate, paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1., D-LTRC.1.1., D-ECPT.1.2., D-LTRPT.1.2., D-ECDR.1.1. or D-ECDR.1.2.
(4) ….
GEN.3.3.(1) In considering an application for entry clearance or leave to enter or remain where paragraph GEN.3.1. or GEN.3.2. applies, the decision-maker must take into account, as a primary consideration, the best interests of any relevant child.
(2) In paragraphs GEN.3.1. and GEN.3.2., and this paragraph, “relevant child” means a person who:
(a) is under the age of 18 years at the date of the application; and
(b) it is evident from the information provided by the applicant would be affected by a decision to refuse the application.”
6. As I indicated in the course of the hearing, the central dispute in this case is whether family life between the Appellant, Sponsor and her child can be expected to be continued in Pakistan (permanently or via visits as now) or whether there are obstacles such that it cannot be. Against that, dealing with the Respondent’s case, the issue is whether the public interest requires that entry clearance be refused and if so the extent of that public interest. Outside the Rules (which is the only basis on which the Appellant can succeed), the issue is whether the interference with family life gives rise to unjustifiably harsh consequences (see Agyarko and Ikuga v Secretary of State for the Home Department [2017] UKSC 11 – “Agyarko” - at [19])
7. I will come on in due course to the reasons why it is said that family life cannot be continued in Pakistan. In terms of the legal position, I accept Mr Melvin’s submission that the State has the right to control the entry of non-nationals even where family life has been established. That position dates back to at least the cases of Abdulaziz, Cabales and Balkandali v UK (application no 9214/80). However, as those cases also recognise, the State may have, in appropriate circumstances, the positive obligation to permit entry to allow family life to be continued. As the law has since developed, the essential question when considering whether that positive obligation arises is whether there are “insurmountable obstacles” to family life being pursued outside the UK (see, for example, Agyarko at [42] of the judgment – although that was a removals case, the same principles apply by analogy).
8. In terms of the public interest in refusing entry clearance, although, as Ms Jegarajah submitted, the Appellant and Sponsor have followed the legal procedures for seeking entry clearance and have not sought to circumvent the Rules, there is, as Mr Melvin submitted, a public interest in refusing entry where the Rules are not met. In this case, the Rules are not and cannot be met due to the Sponsor’s status. She has only limited leave to remain and not indefinite leave to remain. I accept, as Mr Melvin submitted, that to hold that an individual with limited leave should be allowed to sponsor the application for entry of a partner in every case, would drive a coach and horses through the Rules. Indeed, Ms Jegarajah recognised as much. The issue is whether the circumstances of this case are sufficiently exceptional to permit that course. Mr Melvin very helpfully indicated that the Respondent did not rely on any other aspect of the public interest. No issue is taken regarding the financial circumstances of the couple or in relation to Mr [A]’s ability to speak English for example.
9. I recognise however that the Sponsor’s lack of settled status is not insignificant. It is a particular difficulty in this case because, as I observed at [4] above, she has recently made an application for further leave. Although that was an in-time application and therefore her leave continues under Section 3C Immigration Act 1971 until it is decided, as Mr Melvin pointed out, the Respondent has not yet examined that application nor decided that the Sponsor’s leave and that of her daughter should be continued.
10. Leading on from that observation, the other crucial aspect of this case, not least as to the obstacles to family life continuing in Pakistan, is the position of the Sponsor’s child. The Respondent did not and does not accept that there is a genuine and subsisting parental relationship between the Appellant and his stepchild or that family life exists between the two. That is an issue which I must determine. However, irrespective of that issue, there is a child affected by my decision and I need to take into account that child’s best interests.
11. Section 55 Borders, Citizenship and Immigration Act 2009 (“Section 55”) provides that “[t]he Secretary of State must make arrangements for ensuring that (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”. Those functions include those which relate to immigration.
12. Those obligations are reflected in statutory guidance published by the Home Office entitled “Every Child Matters” (dated November 2009). Ms Jegarajah drew my attention in particular to [1.4] which reads as follows:
“Safeguarding and promoting the welfare of children is defined in the guidance to section 11 of the 2004...
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