Upper Tribunal (Immigration and asylum chamber), 2023-11-06, UI-2023-002366
| Appeal Number | UI-2023-002366 |
| Hearing Date | 02 November 2023 |
| Date | 06 November 2023 |
| Published date | 21 November 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No: UI-2023-002366
First-tier Tribunal No: HU/58446/2022
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-002366 First-tier Tribunal No: HU/58446/2022 LH/00870/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 06 November 2023
Before
UPPER TRIBUNAL JUDGE MANDALIA
Between
Mehdi Hassan
(NO ANONYMITY DIRECTION MADE)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr M Hoare, H & S Legal
For the Respondent: Ms R Arif, Senior Home Office Presenting Officer
Heard at Birmingham Civil Justice Centre on 2 November 2023
DECISION AND REASONS
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The appellant’s appeal against the respondent’s decision of 8 November 2022 to refuse his application for permission to stay in the UK as a Family Member (Partner), was dismissed by First-tier Tribunal Judge Barker for reasons set out in a decision promulgated on 17 April 2023.
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The appellant claims Judge Barker made perverse or irrational findings on a matter or matters that were material to the outcome and made a material misdirection of law on a material matter. The appellant claims the conclusion reached at paragraph [30] of the decision gives inadequate weight to the fact that the causation of the appellant’s unlawful presence in the UK since 2014 was the respondent’s flawed decision of 24 September 2014. The appellant claims that the proper approach in such an appeal, relying upon the decision of the Court of Appeal in Ahsan v SSHD [2017] EWCA Civ 2009, is to deal with the appellant, so far as possible, as if that erroneous decision had not been made. That is, as if his leave to remain had not been invalidated. The appellant claims the respondent accepts the appellant’s most recent application does not fall for refusal on grounds of suitability. He is in a genuine and subsisting relationship with a British citizen and meets the remaining eligibility requirements for leave to remain as a partner. It is said that had the proper approach been adopted by Judge Barker, the outcome of the appeal would have been different.
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Permission to appeal was granted by Upper Tribunal Judge Pitt on 26 July 2023.
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In summary, the appellant relies upon the family life he has established with his partner, Rabab Haiderali Mohamed, who is a British Citizen. They married according to the Islamic faith on 4 August 2017. In refusing the application the respondent accepted the application does not fall for refusal on grounds of suitability. The respondent was not however satisfied that the appellant meets the relevant eligibility requirements set out in Section E-LTRP of Appendix FM. In particular, the respondent was not satisfied that the appellant meets the eligibility immigration status requirement in paragraphs E-LTRP.2.1. to 2.2. The respondent noted that the appellant has remained in the UK unlawfully since the refusal of his application for leave to remain as a Tier 1 Entrepreneur in 2014. The respondent considered whether the appellant is exempt from meeting certain eligibility requirements but concluded that there are no insurmountable obstacles to the appellant’s family life with his partner continuing outside the UK. The respondent concluded there are no exceptional circumstances which would render refusal of the application a breach of Article 8 because it would result in unjustifiably harsh consequences for the appellant, his partner or a relevant family member.
The hearing before me
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At the outset of the hearing, I asked the parties whether the respondent’s decision of 24 September 2014 refusing the appellant’s application for leave to remain as a Tier 1 Entrepreneur was before Judge Barker, since there is no reference to that decision in Judge Barker’s decision. Mr Hoare had represented the appellant before the First-tier Tribunal and his recollection was that a copy of the decision had been provided to the Tribunal. He was however unable to draw my attention to a copy of the decision in the any of the bundles (appellant or respondent) that were before the Tribunal. Despite a short adjournment so that Mr Hoare could furnish me with a copy of the decision that he recalls was before the First-tier Tribunal, he was unable to provide a copy.
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In any event, Mr Hoare submits that in his witness statement dated 30 December 2022 the appellant had claimed that he did not engage in fraud in respect of his English language test. He claimed to have ‘wrongly’ lost his leave to remain as a result of the respondent’s previous decision in which the fraud was alleged. He claimed that he has been unable to effectively challenge the allegation. Mr Hoare accepts the appellant does not explain why he did not challenge that decision shortly after he received it, or at some other point before December 2021. Mr Hoare submits the appellant properly made an Article 8 application in December 2021, having made a series of repeated requests to the respondent for disclosure that started on 8th January 2021. Before the Article 8 claim was made, Mr Hoare wished to ensure that any material relevant to the allegation of fraud or dishonesty was considered and if necessary, addressed. There was some additional delay because the appellant then had to raise the funds necessary for the application fee.
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Mr Hoare submits Judge Barker erred in her assessment of proportionality by failing to take into account the reasons why the appellant had been in the UK unlawfully. The only reason provided by the respondent for refusing the Tier 1 application in September 2014 was the language fraud and the respondent has failed to provide any evidence to support that allegation. The appellant therefore found himself without leave based upon an allegation made by the respondent that is not true. The appellant did not have a remedy before the guidance given by the Court of Appeal in Ahsan v SSHD [2017] EWCA Civ 2009 and Khan v Others v Secretary of State for the Home Department [2018] EWCA Civ 1684. Mr Hoare submits that the appropriate course is for the respondent to grant the appellant a period of leave to remain so that in any future application for leave to remain as a partner, he will be capable of meeting the immigration status requirements and the English language requirement. Mr Hoare submits that at present the appellant is unable to secure the specified evidence confirming the English language requirement is met because he has no leave to remain in the UK.
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In reply, Ms Arif submits the grounds of appeal amount to nothing more than disagreement with a decision that Judge Barker was entitled to reach on the evidence before the Tribunal. She submits Judge Barker found the eligibility requirements for limited leave to remain as a partner are not met by the appellant, and she went on to have regard to the wider Article 8 claim. In reaching her decision the judge had regard to relevant factors including whether the appellant can properly be expected to make an application for entry clearance from Pakistan. Ms Arif submits that at paragraphs [29] and [30] of her decision, Judge Barker sets out why the respondent’s decision to refuse the application for leave to remain is proportionate in all the circumstances.
Decision
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Judge Barker recorded the agreed issues in the appeal in paragraph [7] of her decision. She heard oral evidence from the appellant and his partner. Her findings and conclusions are set out at paragraphs [9] to [31] of the decision. She accepted that the respondent’s decision engages Article 8 and the appellant’s removal from the UK would involve an interference with his family life. She noted that the real issue in the appeal is whether the interference with the right to respect for family life is justified and proportionate.
Judge Barker did not find the appellant to be a credible witness regarding his connections to Pakistan. She rejected his claim that he has no family in Pakistan noting his oral evidence that his mother remains in Pakistan, and the evidence given by his partner, that the appellant’s uncles and cousins assist his mother with her living arrangements in Pakistan. Judge Barker was led to the conclusion that the appellant was not willing to provide an accurate description of sources of support available to him in Pakistan and found his evidence to be unreliable. She found that the appellant has family in Pakistan who may be able to accommodate him and emotionally support him whilst he re-adjusts to life there. Judge Barker noted that although the appellant has made a life for himself in the UK, his status has always been precarious, initially because his status was dependent on further applications being successful, and since September 2014, he has remained in the UK unlawfully. Judge Barker found the appellant’s partner, Rabab Haiderali Mohamed, was aware of the appellant’s immigration status long before they began their relationship. Judge Barker found that the appellant has not demonstrated that there are insurmountable obstacles, as defined in EX.2 of Appendix FM, to the appellant’s family life with his partner continuing outside...
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