Upper Tribunal (Immigration and asylum chamber), 2019-04-11, HU/14370/2017
| Jurisdiction | UK Non-devolved |
| Date | 11 April 2019 |
| Published date | 03 June 2019 |
| Hearing Date | 28 September 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/14370/2017 |
Appeal Number: HU/14370/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/14370/2017
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 28 September 2018 |
On 11 April 2019 |
Before
DEPUTY UPPER TRIBUNAL JUDGE BAGRAL
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
ASHRAF NOOR
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant (Secretary of State): Mr D Diwncyz, Senior Home Office Presenting Officer
For the Respondent (Mr Noor): Ms A Chowdary, Counsel
DECISION AND REASONS
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This is the Secretary of State’s appeal against a decision of First-tier Tribunal Judge Shimmin (“the judge”) who in a Decision and Reasons promulgated on 16 March 2018, allowed Mr Noor’s appeal against the Secretary of State’s decision refusing his application for leave to remain on human rights grounds. For ease of reference I shall throughout this decision refer to Mr Noor, who was the original appellant, as “the claimant” and to the Secretary of State, who was the original respondent, as “the Secretary of State”.
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The claimant, who was born on 12 August 1984, is a national of Pakistan. He entered this country on 28 July 2014 with entry clearance as a spouse of a British citizen, namely, Nadia Amreen Noor. He was granted leave to remain until 2 April 2017 and before this leave expired he applied for a further extension on 16 March 2017, but this was refused on 23 October 2017.
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This application was founded upon the continuing relationship which the claimant had with his wife. The basis of the refusal was that the claimant did not qualify for leave to remain under the Immigration Rules (“the Rules”) because he did not meet the financial requirements or the requirements of paragraph EX.1. of Appendix FM because it had not been shown that there were “insurmountable obstacles” (as defined within EX.2) preventing family life from continuing in Pakistan, and further that there were no exceptional circumstances in this case which could warrant a grant of leave to remain outside of the Rules. It was against this decision that the claimant appealed and, as already noted above, this appeal was allowed by the judge.
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The Secretary of State now appeals against this decision, leave having been granted by Resident Judge of the First-tier Tribunal R C Campbell on 11 April 2018.
The Decision of the Judge
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As he was obliged to, the judge first considered whether or not the requirements set out within Appendix FM and within EX.1. were satisfied and he did this at paragraphs 23 to 31. The judge noted that whilst the couple claimed a joint annual income of £23,073 from salaried employment, they could not meet the requirements of Appendix FM as the claimant did not deposit all of his cash earnings into his bank account and so his bank statements did not correspond with his wage slips as required. Three weeks before the application was refused however, the claimant’s wife commenced new employment in a full-time position with an annual gross income of £24,000 (the judge incorrectly notes that she commenced employment following the refusal). There was no challenge to this employment and the judge accepted the employment was genuine. By the date of the hearing before the judge on 12 March 2018 the claimant’s wife had not been with her new employer for the six-months required under Appendix FM (she was one month short) and so the claimant could not satisfy the requirements of Appendix FM-SE of the Rules.
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At paragraph 26 the judge concluded:
“On the basis of the evidence before me I am satisfied that if the appellant reapplies next month, when his wife has been with her new employer for six months, he will meet all the requirements of the Immigration Rules”.
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Next the judge considered the evidence relating to the claim that the couple were undergoing fertility treatment (IVF) in the UK which was argued stood as an insurmountable obstacle to family life continuing outside the UK. The situation regarding treatment before the judge was that IVF treatment was “about to commence”. The judge then proceeded to consider the circumstances of the claimant’s wife. He noted that she was British born; most of her close family were in the UK; she had good employment and should not be expected to leave all of this behind to live in Pakistan where she would have difficulties in finding employment. Taking all of this into account, the judge found as follows:
“26. On the basis of the evidence before me I am satisfied that if the appellant reapplies next month, when his wife has been with his new employer for six months, he will meet all the requirements of the Immigration Rules. I find that in the circumstances of this case, including those in relation to IVF treatment, which I consider below, it is not proportionate for the appellant to make a fresh application, particular a fresh application from Pakistan.
27. I accept … IVF treatment is about to commence.”
28. The appellant’s wife was born in the UK. She has studied here and most of her close family are in the Yorkshire and Teesside areas. She has good employment.
29. I find that she should not be expected to leave all this to accompany her husband to Pakistan. I am satisfied that her husband would have to ‘start at the bottom again’ in respect of employment after three years absence from Pakistan. I accept the appellant’s wife’s evidence that she would have difficulty in obtaining employment in Pakistan. She is an independent and ambitious person and she would not be able to fulfil her employment wishes in that country.
30. Taking into account the couple’s problems in respect of IVF treatment and the difficulty the appellant and his wife would have in respect of employment in Pakistan I find this amounts to them facing very significant difficulties in continuing their family together outside the UK. Such difficulties could not be overcome and would entail very serious hardship for the couple.
31. Accordingly, I find that the appellant should have been found to have been exempt from meeting the eligibility requirements because paragraph EX.1. applies.”
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The judge then proceeded to consider whether the claimant’s removal would be disproportionate under Article 8 of the ECHR. At paragraph 35 the judge noted that Article 8 was engaged and at paragraphs 36 and 37 concluded that the Secretary of State’s decision was not in accordance with the law because the claimant “satisfied the Immigration Rules at the date of decision” or “could now satisfy those Rules if a fresh application was made.” At paragraph 37 the judge stated that he was satisfied that there was no public interest in removing the claimant because he satisfied the “Immigration Rules which the Secretary of State declares to be human rights compliant.”
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In his omnibus conclusion the judge, as he was obliged to do, gave consideration to section 117B of the NIAA 2002 and noted that the maintenance of effective immigration controls is in the public interest and that this indeed together with the claimant’s precariousness immigration status weighed against him. The judge further noted neutral factors such as the claimant’s ability to speak...
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