Upper Tribunal (Immigration and asylum chamber), 2022-07-14, IA/01308/2021
| Appeal Number | IA/01308/2021 |
| Hearing Date | 20 May 2022 |
| Published date | 01 August 2022 |
| Date | 14 July 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: IA/01308/2021
UI-2021-001384 [HU/50338/2021]
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Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: IA/01308/2021 UI-2021-001384 [HU/50338/2021] |
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 20 May 2022 |
On 14 July 2022 |
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
JINGSHUN HUANG
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Biggs, instructed by JKR Solicitors
For the Respondent: Mr Kotas, Senior Presenting Officer
DECISION AND REASONS
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The appellant appeals, with permission granted by Designated Judge Shaerf, against the decision of First-tier Tribunal Judge Andrew Davies, who dismissed his appeal against the respondent’s refusal of his human rights claim.
Background
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The appellant is a Chinese national who was born on 24 March 1994. He entered the UK as a student in 2008 and was granted successive leave periods leave to enter or remain in that capacity until 19 January 2018. He was then granted leave to remain under Tier 2 of the Points Based System until January 2021. On 7 September 2018, however, the appellant applied for Indefinite Leave to Remain (“ILR”) on grounds of long residence under paragraph 276B of the Immigration Rules.
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The ILR application was refused on 12 March 2019 and the appellant’s existing leave to remain under Tier 2 was subsequently curtailed. The respondent concluded that the appellant had submitted a Certificate of Sponsorship (“COS”) to which he was not entitled in support of his Tier 2 application. It was alleged that he had submitted a COS from a firm called AIQ Consulting, whereas that company had confirmed to the Secretary of State that the appellant had never worked for them. The application was refused under paragraphs 322(5) and 276B(ii) and (iii) of the Immigration Rules accordingly. The respondent did not consider the appellant to have a claim under Appendix FM or paragraph 276ADE of those Rules, nor did she accept that his removal would be in breach of Article 8 ECHR.
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The appellant appealed against the refusal of ILR and his appeal was heard by First-tier Tribunal Judge Moore. In a decision which was issued on 2 September 2019, Judge Moore dismissed the appellant’s appeal. The judge found that the appellant knew that he had submitted a COS which was not genuine and that he was ‘a party to the fraud’. He therefore dismissed the appeal insofar as it was submitted that the appellant met the Immigration Rules. As it was not submitted that the appellant had a separate Article 8 ECHR claim outside the Rules, the appeal was dismissed.
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Permission to appeal against Judge Moore’ decision was refused by the First-tier Tribunal (Judge Manuell) and the Upper Tribunal (Judge Macleman). The appellant’s appeal rights were exhausted on 2 January 2020.
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Shortly thereafter, on 16 January 2020, the appellant made further submissions to the respondent, based on his relationship with his British partner. The respondent decided not to treat the further submissions as a fresh claim on 20 October 2020 but she agreed to reconsider that decision in response to a letter before claim.
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The respondent’s reconsidered decision was issued on 2 February 2021. She considered that the appellant fell for refusal on suitability grounds, under paragraph S-LTR 4.2 of Appendix FM, as a result of his previous deception. She did not accept that the appellant met the Relationship Requirement or the Immigration Status Requirement. The application was refused under the Five-Year Route accordingly. As for the Ten-Year Route, the respondent did not accept that the relationship was genuine and subsisting and she did not consider whether there were insurmountable obstacles to the continuation of family life in China. The respondent did not consider the appellant to have a private life claim or to have any residual Article 8 ECHR claim. The application was accordingly refused but the appellant was permitted a right of appeal.
The Appeal to the First-tier Tribunal
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The appellant’s second appeal came before Judge Andrew Davies (“the judge”), sitting at Manchester Piccadilly on 13 October 2021. The appellant was represented by Mr Biggs of counsel, as he was before me. The respondent was unrepresented. The judge heard evidence from the appellant, his partner and a character witness, Ms Yang. The judge heard submissions from Mr Biggs before reserving his decision. Those submissions were made in development of a detailed skeleton argument and in response to a review of the case prepared by the respondent in compliance with rule 24A(3) of the First-tier Tribunal (Immigration and Asylum Chamber) Rules 2014.
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The judge’s reserved decision was issued on 30 October 2021. At [5]-[16], the judge considered the issues in the case, which he summarised at [15]-[16]. The first was whether he was entitled to revisit Judge Moore’s finding that the appellant had been party to the fraud involving AIQ Consulting. The second was whether the appellant was dishonestly involved by relying on a false COS. The third issue was whether the appellant had been the victim of a historical injustice (perpetrated by the other participants in the fraud) such as to diminish the weight attached to immigration control. There were then the questions raised by paragraphs 276ADE(1)(vi) and EX1(b), of whether there were very significant obstacles to the appellant’s own integration to China and whether there were insurmountable obstacles to his relationship continuing in China. There was finally the question of ‘exceptional circumstances’, by which the judge referred to the resolution of the residual Article 8 ECHR claim outside the Immigration Rules.
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At [23]-[30], the judge reminded himself of the Devaseelan [2003] Imm AR 1 principles and of the findings reached by Judge Moore in 2019. At [31]-[57], the judge took careful account of the evidence adduced by the appellant in response to Judge Moore’s conclusion that the appellant had been a knowing participant in the fraud which procured the false COS. He noted the ‘comprehensive and skilful submissions’ made by Mr Biggs but he was unable to accept his description of the appellant ‘as an innocent dupe or that the appellant suffers from a personality disorder resulting in excessive naivety’: [57]. In reaching that conclusion, the judge attached particular significance to the fact that the appellant had taken no action when the job with AIQ Consulting had failed to materialise, which suggested that ‘he had achieved the result he wanted after obtaining the fraudulent COS’: [34] and [41]. The judge rejected the appellant’s claim to have little knowledge of the immigration system: [37]. He found the appellant’s claim of believing a man who hid behind the pseudonym ‘Dark Chocolate’ implausible: [28]. The additional evidence relied upon by the appellant (oral evidence from his partner and Ms Yang, an Action Fraud report, statements from former teachers and a report from a consultant psychiatrist) were all considered in detail by the judge. Having done so, he refused to depart from Judge Moore’s decision.
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In accordance with his summary of the issues, the judge then proceeded to consider whether there were very significant obstacles to the appellant’s reintegration to China. He concluded that there would be ‘significant adjustment difficulties but that these would not meet the elevated threshold required by the Immigration Rules: [58]-[71].
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At [72]-[76], the judge considered the range of difficulties which were advanced in support of the submission that there would be insurmountable obstacles to the continuation of family life in China. He was satisfied that the obstacles were of such a magnitude that they could fairly be described as insurmountable, and he directed himself to take that conclusion into account in his conclusion of proportionality under Article 8(2) ECHR.
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At [77], therefore, the judge turned to his assessment of Article 8(2). He noted his finding that the ‘requirements of the Immigration Rules cannot be met because of suitability grounds arising from the Appellant’s dishonesty’ and that what was required for such a case to succeed was ‘unjustifiably harsh consequences’. He recalled what had been said in R (Razgar) v SSHD [2004] UKHL 27; [2004] 2 AC 368 about the need for a staged approach to Article 8. The judge was satisfied that Article 8 was engaged and that the interference proposed by the respondent was in accordance with the law.
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In considering the proportionality of the respondent’s decision, the judge recalled the statutory manifestation of the...
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