United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003603
	First-tier Tribunal No: HU/63656/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 3 ^rd of December 2024

 

Before

 

UPPER TRIBUNAL JUDGE LODATO

 

Between

 

IRFAN GUL

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Khan, counsel

For the Respondent: Ms Cunha, Senior Presenting Officer

 

Heard at Field House on 13 November 2024

 

DECISION AND REASONS

 

 

Introduction

 

1.              The appellant appeals with permission against the decision, dated 19 April 2024, of First-tier Tribunal Judge Lewis ('the judge') to dismiss his appeal on human rights grounds.

 

Background

 

2.              The appellant's immigration history is not in dispute between the parties and was set out at [1]-[3] of the judge's decision. In brief summary, his case is that the refusal of his application to remain in the UK with his wife amounted to a breach of his and his wife's Article 8 human rights.

 

Appeal to the First-tier Tribunal

 

3.              The appellant appealed against the refusal of the claim. The appeal was heard by the judge on 18 April 2024. He dismissed the appeal on human rights grounds in a decision promulgated on 19 April 2024. For the purposes of the present proceedings, the following key matters emerge from the decision:

 

•          The basis on which the respondent refused the human rights claim was summarised. [8]

 

•          In addressing the issues to be resolved in the appeal, the judge recorded the following at [9]:

 

The skeleton argument on behalf of the appellant set out five matters for me to consider including the obstacles that the appellant and his partner would face if returned to Pakistan and separated. Having heard the evidence and cross-examination, Mr. Khan conceded that the appellant did not meet the substantive requirements of the Immigration Rules and that the issue which I must really determine in this appeal is:

(a) whether the respondent's refusal amounts to a disproportionate breach of the appellant's Article 8 rights.

 

•          It was not disputed that the appellant and his sponsor were married and in a genuine relationship. [15]

 

•          The following submissions were recorded as made on the appellant's behalf at [16]:

 

Mr. Khan submits that it would be a disproportionate interference with the appellant's article 8 rights to remove him to Pakistan from where, it is submitted he is highly likely to, if not be bound to succeed in an application to return to the UK as a spouse.

 

•          The judge summarised the appellant's arguments and evidence about the impact on his wife's mental state if he were required to return to Pakistan. [17-21]

 

•          The evidence going to the role played by the appellant in supporting his wife in the UK was set out at [22] to [24].

 

•          The judge found that the evidence of the level of support needed by the sponsor had been exaggerated but that the appellant provided "some emotional support" including at times when physically separated from her and that he could continue to support her from outside the UK. The consequences of separation were not found to be unduly harsh. [25-26]

 

•          The following findings were reached at [27] about the financial implications of any separation:

 

When asked how his wife would cope financially if the appellant was returned to Pakistan he said that she would not be able to meet her expenses. No reason is advanced as to why she would not be eligible to receive benefit in the short term.

 

•          In balancing the competing factors, the judge summarised the applicable factors set out at s.117B of the 2002 Act. [29]-[31]

 

•          The judge returned to the findings he had reached about the implications of a separation, at [32], before making the following observation, at [33]:

 

It is important to consider the likely length of any separation which I have done. It is the appellant's case that he is highly likely to be reunited with the sponsor is applying through the correct route.

 

•          The judge concluded that the appellant's removal would not amount to a disproportionate breach of his, or his family's, Article 8 rights. [34-36]

 

Appeal to the Upper Tribunal

 

4.              The appellant applied for permission to appeal in reliance on the following grounds:

 

                                                   i.             Ground 1: the judge unlawfully failed to consider whether there were insurmountable obstacles to the couple living together as a family outside the UK.

 

                                                 ii.             Ground 2: the judge misapplied the legal principles identified in Chikwamba v SSHD [2008] UKHL 40.

 

                                               iii.             Ground 3: the judge failed to consider the proportionality of any period of separation in light of his finding that the sponsor might need to resort to benefits in the absence of her spouse thereby diminishing the prospect of a successful application for entry clearance.

 

5.              In a decision dated 10 September 2024, Upper Tribunal Judge Norton-Taylor granted permission for all grounds to be argued. The following observations were made in granting permission:

 

It is said that the judge failed to engage with EX.1 of Appendix FM when assessing Article 8. It is said that there was real substance to the appellant's assertion that they would be insurmountable obstacles to his wife being able to relocate to Pakistan on the basis that she was an Ahmadi Muslim. Apparently, this evidence was contained within the couple's witness statements. This particular aspect of the evidence is not mentioned by the judge at any point within his decision (including the summary of the appellant's submissions). For present purposes, I am prepared to accept that it was brought to the judge's attention at the hearing, although this will need to be clearly demonstrated at an error of law hearing.

 

It is apparent that the judge did not address EX.1 or the evidence relating to the appellant's wife's faith. This discloses an arguable error of law.

 

The remaining grounds relate to the appellant returning to Pakistan alone in order to make an entry clearance application. If the first ground is made out, it may be sufficient for the appellant to succeed at the error of law stage. Having said that, it may also be the case that the question of separation remains live.

 

6.              The consolidated error of law hearing bundle was provided to the tribunal late, on 11 November 2024, two days before the hearing was due to be heard. This was a clear and serious breach of the standard directions issued to the parties following the grant of permission to appeal. To make matters worse, when the bundle was belatedly provided to the tribunal, the same was not served on the respondent directly, as required by paragraph 7.2 of the Practice Statement which the tribunal expects those who practice in this field to be familiar with. The result was that Ms Cunha was placed in the invidious position of being forced to consider the hearing bundle for the first time at the hearing when it was sent to her by the appellant's counsel. Notwithstanding the disadvantageous position she was put in, Ms Cunha diligently and expeditiously reviewed the papers and indicated that she was able to proceed to present the respondent's case without seeking an adjournment. I made it clear that the increasing trend of parties wrongly assuming that providing material to the tribunal on the online platform, CE-File, amounted to service on the other side must cease. Had it proved necessary to adjourn the hearing, I would have given serious consideration to awarding costs against the appellant's representatives. It was only due to the professionalism and diligence of Ms Cunha that no costs were wasted.

 

7.              On 15 November 2024, I received a letter of apology from the appellant's representatives about the failure to directly serve the consolidated bundle on the respondent which jeopardised the hearing. It was explained that the trainee who prepared the matter for hearing is more familiar with the process in the First-tier Tribunal where provision of documents to that online platform constitutes service on the respondent. The representatives have given an assurance that efforts will be redoubled to ensure that proceedings are conducted in this tribunal by observing the applicable requirements and procedural rigour.

 

8.              At the error of law hearing, I heard oral submissions from both parties. I address any submissions of significance in the discussion section below.

 

Discussion

 

9.              Before addressing the grounds of appeal directly, it is important to set out some guiding principles against which the legal challenges fall to be considered.

 

10.          Lata (FtT: principal controversial issues) [2023] UKUT 163 (IAC) provided the following guidance about how the First-tier Tribunal should approach its task of deciding appeals and how the parties should assist in this process:

 

The parties are under a duty to provide the First-tier Tribunal with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the First-tier Tribunal to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the First-tier Tribunal.

 

Upon the parties engaging in filing and serving a focused Appeal Skeleton Argument and review, a judge sitting in the First-tier Tribunal can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing.

 

The reformed appeal procedures are specifically designed to ensure that the parties identify the issues, and they are comprehensively addressed before the First-tier Tribunal, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position.

It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified.

 

[...]

The application of anxious scrutiny is not an excuse for the failure of a party to identify those issues which are the principal controversial issues in the case.

 

Unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.

 

A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal.

 

11.          This theme continued with TC (PS compliance - "issues-based" reasoning) Zimbabwe [2023] UKUT 164 (IAC) where the following guidance was offered at [3] of the headnote:

 

The identification of 'the principal important controversial issues' will lead to the kind of focussed and effective FTT decision required, addressing those matters, and only those matters, which need to be decided and concentrating on the material bearing upon those issues. The procedural architecture in the FTT, including the PS under the reformed process, is specifically designed to enable these principal important controversial issues to be identified and for the parties' preparation, as well as the hearing to focus upon them.

 

12.          The House of Lords decision in Chikwamba v SSHD [2008] 1 WLR 1420 was recently considered by the Court of Appeal in Alam v SSHD [2023] 4 WLR 17. In assessing its continuing effect when seen against subsequent legal and procedural developments, Elisabeth Laing LJ provided the following guidance about how Chikwamba should be applied by decision-makers:

 

106. In Chikwamba, the Secretary of State met a very strong article 8 case by relying on an inappropriately inflexible policy. The decision does not in my view decide any wider point than that that defence failed. There are three other matters that should be borne in mind when it is cited nowadays.

(i) The case law on article 8 in immigration cases has developed significantly since Chikwamba was decided.

(ii) It was decided before the enactment of Part 5A of the 2002 Act. Section 117B(4)(b) now requires courts and tribunals to have "regard in particular" to the "consideration" that "little weight" should be given to a relationship which is formed with a qualifying partner when the applicant is in the United Kingdom unlawfully.

(iii) When Chikwamba was decided there was no provision in the Rules which dealt with article 8 claims within, or outside, the Rules. By contrast, by the time of the decisions which are the subject of these appeals, Appendix FM dealt with such claims. Paragraph EX.1 of Appendix FM provided an exception to the requirements of Appendix FM in article 8 cases if the applicant had a relationship with a qualifying partner and there were "insurmountable obstacles" to family life abroad.

 

107. Those three points mean that Chikwamba does not state any general rule of law which would bind a court or tribunal now in its approach to all cases in which an applicant who has no right to be in the United Kingdom applies to stay here on the basis of his article 8 rights. In my judgment, Chikwamba decides that, on the facts of that claimant's case, it was disproportionate for the Secretary of State to insist on her policy that an applicant should leave the United Kingdom and apply for entry clearance from Zimbabwe.

 

[...]

 

110. The core of the reasoning in Hayat is that Chikwamba is only relevant when an application for leave is refused on the narrow procedural ground that the applicant must leave and apply for entry clearance, and that, even then, a full analysis of the article 8 claim is necessary. If there are other factors which tell against the article 8 claim, they must be given weight, and may make it proportionate to require an applicant to leave the United Kingdom and to apply for entry clearance. I consider that, in the light of the later approach of the Supreme Court to these issues, the approach in Hayat is correct. A fortiori, if the application for leave to remain is not refused on that narrow procedural ground, a full analysis of all the features of the article 8 claim is always necessary.

 

[...]

 

112. The two present appeals, subject to A1's ground 2, are both cases in which neither claimant's application could succeed under the Rules, to which courts must give great weight. The finding that there are no insurmountable obstacles to family life abroad is a further powerful factor militating against the article 8 claims, as is the finding that the relationships were formed when each claimant was in the United Kingdom unlawfully. The relevant tribunal in each case was obliged to take both those factors into account, entitled to decide that the public interest in immigration removal outweighed the claimants' weak article 8 claims, and to hold that removal would therefore be proportionate. Neither the FTT in A1's case nor the UT in A2's case erred in law in its approach to Chikwamba.

 

13.          I am satisfied that the appellant did not, through his representatives, expressly raise the issue of insurmountable obstacles and instead relied on the broad Chikwamba-type argument that this was a case where an application for entry clearance was bound to succeed. It followed that the implications of the period of separation became the key consideration. As summarised by the judge, paragraph [9] strongly suggests that insurmountable obstacles was only advanced in the appeal in the context of a putative alternative of the couple living together while entry clearance was pursued, not as a permanent arrangement because the application was said to be highly likely, or bound, to succeed. Even when seen in this context, the prospect of the couple living together in Pakistan temporarily was sidelined by the appellant's representatives in favour of a broader issue about the overall proportionality of the decision to refuse leave to remain and thereby bring about a period of separation. This is reflected in the list of issues which makes no mention of insurmountable obstacles. The position was narrowed still further, at [16], when the appellant's counsel couched the proportionality argument solely in the context of whether the procedural requirement of enforcing an entry clearance application and separation of the couple would serve any useful purpose given the almost inevitable successful outcome which was forecast. Again, the discrete question of insurmountable obstacles does not appear to have featured in the submissions in any meaningful sense. When seen against this procedural backdrop, it is hardly surprising that the judge did not look beyond the narrow question of whether it would be disproportionate interference with the couple's Article 8 rights to require them to pursue an application for entry clearance during a period of separation. That the judge was entitled to assess the principal controversial issues in this way is only underscored by Lata and TC which emphasise that judges are not expected to mine the case papers for favourable issues which might arise on those facts subject to exceptions such as remaining alert to Robinson-obvious points which might put the UK in breach of international treaty obligations.

 

14.          However, Alam, makes important observations about the role to be played by the consideration of insurmountable obstacles under EX.1 when a Chikwamba argument is raised. There can be little doubt that this discrete question will often arise in such a case. The point is made at [112] of Alam that a judge will be "obliged" to consider this question where insurmountable obstacles do not exist, and this is a factor in favour of the public interest in any proportionality balancing exercise. I do not read Alam as mandating that a judge is obliged to consider the question of insurmountable obstacles in circumstances where the appellant has narrowed the issues in the appeal to such an extent that the judge was more than entitled to approach the appeal from the standpoint that there was a single issue to resolve, namely whether a period of separation while entry clearance was pursued would amount to a disproportionate interference with the couple's Article 8 rights. The question of insurmountable obstacles does not necessarily or obviously arise for consideration when the appellant has framed his case in such a narrow way. Lata could not be clearer that the tribunal will no longer tolerate a form of rolling consideration of issues. It is not open to an appellant to only argue before the First-tier Tribunal that an application for entry clearance is almost certain to succeed and that the period of separation will be disproportionate, and then later advance a very different case to the Upper Tribunal that the question of insurmountable obstacles was also in issue.

 

15.          A judge is no longer to be expected to divine issues from the papers and evidence lodged in support of an appeal. Mr Khan suggested that the written evidence and submissions plainly raised the barriers the appellant's wife would face in Pakistan as an Ahmadi Muslim and that this naturally and obviously raised the issue of insurmountable obstacles. I disagree. If this was truly an issue the appellant wished to be resolved, it was incumbent on him to say so through his representatives. In how they approached the appeal by the time of the hearing, the judge was more than entitled to approach the issues as they had been narrowed and articulated by the parties. I also reject the suggestion that the judge himself raised the issue of insurmountable obstacles by observing that the appellant's wife might be required to resort to benefits while the appellant was absent. There are several leaps of reasoning required before this factor could be said to raise the issue of insurmountable obstacles. Firstly, a temporary benefits claim from the appellant's wife would need to effectively undo the couple's claimed eligibility under the applicable income requirements. The judge was not bound to reach such a sweeping conclusion when the appellant's case had always been that a period of separation would be inevitable and disproportionate upon mandating an entry clearance application. If there was a real danger of a benefits claim, during a period of separation, undoing their satisfaction of the minimum income threshold of the eligibility requirements of Appendix FM, one might have expected this point to have been raised expressly. There is nothing to indicate it ever was raised as a possibility. The judge's passing reference to a possible benefits claim did not introduce the issue of insurmountable obstacles.

 

16.          Seen against the above backdrop, it is worth recalling the grounds of appeal:

 

                                                   i.             Ground 1: the judge unlawfully failed to consider whether there were insurmountable obstacles to the couple living together as a family outside the UK.

 

                                                 ii.             Ground 2: the judge misapplied the legal principles identified in Chikwamba v SSHD [2008] UKHL 40.

 

                                               iii.             Ground 3: the judge failed to consider the proportionality of any period of separation in light of his finding that the sponsor might need to resort to benefits in the absence of her spouse thereby diminishing the prospect of a successful application for entry clearance.

 

17.          Given my assessment above, I am satisfied that none of the grounds of appeal disclose errors of law. It is correct that the judge did not consider insurmountable obstacles, but this was entirely lawful and in accordance with procedural rigour and the principal controversial issues when seen against the narrow way in which the appellant framed the issues to be determined. Chikwamba was properly considered in the modern context, as explained in Alam. The judge assessed the narrow procedural challenge by assessing the competing public interest and the private interests of the appellant and his wife in the context of a full proportionality balancing exercise. Finally, the judge did not introduce the issue of insurmountable with his reference to the possibility of a benefits claim being made by the appellant's wife during a period of separation.

Notice of Decision

 

The decision of the judge does not involve an error of law. It follows that the decision of Judge Lewis stands.

 

 

 

Paul Lodato

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

27 November 2024