Upper Tribunal (Immigration and asylum chamber), 2019-04-12, HU/24392/2016 & HU/24396/2016
| Jurisdiction | UK Non-devolved |
| Date | 12 April 2019 |
| Published date | 05 June 2019 |
| Hearing Date | 14 March 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/24392/2016 & HU/24396/2016 |
Appeal Numbers: HU/24392/2016
HU/24396/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/24392/2016
HU/24396/2016
THE IMMIGRATION ACTS
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Heard at Cardiff Civil Justice Centre |
Decision & Reasons Promulgated |
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On 14th March 2019 |
On 12th April 2019 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE LEVER
Between
Mrs FOUZIA KHAN
Mr MUHAMMAD UMAIR
(ANONYMITY DIRECTION not made)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr Makol
For the Respondent: Mr C Howells
DECISION AND REASONS
Introduction
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The Appellants, born on 23rd March 1986 and 25th June 1987 respectively, are both citizens of Pakistan and are married. They made application for leave to remain in the United Kingdom based on family and private life. That application was refused by the Respondent on 12th October 2016. The Appellants appealed that decision and their appeals were heard by Judge of the First-tier Tribunal Trevaskis sitting at Newport on 2nd October 2017. The judge allowed their appeal outside of the Immigration Rules on human rights grounds. The Respondent made application to appeal that decision on 11th October 2017. Permission to appeal was granted by First-tier Tribunal Judge Mailer on 19th March 2018. He found it was arguable that the judge had erred in finding that there would be very significant obstacles to their integration in Pakistan thus affecting his findings under both the Rules and under Article 8 outside of the Rules.
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Directions were issued for the Upper Tribunal first to consider whether or not an error of law had been made in this case. That hearing took place on 15th August 2018 before Upper Tribunal Judge Rimington. The judge found that the factors outlined by the judge as potentially constituting a very significant obstacle to their reintegration in Pakistan was a material error of law and set aside the decision with directions that there should be a resumed hearing in the Upper Tribunal.
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The matter has now come before me in accordance with those findings made by Upper Tribunal Judge Rimington.
The Proceedings – Introduction
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As the Appellants were present I firstly outlined to them the nature of the proceedings and the way they would be conducted. I next checked the documents available to me in this case. Those documents consist of the original documents before the First-tier Tribunal.
The Proceedings – Evidence
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The first Appellant, Mrs Khan was called to give evidence. She provided her name, date of birth and address on file. She confirmed that her witness statement was true and correct and adopted that as her examination-in-chief.
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In cross-examination she said that she had her parents and siblings in Pakistan and she had nine siblings. She was in contact with her parents. Her husband has his mother in Pakistan and he was in contact with her. He also had brothers and sisters and was in contact with them. She said that her husband’s mother lived with his siblings and his father had died. She confirmed that she had a BSc in computer science from Pakistan and an MSc in mobile computing from the UK. She said that her husband had similar BSc qualifications from Pakistan, and both worked in the IT/software industry in the UK.
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She said that when they came to the UK in 2014 as students they intended to return to Pakistan but that changed when they got a job offer in the UK. She was only allowed to work twenty hours per week. She said that the Genie Lab had applied for a Tier 2 visa for her. She said that she had gone earlier to a firm of solicitors and nothing had happened. In 2016 she said that she had informed the Home Office that they intended to leave voluntarily for Pakistan. However, she said they had debts in this country because they cannot work and she believed those debts were now more than £8,000 and approaching £11,000. She provided a breakdown of where she believed those debts resided and her husband confirmed the same. She said that their daughter was 17 months of age and in good health.
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I next heard from the second Appellant, Mr Umair who provided his name. He said that he had read his wife’s witness statement and accepted that and adopted it as his own evidence-in-chief. In terms of making an application from Pakistan to come to the UK as a Tier 2 Migrant he said that their immigration history is such that because of this current problem he thought it would be difficult for them to be readmitted. He said further the additional costs of living in Pakistan without employment and applying for a visa meant that they could not afford such monies. He said that his wife was also now currently thirteen weeks pregnant.
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In cross-examination he confirmed that he originally intended to return to Pakistan. He accepted that they could get a job in Pakistan within three months but the maximum income he could get would be about £800 per month and the rent of a property would take up about a third of that income. He said that he had been working in Wales for two years when he was dependent on his wife’s student visa and had earned £25,000 per annum. He had then relocated to Cardiff with a second company where he had earned £22,000.
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In closing submissions the Respondent relied upon the refusal letter and it was submitted that there were no difficulties in return under paragraph 276ADE(vi) of the Rules or reasons to remain outside of the Rules under Article 8. It was noted that the application in August 2016 was an application outside of the Rules under Article 8 rather than an application for a Tier 2 visa.
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In closing submissions on behalf of the Appellants it was submitted that they were both credible. I was referred to their immigration history and the negligence and criminal action of their former solicitor documented within the bundle as being the basis for why a wrong application was made and their difficulties began. It was further said that an Entry Clearance Officer would look at their immigration history and potentially refuse any application to come to the UK on a Tier 2 visa or any other visa.
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At the conclusion of the hearing I reserved my decision to consider the documents and evidence submitted. I now provide that decision with my reasons.
Decision and Reasons
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In this case the burden of proof lies on the Appellants and the standard of proof required for both immigration and human rights issues is a balance of probabilities.
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I have carefully examined all of the evidence in this case. I do not find that credibility is in issue in this case and I accept the evidence provided by the Appellants. In reality there is little dispute on the facts in this case.
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The Appellants present with an unusual case that understandably would lead to a sympathetic view being taken of their current position. The Appellants are both highly qualified individuals and came to the UK as students. They formed an intent to remain in the UK as it provided potentially greater income and opportunity than similar work in their home country. It is easy to envisage that in normal circumstances they may well have progressed from holding student visas to potentially successfully obtaining other visas giving them status and ability to obtain skilled employment at a reasonable rate of pay in the UK. Regrettably they approached for advice and assistance a disreputable firm of solicitors who did not provide proper advice and indeed appear to have simply taken their money and failed to make any proper application. The conduct and fate of these solicitors within the criminal courts is documented within the paper work and their culpability and the fact that the Appellants were victims of their actions is beyond doubt. That set of circumstances I accept and place to one side for the moment.
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The Appellants’ application is to remain on the basis of their family and private life. In accordance with such appeals I have firstly considered whether the Appellants come within the terms of the Immigration Rules, as if they do, that is powerful evidence to indicate removal would be disproportionate.
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In terms of the Immigration Rules the only relevant requirement they may meet is under paragraph 276ADE(vi) in that based upon their private life they would face very significant obstacles in terms of reintegration into life in Pakistan. The case of Treebhawon [2017] UKUT 00013 has been referred to me as providing guidance on what falls short of being very significant hurdles under paragraph 276ADE.
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The reality is that neither Appellant would face any real obstacles on return to Pakistan. It is difficult to fashion a cogent argument to the contrary. Both Appellants have spent most of their lives in Pakistan and were educated to degree level in that country. They are both in good health, and although there is reference to diabetes on the part of Mrs Khan, that is not so far as I can see put forward as being at a debilitating stage, untreatable nor suggesting that any treatment necessary is not available in Pakistan. They both have large close families within their home country...
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