Upper Tribunal (Immigration and asylum chamber), 2021-02-04, HU/20140/2019
| Jurisdiction | UK Non-devolved |
| Date | 04 February 2021 |
| Published date | 18 February 2021 |
| Hearing Date | 20 January 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/20140/2019 |
Appeal Number: HU/20140/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/20140/2019
THE IMMIGRATION ACTS
|
Heard at Bradford (via Skype) |
Decision & Reason Promulgated |
|
On 20 January 2021 |
On 4 February 2021 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
HANAN MOHADAD-ALI
(Anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Adebayo of A2 Solicitors.
For the Respondent: Mrs Pettersen Senior Home Office Presenting Officer.
DECISION AND REASONS
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In a decision promulgated on 13 October 2020 the Upper Tribunal set aside a decision of the First-tier Tribunal which allowed the appellant’s appeal on human rights grounds against the refusal of an application for leave to remain in the United Kingdom on the basis of her private and family life.
Background
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The appellant is a female citizen of Canada born on 22 September 1979.
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There are a number of preserved findings from the First-tier Tribunal (FTT) decision being the appellant’s immigration history, the finding the appellant is in a genuine and subsisting relationship with her partner, the finding the appellant cannot satisfy the requirements of the immigration rules for the reasons set out in the refusal, and the appellant’s first miscarriage and emotional reaction and the effect of the same upon her and her husband.
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In relation to the appellant’s immigration history, the appellant entered the United Kingdom as a visitor on 17 July 2019 but on 22 October 2019 made an application for further leave to remain as a spouse.
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The appellant underwent an Islamic marriage to Mr Haron Ayid Sallal a British national on 29 June 2019 after which they commenced cohabiting and married in accordance with the laws of the United Kingdom on 10 October 2019. The appellant claims to have been in a relationship since November 2017 which began when she visited her uncle in the UK and met Mr Sallal.
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The reason the appellant cannot satisfy the immigration rules is that although it was accepted the appellant could meet the suitability requirements, she cannot satisfy the eligibility immigration status requirements of paragraph E–LTRP.2.1 to 2.2 as she entered the United Kingdom as a visitor, a status from which switching is not permitted.
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In relation to EX.1 the decision maker wrote:
“EX.1. Requirement
We have considered whether you are exempt from meeting certain legibility requirements under Section R-LTRP of Appendix FM because paragraph EX.1 applies.
We have carefully considered whether paragraph EX.1 of Appendix FM applies to your application, and therefore whether you meet the requirements of paragraph R-LTRP.1.1(d)(iii) of Appendix FM.
You have a genuine and subsisting relationship with your British partner. The Secretary of State has not been any evidence that there are insurmountable obstacles in accordance with paragraph EX.2. of Appendix FM which means the very significant difficulties which would be faced by you and your partner in continuing your family life together outside the UK in Canada, and which would not be overcome or would entail very serious hardship for you or your partner. You therefore failed to meet the requirements of EX.1(b) of Appendix FM of the Immigration Rules so paragraph EX.1 does not apply in your case.
In light of the above the Secretary of State is not satisfied that EX.1 applies to your case and so you do not meet the requirements of paragraph R-LTRP.1.1(d)(iii) of Appendix FM.
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In relation to paragraph 276 ADE, it was found the application did not fall for refusal on grounds of suitability in Section S-LTR but did in relation to eligibly as she had only lived in the UK for 98 days and had therefore not lived continuously in the UK for at least 20 years; meaning the appellant failed to satisfy the requirements of paragraph 276 ADE(1)(iii) of the Rules.
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There is no express exceptional circumstances provision in the private life rules, such as that found in EX.1 in relation to family life.
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It was also found that although the appellant was over 18 but under 25 years of age it had not been shown that she had spend at least half her life living continuously in the UK or that, even though aged 18 or above, there were very significant obstacles to her integration into Canada, the country she will return to if she were to leave the UK.
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The decision-maker did not accept there will be very significant obstacles to her integration into Canada, if she was required to leave the UK, because she had spent her formative years there and it is accepted that she will have retained knowledge of the life, language and culture, and would not face significant obstacles to reintegrating into life in Canada once more.
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In relation to the miscarriage, the FTT judge recorded the appellant’s evidence that at the time she made her application she did not know she was already pregnant. She lost the baby on 30 December when she was 11 weeks pregnant. The appellant stated she was devastated as this was her first child. The FTT judge also records the evidence of the appellant and her partner that they had gone through a difficult time as a result.
Discussion
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Paragraph E-LTRP.2.1. of the Rule states that an applicant must not be in the UK-
(a) as a visitor; or
(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings
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The appellant entered the UK as a visitor and so falls foul of this provision.
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Part 5A of the Nationality, Immigration and Asylum Act 2002 establishes the present regime under the rubric ‘Article 8 of the ECHR: Public Interest Considerations’. Section 117A of the 2002 Act addresses the application of the public interest regime; section 117B details the public interest considerations applicable in all cases; section 117C is concerned with additional considerations in deportation matters and interpretation is addressed at paragraph 117D. This is not a deportation case.
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Section 117A(3) relates to the application of the public interest. This Tribunal is required to carry out a balancing exercise to decide whether the proposed interference is proportionate, with due weight given to the strength of public interest in removal’. See R (Agyarko) v. Secretary of State for the Home Department [2017] UKSC 11.
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It is accepted the ‘little weight’ provisions of section 117B(4) and (5) involve a spectrum that within its self-contained boundaries will result in the measurement of the quantum of weight considered appropriate in the fact sensitive context of every case. See Kaur (children’s best interests/ public interest interface) [2017] UKUT 14 (IAC).
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In GM (Sri Lanka) v. Secretary of State for the Home Department [2019] EWCA Civ 1630 (4 October 2019) the Court of Appeal made the following observations about the test to be applied:
(a) the immigration rules and section 117B had to be construed to ensure consistency with art.8;
(b) national authorities had a margin of appreciation when setting the weighting to be applied to various factors in the proportionality assessment;
(c) the test for an assessment outside the immigration rules was whether a fair balance was struck between competing public and private interests;
(d) that proportionality test was to be applied to the circumstances of the individual case;
(e) there was a requirement for proper evidence;
(f) there was in principle no limit to the factors which might be relevant to an evaluation under article 8’.
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All relevant guidance has been carefully considered in assessing the merits of this appeal.
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Applying the structured approach set out in (R (Razgar) v. Secretary of State for the Home Department [2004] UKHL 27; it is not disputed the core question in this appeal has always been whether any interference in the family and private life relied upon by the appellant is proportionate to the legitimate aim relied upon by the Secretary of State, which is that of effective immigration control.
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The burden of establishing the decision is proportionate lies upon the Secretary of State.
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It is also necessary to consider the effect of the decision on all members of the family. See Beoku-Betts v. Secretary of State for the Home Department [2008] UKHL 38 . In this appeal the core family members are the appellant’s husband and his family in the UK.
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In relation to the appellant’s private life, Section 117B(5) is relevant in light of her precarious status. Case law has established that for the purposes of section 117B(5), anyone who, not being a citizen of the United...
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