Upper Tribunal (Immigration and asylum chamber), 2023-09-05, UI-2022-002132
| Appeal Number | UI-2022-002132 |
| Hearing Date | 11 July 2023 |
| Date | 05 September 2023 |
| Published date | 21 September 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-002132 (HU/01315/2021)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-002132 |
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First-tier Tribunal No: HU/01315/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 5 September 2023
Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
Salima Ouahrani Sp Khaznadji
(NO ANONYMITY DIRECTION MADE)
Appellant
and
Entry Clearance Officer
Respondent
Representation:
For the Appellant: Mr A. Bandegani, Counsel, instructed by Kamberley Solicitors
For the Respondent: Ms A. Everett, Senior Home Office Presenting Officer
Heard at Field House on 11 July 2023
DECISION AND REASONS
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This is an appeal against a decision of the respondent dated 25 January 2021 to refuse a human rights claim made in the form of an application for entry clearance by the appellant, a citizen of Algeria, who applied for leave to enter to join her Algerian husband who resides in the in the UK with limited leave to remain.
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The appeal was originally heard and allowed by a panel of the First-tier Tribunal by a decision promulgated on 7 February 2022. The appeal was originally brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
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By a decision given orally at a hearing on 22 May 2023, I allowed the Entry Clearance Officer’s appeal against the decision of the First-tier Tribunal, and directed that the decision would be remade in the Upper Tribunal, with certain findings of fact preserved, acting under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. I promulgated written reasons for my decision that the decision of the First-tier Tribunal involved the making of an error of law on 5 July 2023, which I shall refer to as the “Error of Law decision”. It is annexed to this decision.
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It was against that background that the appeal was reheard before me on 11 July 2023, sitting at Field House.
Factual background
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I summarised the factual background in the following terms at paragraphs 5 and 6 of the Error of Law decision:
“5. The appellant applied for entry clearance as the spouse of her Algerian husband, Adlane Khaznadji, whom I shall refer to as ‘the sponsor’. The sponsor was granted limited leave to remain on the grounds of his long residence in August 2017, following an allowed appeal. He married the appellant, to whom he had been introduced remotely in 2016, in late 2017, having returned briefly to Algeria to do so after he was granted limited leave to remain. He returned to the UK in order to make arrangements for the appellant to join him here; he works, earning an income sufficient to meet the minimum income requirement of the rules, and has amassed considerable savings. The appellant applied for entry clearance as a spouse on 30 August 2020.
6. In the refusal decision, the Entry Clearance Officer accepted that appellant met all requirements of the Immigration Rules for entry clearance as a spouse contained in Appendix FM, paragraph EC-P-1.1., save for the ‘relationship eligibility requirement’. She was unable to meet that requirement as the sponsor is not British, settled, or present as a refugee: see paragraph E-ECP.2.1. There were no exceptional circumstances such that there would be unjustifiably harsh consequences which would render refusal of the application a breach of Article 8 of the European Convention on Human Rights (‘the ECHR’).”
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In summary, the First-tier Tribunal accepted a submission on behalf of the appellant below that the immigration rules were unfair. Appendix FM only entitled the partners of British citizens, refugees and those with indefinite leave to remain (“ILR”) to be granted entry clearance as partners. By contrast, other categories of the Immigration Rules permitted the dependents of non-settled, non-refugee migrants to be admitted to the UK. There was no rational justification for drawing that distinction, the First-tier Tribunal found, and as such the weight ordinarily attracted by the public interest in the maintenance of effective immigration controls was diminished, such that the appeal should be allowed. I held that that amounted to an impermissible attempt to redefine the public interest as set out in immigration rules, which was the constitutional preserve of the Secretary of State and set the decision side. For full details, please refer to the Error of Law decision.
Issues
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It is plain that the appellant and sponsor enjoy “family life” together: Article 8(1) ECHR is engaged, and that the refusal of leave to enter to the appellant amounts to an interference with the family life the sponsor enjoys with her. The question for my consideration is whether the Secretary of State has justified that interference under Article 8(2) ECHR.
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It remains common ground that the appellant cannot meet the full requirements of the Immigration Rules. The issues to be determined in this decision are therefore as follows:
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Whether (as Mr Bandegani, who did not appear at the first hearing in the Upper Tribunal, submitted) the Error of Law decision was decided without the benefit of authority, in particular FH (Post-flight spouses) Iran [2010] UKUT 275 (IAC), discussed below;
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Whether, therefore, there is no justification for the differential treatment by the Immigration Rules of the appellant and the sponsor, on account of the sponsor not holding indefinite leave to remain, in contrast to other categories of limited leave to remain under the Immigration Rules, which do permit the dependents of non-settled migrants to be granted limited leave to enter and remain. If so, should the public interest in the maintenance of effective immigration controls be “modified” or otherwise diminished in its application to the appellant?
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Whether the continued exclusion of the appellant from the United Kingdom represents a fair balance for the purposes of Article 8(2) ECHR?
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Preserved findings of fact
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Neither party challenged the First-tier Tribunal’s findings of fact, which I summarised in the following terms at para. 37 of the Error of Law decision:
“…there has been no challenge to the findings of fact reached by the panel, by either party. Those findings include the general credibility of the sponsor (para. 20); the sponsor’s circumstances and the appellant’s English language skills (para. 22); the fact that the sponsor has family in Algeria, but that in light of the length of his residence here, he is unfamiliar with Algeria and the requirements for obtaining employment (para. 23); the appellant and the sponsor are in a genuine and subsisting relationship, the appellant meets the financial requirements of the rules, and knows sufficient English to allow for integration (para. 27); the fact that the appellant and the sponsor are Algerian was ‘appreciated’, the sponsor has family in Algeria, and there are no insurmountable obstacles to their relationship continuing in Algeria.”
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I preserved those findings insofar as they represented the position at the time of the hearing before the First-tier Tribunal, on 19 November 2021.
The hearing
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The hearing took place on a face-to-face basis at Field House. There had previously been a suggestion by the appellant’s legal team that the permission of the government of Algeria would be sought in order to enable the appellant to give evidence remotely, from Algeria. That would have entailed a potentially lengthy adjournment. In the end, that approach was not pursued. Ms Everett indicated that she would have few, if any, questions for the appellant, were she to give evidence. I also note that this resumed hearing takes place against the background of a range of extensive, unchallenged, findings of fact.
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Ms Everett applied for an adjournment in order to respond to Mr Bandegani’s submissions going to issues (a) and (b), identified above. I refused the application. I did not consider that it was necessary for the Secretary of State to have further time to prepare her case, or to call evidence to justify the Immigration Rules.
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Mr Bandegani initially said that the appeal could proceed on submissions alone and that he did not want to call the sponsor, since Ms Everett had indicated that there were no credibility concerns arising from his evidence. I said that it might be helpful for the sponsor to amplify his evidence concerning the impact of the Entry Clearance Officer’s decision on the family life he enjoys with his wife, in order to ensure I had the fullest possible picture of their circumstances. I said I would permit additional evidence in chief. Mr Bandegani called the sponsor and asked him to adopt his witness statement but chose not to elicit any additional evidence in chief. Ms Everett had few questions for him; I asked a number of additional questions of my own. He gave evidence through an Arabic interpreter; at the outset, I established that he was able fully to communicate with and through the interpreter.
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After hearing the sponsor’s evidence, I heard submissions from both parties. Mr Bandegani relied on a helpful 29 page skeleton argument.
I will summarise the evidence and submissions in the course...
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