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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2023-005335 First-tier Tribunal No: HU/52974/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 19 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE LANE

 

Between

 

SHOAIB ALI

(NO ANONYMITY ORDER MADE)

Appellant

and

 

Secretary of State for the Home Department

Respondent

Representation:

 

For the Appellant: Mr Fazli (by Teams)

For the Respondent: Ms Arif, Senior Presenting Officer

 

Heard at Edinburgh on 5 November 2024

 

 

DECISION AND REASONS

1.       The appellant is a citizen of Pakistan. He applied for leave to remain in the United Kingdom on the basis of family life with his partner. His application was refused on 15 February 2023 and the appellant appealed to the First-tier Tribunal which dismissed his appeal in a decision promulgated on 14 November 2023. The appellant now appeals to the Upper Tribunal.

Background

2.       The First-tier Tribunal sets out the background to the appeal in its decision at [3-5]:

3. The appellant asserts a right to remain under section R-LTRP of Appendix FM on the basis of his family life with his partner, Mrs Sana Mubashar Gul. The appellant contends in the first instance that, despite Mrs Gul not being the same partner with whom he applied for a previous grant of leave, he still meets the eligibility relationship requirements of E-LTRP 1.10. It is the appellant's position that the rules are ambiguous and do not expressly prevent him from continuing or extending any previous grant of leave on the same basis but with a different partner.

4. In the event this Tribunal did not accept that the appellant met the eligibility relationship status requirement, the appellant asserts he is exempt from meeting certain eligibility requirements because EX.1 of Appendix FM applies. The appellant's position is that he and his partner would face "insurmountable obstacles" to the continuation of their relationship in Pakistan in accordance with EX2 and that in the alternative removal to Pakistan would result in unjustifiably harsh consequences.

5. The respondent has provided a review dated 13th October 2023 in which she maintains the refusal and reasons as expressed in the reasons for refusal. The respondent contends that the appellant does not meet the requirements of E-LTRP 1.10 of Appendix FM and there has been no significant evidence provided to assert that the appellant does meet the requirements. The respondent further contends the appellant has not shown there are any obstacles that would prevent the appellant and his current partner re- establishing a life in Pakistan and also does not accept that maintaining her position in all the circumstances amounts to unjustifiably harsh consequences.

3.       The grounds assert that 'The [respondent] refused the application [for leave to remain] on the sole basis that because the A now has a different wife/partner he cannot meet the above relationship requirement. The FTT agreed with this argument at [16-18]:

16. There is no dispute that the appellant married his first wife Saher (also known as Seher)Haq on the 6th April 2016 and entered the UK as a spouse on the 12th July 2017. The appellant applied in time for further leave to remain as a spouse on 19th March 2020.The appellant was granted further leave to remain on 21st October 2021 until 22nd April2024, on the basis of his relationship with Saher Haq. On the 3rd May 2022 a decree of divorce was granted in respect of the appellant's marriage to Saher Haq. The appellant did not notify the Home Office that his marriage to Saher Haq had broken down nor did he make enquiries at that stage concerning his right to remain following a change in circumstances, the appellant simply continued to remain on the basis of leave granted for a partner he was no longer together with. Mr Fazli accepted that there was a period of time in which the appellant was not in a relationship or residing with either partner during his last period of leave. In around May 2022 the appellant and Mrs Gul state that they met in Manchester and their relationship commenced thereafter. The appellant and Mrs Gul got married on the 28th November 2022 and began living together from this date onwards in Glasgow.

17. Having considered the wording of the rules as set out above, it is clear that the eligibility relationship requirements require (a) that any previous relationship must have broken down permanently and (b) the appellant and his partner (Mrs Gul) must have lived together in the UK, since the appellant's last grant of limited leave to remain as a partner, or there must be a good reason consistent with a continuing intention to live together permanently in the UK for any period in which they have not done so. On the accepted facts and chronology concerning the relationship of the appellant and Mrs Gul; it is not in my determination arguable that the appellant can meet the rules as set out above. The appellant and Mrs Gul were not in a relationship since the last grant of limited leave, indeed their relationship only commenced mid-way through the last grant of limited leave, which was based on leave as a partner to another individual.

18. Despite the submissions made by Mr Fazli, ELTRP 1.9 immediately precedes ELTRP 1.10 and when read together requires any previous relationship (namely the relationship with Ms Haq) to have broken down permanently and any relationship on which an application with Ms Gul is based to have involved the appellant and Ms Gul living together since the last grant of limited leave to remain. The appellant therefore cannot qualify for leave to remain under a 5 or 10 year partner route when the partner has changed mid-way through a previous grant of leave. It is of note the appellant did not notify the Home Office that he was separating or divorcing in May 2022 and made no attempts at that stage to check his eligibility to remain in the UK and apply for a new visa. The appellant's failure to carry out the above steps has left him in a position where he is unable to comply with the rules. Mr Fazli's interpretation of the rules was submitted as being based on an assumption without anything more and in my determination this is a mistaken assumption. In the circumstances I am satisfied that the appellant does not meet the eligibility relationship status requirement.

4.       Ground 1 asserts that the judge erred in law in finding that the appellant did not meet the requirements of Section E-LTRP, the relevant parts of which provide:

Section E-LTRP: Eligibility for limited leave to remain as a partner

E-LTRP.1.1. To qualify for limited leave to remain as a partner all of the requirements of paragraphs E-LTRP.1.2. to 4.2. must be met.

Relationship requirements

E-LTRP.1.2. The applicant's partner must be-

(a) a British Citizen in the UK;

(b) present and settled in the UK;

(c) in the UK with protection status;

...

...

E-LTRP.1.8. If the applicant and partner are married or in a civil partnership it must be a valid marriage or civil partnership, as specified.

E-LTRP.1.9. Any previous relationship of the applicant or their partner must have broken down permanently, unless it is a relationship which falls within paragraph 278(i) of these Rules.

E-LTRP.1.10. The applicant and their partner must intend to live together permanently in the UK and, in any application for further leave to remain as a partner (except where the applicant is in the UK as a fiancé(e) or proposed civil partner) and in any application for indefinite leave to remain as a partner, the applicant must provide evidence that, since entry clearance as a partner was granted under paragraph D-ECP1.1. or since the last grant of limited leave to remain as a partner, the applicant and their partner have lived together in the UK or there is good reason, consistent with a continuing intention to live together permanently in the UK, for any period in which they have not done so.

...

...

Ground 1

5.       Ground 1 states:

Firstly, it is clear that - if read with extra care and consideration - this requirement may apply to those who are applying for ILR/settlement or for ''further leave'' as a spouse (and not initial spousal leave). But the A only applied for fresh limited leave to remain under the partner route. He was not applying for ''further leave to remain'' as a partner of his first wife but he was applying for his first leave with this new partner. This was not ''further leave'' within the meaning of the above provision. The A was not extending his old leave. He was seeking new leave on the basis of a new relationship. Therefore, this provision, with respect, does not apply to the A.

Secondly, the above requirement does not specifically state that a second legitimately married wife is excluded from meeting the relationship requirement in these circumstances. There is nothing expressly stated about a new marriage and the impact that may have. There is nothing prohibited or wrong about the second marriage and the A therefore meets the immigration status requirement or ought to do so. It is arguably irrational in these circumstances to propose that the relationship requirement is not met. The A was permitted to re-marry in the UK. There was no issue with his marriage. Further, the requirement does not state anything about a scenario like this and therefore it is not reasonable to assume that it prevents people in the A's position from not meeting that requirement.

6.       I find that Ground 1 is not made out for the following reasons. First, the rule may not make any express distinction between those applying for further leave to remain and those making an initial application; there is a separate provision in the rules for those applying for entry clearance as a partner (Section EC-P: Entry clearance as a partner). There is, in my opinion however, no justification for arguing that different applicants, whether they are applying for fresh leave to remain as a partner or further leave to remain, should be treated differently under Section E-LTRP. Had the rule intended to treat applicants differently according to their particular circumstances, it would have said so in terms. To interpret the rule in the way the grounds urge is wrong in law.

7.       Secondly, whilst the rule may not exclude 'a second legitimately married wife ... from meeting the relationship requirement' equally the rule does not provide that applicants such as the appellant are excused from meeting the relationship requirement. Moreover, the silence of the rule on those in the position of the appellant does not mean that the rule is irrational. As I note below, the rules required the appellant to notify the Secretary of State that his first marriage had broken down. I do not consider that the appellant may legitimately assert that the rule is irrational when his only reason for doing so arises from his own failure to comply with his duty to notify the respondent of his change of circumstances.

8.       E-LTRP.1.1. provides that 'all of the requirements of paragraphs E-LTRP.1.2. to 4.2. must be met' if limited leave to remain is to be granted. Therefore, the appellant was required inter alia to meet the requirements of E-LTRP.1.10:

E-LTRP.1.10. The applicant and their partner must intend to live together permanently in the UK and, in any application for further leave to remain as a partner (except where the applicant is in the UK as a fiancé(e) or proposed civil partner) and in any application for indefinite leave to remain as a partner, the applicant must provide evidence that, since entry clearance as a partner was granted under paragraph D-ECP1.1. or since the last grant of limited leave to remain as a partner, the applicant and their partner have lived together in the UK or there is good reason, consistent with a continuing intention to live together permanently in the UK, for any period in which they have not done so. [My emphasis]

The appellant did not 'provide evidence that, since entry clearance as a partner was granted under paragraph D-ECP1.1. or since the last grant of limited leave to remain as a partner, the applicant and their partner have lived together in the United Kingdom.' Indeed, he was unable to provide such evidence because of the breakdown of his previous relationship; he had not been in a relationship with his current spouse since he was last granted leave to remain.

9.       In the grounds of appeal, Mr Fazli argues that '... this requirement [E-LTRP.1.10.] relating to living together since the last grant of leave only applies to those who remain in the same marriage and not someone - like the A - who lawfully enters into a new marriage. In the alternative, even if this wrong, the requirement is a qualified one and there was a good reason as to why they had not lived together since the last grant of leave and that is because they were not in a relationship at the time when the last limited leave was granted.' [my emphasis].

10.   I disagree with Mr Fazli's submissions. First, the assertion that the rule does not apply to 'someone - like the A - who lawfully enters into a new marriage' is, with respect, Mr Fazli's gloss on the plain wording of the rule; I was provided with no valid reason why I should adopt such an interpretation.

11.   Secondly, it is clear in my opinion, that 'a good reason' for a failing to provide evidence of cohabitation cannot cover the particular circumstances of the appellant and his new partner. The appellant's 'good reason' is that there is a period of time since the appellant was last granted leave to remain for which he cannot provide evidence of living with his partner because 'they were not in a relationship at the time when the last limited leave was granted.' The 'good reason' must, as the rule says, be 'consistent with a continuing intention to live together permanently in the United Kingdom.' It follows that the appellant and his partner cannot have had 'a continuing intention to live together permanently in the United Kingdom' during a period of time when they were not in a relationship at all. In my opinion, this part of the rule is intended to address periods of time when partners are in a relationship but separated for some reason or are together but living outside the United Kingdom, but in each case with ' with a continuing intention to live together permanently in the United Kingdom.' The appellant, therefore, cannot meet the requirements of Section E-LTRP because he cannot meet any part of E-LTRP.1.10. The judge did not err in law by finding that the appellant did not meet the requirements of the Immigration Rules.

12.   I also note that E-LTRP.2.2. provides that:

The applicant must not be in the UK -

...

(b) in breach of immigration laws (except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded), unless paragraph EX.1. applies.

Following the breakdown of his first marriage, the appellant's immigration statues was effectively in limbo. Had he notified the Secretary of State of the change in his circumstances (which he was obliged to do) then his leave to remain may have been curtailed. The appellant may then have found that he was unable to satisfy E-LTRP.2.2. He has only avoided having to engage with that provision at all by failing to comply with the rules.

Ground 2

13.   The remaining grounds of appeal concern the judge's analysis of the Article 8 ECHR appeal. Ground 2 asserts that the carried out (a) an inadequate assessment of the issue of insurmountable obstacles and (b) of exceptional circumstances.

14.   As Upper Tribunal Judge Sheridan noted when granting permission to appeal, the second ground is not 'persuasive as it is clear from paragraph 26 [of the First-tier Tribunal's decision] that the correct test was applied and the question of whether the appellant's partner could integrate in Pakistan, whilst not the legal test, is plainly relevant to evaluating the obstacles to the relationship continuing in Pakistan.' I agree. The judge considered all the relevant evidence and reached a cogent conclusion at [19-26] which was available to him. The ground amounts to nothing more than disagreement and I find that there is no good reason for the Upper Tribunal to interfere with the First-tier Tribunal's decision.

Ground 3

15.   Ground 3 asserts that the judge 'failed to have regard to the Chikwamba principle [see Chikwamba [2008] UKHL 40] given the narrow point in dispute.' The appellant claims that, on the facts, it was inevitable that he would be granted entry clearance from abroad. Consequently, the appellant argues that he should not be required to apply for entry clearance from abroad.

16.   Ground 3 appears to ignore the judge's conclusions at [28]:

28. I find that the factors raised by the appellant do not outweigh the public interest because in a case such as this the essential elements relating to family life with Mrs Gul, on which the appellant relies, are capable of being replicated / continuing in Pakistan ; although I do not suggest they would be the same. In accordance with the factual findings made above regarding the circumstances of the appellant and Mrs Gul; the appellant will be able to continue to maintain his relationship with his partner if they choose to do so. The appellant will further be able to maintain contact with his friends and family in the United Kingdom through modern means of communication. The appellant has not been able to point to any particularly compelling features which would render his removal disproportionate. I find that the return of the appellant to Pakistan would not result in unjustifiably harsh consequences [my emphasis]

17.   First, in this Article 8 ECHR appeal, the judge's primary finding is that family life can reasonably be continued in Pakistan. That finding effectively determines the human rights appeal. Secondly, in Alam [2023] EWCA Civ 30, the Court of Appeal held that 'Chikwamba is only relevant if the Secretary of State refuses an application on the narrow procedural ground that the appellant should be required to apply for entry clearance from abroad.' That was not the case in this appeal; the application which the appellant made and which is the subject of this appeal was validly made from within the United Kingdom. The application was refused for reasons other than that it was required to be made from abroad.

18.   For the reasons, I have given, the appeal is dismissed.

Notice of Decision

This appeal is dismissed

 

 

C. N. Lane

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

Dated: 22 January 2025