Upper Tribunal (Immigration and asylum chamber), 2023-08-13, UI-2022-003109
| Appeal Number | UI-2022-003109 |
| Hearing Date | 31 July 2023 |
| Date | 13 August 2023 |
| Published date | 29 August 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No: UI-2022-003109
First-tier Tribunal No: HU/10663/2019
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-003109 First-tier Tribunal No: HU/10663/2019 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 13 August 2023
Before
UPPER TRIBUNAL JUDGE PERKINS
Between
Mehadi Hasan
(no anonymity order made)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: The appellant appeared in person.
For the Respondent: Mrs A Nolan, Senior Home Office Presenting Officer.
Heard at Field House on 31 July 2023
DECISION AND REASONS
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The appellant was not represented before me. He confirmed that he was not expecting to be represented but had come to assist as much as he could. I explained to him in outline the history of the case and pointed out that permission had been granted on detailed grounds settled by his barrister, Ms Sarah Pinder, and that had prompted the Home Office to serve a detailed reply, which he said he had seen.
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The appellant said that he did not want to make many representations, but he indicated that he would appreciate a quick decision if that were possible because he could not work but he had made another application. He said that in December 2022 he had applied for a “spouse visa”. Mrs Nolan did not know about that before the hearing but was able to trace it on the Home Office records. Understandably, and appropriately, she made no comment whatsoever about the merits of the application or the likely outcome but confirmed that there was a note to indicate it would not be decided until the determination of this appeal had been finalised.
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The appellant appeals a decision of the First-tier Tribunal dismissing his appeal against the decision of the respondent as long ago as on 6 June 2019 refusing him leave to remain on human rights grounds based on his relationship with his wife. I begin by considering carefully the First-tier Tribunal’s decision.
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This notes that the appellant entered the United Kingdom with entry clearance in March 2014. His leave was extended until 24 December 2018 but then curtailed to expire on 31 August 2018. On 31 August 2018 he made an application on the basis of his private and family life and the application was refused and certified as clearly unfounded on 13 March 2019. He challenged that by submitting a Pre-Action Protocol letter in contemplation of an application for judicial review and the respondent agreed to reconsider the application. Upon reconsideration the application was again refused. The main point taken in the refusal is that the appellant was not eligible to apply to settle as a partner. His partner was not a British citizen and was neither “settled” in the United Kingdom nor a person who had shown that she was in need of protection.
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The Secretary of State looked at the relevant Rules and decided there would not be very significant obstacles in the way of the appellant’s integration into Bangladesh. He had lived there for most of his life and could be expected to retain knowledge of the life, language and culture of the country.
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There were not thought to be any exceptional circumstances that would make refusing the application an unlawful interference with the United Kingdom’s obligations under Article 8 of the European Convention on Human Rights and there were not found to be any unjustifiably harsh consequences for the appellant and his partner. There were no children of the relationship.
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The core point was that the appellant was in the United Kingdom with limited leave and chose to form a partnership with a person in the United Kingdom who, although lawful present there, had less than settled status and there was thought to be no reason why they could not go to Bangladesh, the appellant’s country of nationality, and establish themselves there as a couple.
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The case was presented to the First-tier Tribunal on the basis of there being a lacuna in the Immigration Rules. It was argued that, at the time of the application, the Rules did not provide a category which could lead to permission to stay as the husband or wife of a person issued with a Residence Card. The appellant’s wife’s father was a national of Italy exercising treaty rights in the United Kingdom. The appellant’s wife was the dependant of her father and it was claimed that refusing the application would frustrate his wife’s and father-in-law’s rights to exercise their treaty rights. This was considered to be a highly relevant element in the Article 8 balancing exercise.
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The Judge noted that the appeal had previously been determined unsatisfactorily and he was required to redetermine the appeal.
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The Judge further reviewed the immigration history. The reasons for his leave being curtailed are not spelled out but they appear to arise from a dispute with his university and the decision clearly upset the appellant. Curtailment does not appear to be the result of any disreputable conduct on the appellant’s part.
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The appellant’s wife left Bangladesh for Italy when she was 10 years old. She arrived in the United Kingdom in 2017 having become acquainted with the appellant on “Facebook” in 2017. She married in April 2018 at an Islamic ceremony and the marriage was registered at the Tower Hamlets Registry Office in October 2018.
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The appellant’s wife was earning. She was doing part-time work at a business in Canary Wharf but was still receiving pocket money from her father in the order of very approximately £150 a month. Her father had been working full-time in a restaurant but at the time of evidence was unwell.
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It was the appellant’s evidence that he was last in Bangladesh in 2015 when he stayed there for about six weeks with his parents and younger brother. His wife was last in Bangladesh in 2014. She had stayed there for two and a half months with her grandmother. They both had families in the Chandpur district.
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The Judge noted that the Secretary of State’s case was very straightforward. There really was nothing to show that the appellant could not re-establish himself in Bangladesh. The obvious points were good. He had spent his formative years there; he had been educated there and he had family there. There was no reason to think that he could not return to the family home for help and support and his wife had some finances to support him. His educational background made him very employable.
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The appellant and his now wife were aware at all material times that he was not on a route to settlement and he had no legitimate expectation to be able to remain in the United Kingdom. His wife was from Bangladesh too so could be expected to return there. The appellant’s case, necessarily based on human rights, really did not begin to run.
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He was represented in the First-tier Tribunal by Ms Pinder and her submissions “place considerable emphasis” on the fact that his wife had previously held a Residence Card as the non-EEA daughter of a qualified person in the United Kingdom and the appellant’s wife and father-in-law had been issued with Pre-Settled Status. It was her case that they had free movement rights under EEA law which were now protected by the Withdrawal Treaty and that bore on the Article 8 rights of them and therefore the appellant.
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Ms Pinder, helpfully and sensibly, made clear that it was not suggested that the appellant met any relevant Rule except the “very significant obstacles to reintegration” test. His wife, it was said, faced insurmountable obstacles to accompanying him.
Ms Pinder drew attention at the decision of this Tribunal in FH (post-flight spouses) Iran [2010] UKUT 275 (IAC). The appellant in that case was the wife of a refugee from Iran who had been recognised as a refugee in the United Kingdom. He was from Iran too. She wanted to join her husband but there was no relevant Rule. The Rules, of course, provided for the wife to join her husband subject to certain conditions but only if the husband was “settled” in the United Kingdom. In that...
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