Upper Tribunal (Immigration and asylum chamber), 2021-08-02, HU/00398/2020
| Jurisdiction | UK Non-devolved |
| Date | 02 August 2021 |
| Published date | 17 August 2021 |
| Hearing Date | 01 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/00398/2020 |
Appeal Number: HU/00398/2020 (V)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00398/2020 (V)
THE IMMIGRATION ACTS
|
Heard at Cardiff Civil Justice Centre |
Decision & Reasons Promulgated |
|
Remotely by Microsoft Teams |
On 2 August 2021 |
|
On 1 July 2021 |
|
Before
UPPER TRIBUNAL JUDGE GRUBB
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
Omninder Pal
Respondent
Representation:
For the Appellant: Mr A McVeety, Senior Home Office Presenting Officer
For the Respondent: Mr A Mian, instructed by Bhavsar Patel Solicitors
DECISION AND REASONS
-
Although this is an appeal by the Secretary of State, for convenience I will refer to the parties as they appeared before the First-tier Tribunal: Omninder Pal (appellant), Secretary of State for the Home Department (respondent).
Introduction
-
The appellant is a citizen of India who was born on 2 May 1990.
-
The appellant arrived in the United Kingdom on 8 April 2012 with entry clearance as a Tier 4 (General) Student valid until 15 August 2013. His leave as a Tier 4 Student was subsequently extended until 29 December 2014. However, on 15 October 2014, his leave was curtailed to 19 December 2014 because his college had lost its sponsor status.
-
On 12 December 2014 the appellant applied for further leave to remain as a spouse. That leave was granted on 5 May 2015 valid until 5 November 2014. On 17 October 2017, the appellant applied for an extension of that leave which was initially refused on 3 May 2018 with an out of country right of appeal. That decision was reconsidered and on 11 January 2019, a new decision refusing him leave as a spouse was made with an in-country right of appeal. On 24 January 2019, the appellant appealed to the First-tier Tribunal. Following a hearing, at which the appellant did not attend, his appeal was dismissed on 10 July 2019 and an application for permission to appeal was refused on 18 October 2019. He became appeal rights exhausted on 4 November 2019.
-
On 13 November 2019, the appellant applied for leave to remain on the basis of Art 8 of the ECHR. On 9 December 2019, that application was refused by the Secretary of State.
-
The appellant again appealed to the First-tier Tribunal. In a decision sent on 31 March 2020, Judge J W H Law allowed the appellant’s appeal under Art 8 of the ECHR.
The Appeal to the Upper Tribunal
-
The Secretary of State sought permission to appeal to the Upper Tribunal on the basis that the judge had failed properly to carry out the balancing exercise under Art 8, in particular had failed properly to take into account the public interest. Further, the judge had been wrong to apply the “Chikwamba principle” (Chikwamba v SSHD [2008] UKHL 40) and concluded that it was disproportionate to require the appellant to return to India to seek entry clearance when the appellant could not establish that entry clearance would be granted on the basis that he met all the requirements of the spouse Rules.
-
Permission to appeal was initially refused by the First-tier Tribunal (Judge Bulpitt) on 13 August 2020.
-
On renewal, the Upper Tribunal (UTJ Rimington) granted the Secretary of State permission to appeal on the basis that the judge had arguably failed to take into account the public interest factors having regard to the fact that he had found that there were not insurmountable obstacles to the appellant and his spouse continuing family life in India and that an application for entry clearance was not bound to succeed.
-
Subsequently, the Secretary of State filed what is described as a rule 24 response, but which is in substance (as the Secretary of State is the appellant in the Upper Tribunal) an application to amend the grounds of appeal to add a further ground. That contends that the judge was wrong not to permit the Presenting Officer at the First-tier hearing to withdraw the concession that the appellant and spouse had a “genuine and subsisting” relationship.
-
The appeal was listed for a remote hearing by Microsoft Teams at the Cardiff Civil Justice Centre on 1 July 2021. I was based at the Cardiff CJC and Mr McVeety, who represented the Secretary of State, and Mr Mian, who represented the appellant, joined the hearing remotely by Microsoft Teams.
The Judge’s Decision
-
Before Judge Law, the Presenting Officer sought to withdraw the concession in the decision letter that the appellant and his wife had a “genuine and subsisting relationship”.
-
Initially, the Presenting Officer sought an adjournment of six weeks in order that the decision could be reconsidered in the light of the fact that the decision under appeal failed to take account of the earlier appeal decision in which it had been accepted that the marriage between the appellant and sponsor was a marriage of convenience and not genuine. That application was opposed by the appellant’s representative and the judge, applying the overriding objective of dealing with the case fairly and justly, concluded that it would not be fair to adjourn the hearing for a lengthy period when it would have been open to the Presenting Officer to withdraw the decision under appeal if he thought it was incorrect (see paras 5 – 7 of the decision).
-
In the light of that decision, and that the appeal hearing should proceed, the judge declined to allow the Presenting Officer to cross-examine the appellant and sponsor on the basis that the marriage was not genuine as that was incompatible with the respondent’s decision letter (see para 7 of the decision). The judge went on to conclude that the concession made by the respondent in the decision letter could not properly be withdrawn.
-
Having done so, and having heard the appellant and sponsor give oral evidence, the judge made a number of findings.
-
First, he concluded that, applying para EX.1 of Appendix FM, it had not been established that there were “insurmountable obstacles” to the appellant and his wife continuing their family life in India (see para 20 of the decision).
-
Having reached that conclusion, the judge also went on to conclude that he was not satisfied that there were “very significant obstacles” to the appellant’s integration in India under para 276ADE(1)(vi) of the Rules.
-
Having, therefore, concluded that the appellant could not succeed under the Immigration Rules, the judge went on to consider whether the appellant could succeed under Art 8 outside the Rules. The judge accepted, on the basis of the concession, that the appellant and his wife had a “genuine and subsisting relationship” and therefore had “family life” for the purposes of Art 8.1 of the ECHR and that the appellant’s removal would interfere with that family life.
-
The judge then went on to consider whether the interference was proportionate having regard to the public interest. At para 30, the judge said this about s.117B of the Nationality, Immigration and Asylum Act 2002:
“With regard to the amended Sections 117B of the 2002 Act, I do not know whether the appellant is able to speak English and he is not financially independent, being supported by friends: Section 117B(2) and (3). With regard to Section 117B(4), their relationship was established while the appellant had leave to remain. With regard to Section 117B(5), I am required to give little weight to the appellant’s private life in the UK.”
-
Then at para 31, the judge cited and summarised the House of Lords’ decision in Chikwamba that it would not generally be proportionate to require an individual to leave the UK in order to seek entry clearance which would be granted.
-
At paras 34 – 38, the judge gave his reasons for allowing the appeal on the basis that the decision to remove the appellant was disproportionate:
“34. I have found that there would not be insurmountable obstacles to the family life of this appellant and his wife continuing in India. However, the question at the heart of this appeal is whether it would be proportionate to expect the appellant to go there either with his wife or on his own solely for the purpose of making an entry clearance application.
35. The Supreme Court indicated in Agyarko (page 51) that there may be no public interest in the removal of an appellant who is certain to be granted leave to enter leave to enter if an application was made outside the UK. In this case, I have no information about the accommodation or maintenance arrangements so it cannot be said that an application by the appellant for entry clearance from India would be bound to succeed. Considerations relating the best interests of children are not relevant in this case.
36. Miss Brankovic submitted that there would be ‘unjustifiably harsh consequences’, as referred to in paragraph GEN.3.2. of Appendix FM, due to the limited accommodation and lack of job prospects, coupled with the fact that the appellant had lived in the UK for a number of years and had been granted leave to remain as a spouse in 2015. As referred to in the grounds of appeal, she submitted that there was an element of perverseness in the respondent’s decision-making process, since it was no longer being claimed that the marriage was one of convenience.
37. If the appellant...
To continue reading
Request your trial