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

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/04519/2019

 

THE IMMIGRATION ACTS

 

Heard at Field House	Decision & Reasons Promulgated
On 19 th September 2019	On 24 th September 2019

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

 

Between

 

Nikitaben Arvindbhai Ghoghari

(ANONYMITY DIRECTION not made)

Appellant

 

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Representation :

 

For the Appellant: Mr P Richardson of Counsel instructed by Kadmos Consultants

For the Respondent: Miss R Bassi, Home Office Presenting Officer

 

DECISION AND REASONS

 

1.              This is the appellant's appeal against the decision of Judge Rae-Reeves following a hearing at Hatton Cross on 13 June 2019.

2.              The appellant is a citizen of India born on 3 February 1986.

3.              She has a complex immigration history having originally arrived in the UK in December 2009 as a Tier 4 student. She subsequently made an asylum claim in October 2014 but she no longer relies upon that application.

4.              The application before the judge was one made on 20 July 2017 as an unmarried partner when she applied for leave to remain on the basis of Article 8 within the Immigration Rules as well as on Article 8 outside the Rules.

5.              The judge concluded that she had been living with her partner, a British citizen, Ravinder Singh Riyat, since either March 2016, or February 2017. Accordingly, the judge accepted that she meets the definition of partner as set out in the immigration rules since she has been in a subsisting relationship at the date of application for a period of two years.

6.              The judge then turned his attention to the question of whether there were insurmountable obstacles to family life with Mr Riyat continuing outside of the UK. Mr Riyat has three children from a former relationship including a 7 year old child with whom he has daily contact.

7.              The judge concluded that there were no exceptional circumstances which would tip the balance in the appellant's favour and dismissed the appeal, both within and without the Immigration Rules.

8.              The appellant sought permission to appeal on the grounds that the judge had failed to take into account the best interests of the sponsor's son and had not considered that relationship in the context of whether there were insurmountable obstacles to the appellant and sponsor enjoying family life together in India.

9.              On 14 September 2019 Judge Robertson granted permission, finding that it was arguable that nowhere in the decision does the judge consider whether:-

(i)             the sponsor would face insurmountable obstacles in continuing his relationship with the appellant because it would involve him giving up frequent contact and involvement that he has with his son; and

(ii)          whether under Article 8 outside the Immigration Rules it is reasonable to expect the sponsor to relocate to India to continue his family life with the appellant when it involves leaving his son in the UK.

10.          Although in the Rule 24 response the respondent initially defended this determination, at the hearing Miss Bassi conceded that there was a material error of law in this determination and was content that the decision be reversed.

11.          In an otherwise detailed and thoughtful determination the judge fell into error by failing to consider a material issue namely the best interests of the sponsor's child and his relationship with his father in the assessment of the insurmountable obstacle test. Accordingly, he erred in law.

Notice of Decision

12.          The judge erred in law. His decision is set aside. It is remade as follows. The appellant's appeal is allowed.

13.          No anonymity direction is made.

 

Signed Date 23 September 2019

Deputy Upper Tribunal Judge Taylor