Upper Tribunal (Immigration and asylum chamber), 2022-05-11, HU/20215/2019
| Appeal Number | HU/20215/2019 |
| Hearing Date | 17 March 2022 |
| Published date | 26 May 2022 |
| Date | 11 May 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: HU/20215/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/20215/2019
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 17 March 2022 |
On 11 May 2022 |
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Before
UPPER TRIBUNAL JUDGE ALLEN
DEPUTY UPPER TRIBUNAL JUDGE MALIK QC
Between
alfonc beqiri
(ANONYMITY DIRECTION not made)
Appellant
and
SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Ms Sonia Ferguson, Counsel, instructed by Freemans Solicitors
For the Respondent: Ms Susana Cunha, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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This is remaking of the decision in the Appellant’s appeal against the Secretary of State’s decision of 25 November 2019 to refuse his human rights claim based on Article 8 of the European Convention on Human Rights.
Factual background
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The Appellant is a citizen of Albania and was born on 23 May 1988. He arrived in the United Kingdom illegally on 29 February 2016.
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The Appellant made an application for leave to remain in the United Kingdom on the basis of his marriage with Mrs Ledi Lulaj on 31 July 2019. Mrs Lulaj is a British citizen born on 1 November 1995. The Appellant and Mrs Lulaj married on 12 July 2019.
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The Secretary of State refused the Appellant’s application on 25 November 2019. The Secretary of State stated that the Appellant does not meet the immigration status requirement as he had entered the United Kingdom illegally. The Secretary of State also stated that there were no insurmountable obstacles to the Appellant’s family life with Mrs Lulaj continuing outside the United Kingdom. The Secretary of State accordingly held that the Appellant was not entitled to leave to remain on the grounds of his family life under Appendix FM to the Immigration Rules. The Secretary of State also held that the Appellant was not entitled to leave to remain on the grounds of his private life under Paragraph 276ADE(1) of the Immigration Rules. The Secretary of State concluded that there were no exceptional circumstances and the Appellant’s removal from the United Kingdom would be compatible with Article 8.
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First Tier Tribunal Judge Swinnerton heard the Appellant’s appeal from the Secretary of State’s decision on 2 March 2020 and allowed it in a decision promulgated on 9 March 2020. Judge Swinnerton, at [23], held that “it would be disproportionate to require the Appellant to return to Albania to apply for entry clearance as a partner particularly as there appears to be every indication that such application would be successful”. On that basis, Judge Swinnerton concluded that the Appellant’s removal from the United Kingdom would be incompatible with Article 8.
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Upper Tribunal Judge Allen heard the Secretary of State’s appeal from Judge Swinnerton’s decision on 17 March 2021 and set aside it in a decision promulgated on 12 May 2021. Judge Allen held that the judgment in Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 [2009] 1 All ER 363, which was relied upon by the Appellant, was distinguishable. Judge Allen concluded that Judge Swinnerton’s decision was wrong in law. Judge Allen preserved the unchallenged findings made by Judge Swinnerton at [20]-[22] and retained the appeal for the purpose of remaking of the decision.
Resumed hearing
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We are grateful to Ms Ferguson who appeared for the Appellant, and Ms Cunha, who appeared for the Secretary of State, for their assistance and able submissions.
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The documents before us included the Appellant’s bundle, the Appellant’s supplementary bundle, the Secretary of State’s bundle and Ms Ferguson’s skeleton argument.
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The Appellant and Mrs Lulaj gave oral evidence by adopting their witness statements. They were cross-examined by Ms Cunha. We then heard closing submissions from Ms Ferguson and Ms Cunha respectively. We shall refer to the evidence and submissions as appropriate in our findings.
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We reserved our decision at the conclusion of the resumed hearing.
Grounds of appeal
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The sole ground of appeal is that the Secretary of State’s decision is unlawful as being incompatible with Article 8.
Findings
Entitlement under the Immigration Rules
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Section E-LTRP of Appendix FM to the Immigration Rules sets out the eligibility requirements for leave to remain as a partner. These requirements are in four parts, namely, the relationship requirements, the immigration status requirements, the financial requirements and the English language requirements. Ms Cunha accepted that the Appellant meets the relationship requirements and the financial requirements. Ms Ferguson, on the other hand, accepted that the Appellant does not meet the immigration status requirements and the English language requirements. It is therefore common ground that the Appellant does not meet the eligibility requirements for leave to remain as a partner.
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Section EX of Appendix FM to the Immigration Rules sets out certain exceptions to the eligibility requirements for leave to remain as a partner. Paragraph E.X.1(b) applies if:
“the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen … and there are insurmountable obstacles to family life with that partner continuing outside the UK”.
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Paragraph E.X.2 adds that:
“… insurmountable obstacles means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”
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Ms Ferguson’s skeleton argument does not suggest that the Appellant was able to meet this requirement. In her oral submissions, she accepted that there were no insurmountable obstacles to the Appellant’s family life with Mrs Lulaj continuing outside the United Kingdom. Accordingly, no exception from the eligibility requirements for leave to remain as a partner applies in this appeal.
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In the circumstances, the Appellant is not entitled for leave to remain under the Immigration Rules on the grounds of his family life with Mrs Lulaj.
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Paragraph 276ADE(1) of the Immigration Rules set outs the requirements for leave to remain on the grounds of private life. Sub-paragraph (vi) provides:
“… [the applicant] is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.”
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Ms Ferguson’s skeleton argument does not suggest that the Appellant was able to meet this requirement. In her oral submissions, she accepted that there were no very significant obstacles to the Appellant’s integration in Albania on return.
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In the circumstances, the Appellant is not entitled to leave to remain under the Immigration Rules on the grounds of his private life.
Article 8
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We consider the Appellant’s claim by reference to five questions identified in Razgar v Secretary of State for the Home Department [2004] UKHL 27 [2004] 3 All ER 821, at [17]. First, will the proposed removal be an interference by the Secretary of State with the exercise of the Appellant’s right to respect for his private or family life. Second, if so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8. Third, if so, is such interference in accordance with the law. Fourth, if so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others. Fifth, if so, is such interference proportionate to the legitimate public end sought to be achieved.
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We answer the first four questions in the affirmative. There is no dispute that the Appellant’s marriage with Mrs Lulaj is genuine and subsisting. The Appellant has a private and family life in the United Kingdom. The Secretary of State’s decision amounts to an inference with that life and is of such gravity so to engage the operation of Article 8. We bear in mind, as emphasised in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801 [2008] 2 All ER 28, at [28], and VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5 [2009] Imm AR 436, at [22], that the threshold for engagement of Article 8 is low. It merely requires more than a technical or inconsequential interference with one of the protected rights. This threshold, in our judgment, is met in this case. The interference caused by the Secretary of State’s decision is in accordance with the law and is necessary in a democratic society in the interests of the economic well-being of the United Kingdom. The real issue in this...
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