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

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003124
	First-tier Tribunal Nos: HU/55520/2023 LH/01532/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

19 ^th February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE SAINI

 

Between

 

Emrah Shegaj

(NO ANONYMITY ORDER MADE)

Appellant

and

 

The Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Miss L Appiah, Counsel, Simon Noble Solicitors

For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

 

Heard at Field House on 31 January 2025

 

DECISION AND REASONS

1.               For the ease of comprehension, I shall refer to the parties as they were constituted before the First-tier Tribunal.

2.               The Secretary of State appeals against the decision of First-tier Tribunal Judge Hendry, promulgated on 9 ^th June 2024, allowing the Appellant's appeal outside the Immigration Rules on the basis that the decision to remove him represents a disproportionate interference with his family life. The Secretary of State applied for permission to appeal, which was granted by First-tier Tribunal Judge Dainty in the following terms:

"2. The grounds aver that the judge failed to accord proper weight to the public interest and failed to weigh in the balance that there were no insurmountable obstacles to family life in the home state (applying TZ (Pakistan)).

3. The analysis of EX1 and art 8 outside the rules is somewhat conflated in this decision making it difficult to understand precisely what has been taken into account on the balancing exercise. Further whilst it might be said in a partnership case that art 8 outside the rules is only ever decisive where EX1 has failed and as such that lack of insurmountable obstacles is baked into the public interest, TZ does require it to be taken into account and it is arguable here that the finding that the obstacles that the couple faced weren't insurmountable was not fully taken account of in the balance."

3.               The Appellant did not provide a Rule 24 response but indicated that the Secretary of State's appeal was opposed.

Findings

4.               At the close of the hearing, I reserved my decision, which I shall now give. I do not find that there is an error of law in the decision such that it should be set aside. My reasons for so finding are as follows.

5.               In the course of his submissions, Mr Ojo sought to argue two points, which I remarked appeared to be new arguments given that I could not see that they were canvassed anywhere in the Grounds of Appeal lodged by the Secretary of State at pages 25 to 26 of the composite bundle within the IAFT-4 appeal form. In summary, those two points Mr Ojo argued for, are that the judge should not have made a finding at paragraph 41 that Section 117B(4) did not apply in respect of his family life. In addition, Mr Ojo also sought to argue that there had been no reference to the 2017 decision in accordance with Devaseelan as the Tribunal's starting point concerning the Article 8 assessment. I deal with these two points as follows. I note there was no formal application made by Mr Ojo to rely upon these points despite my indication that they appeared to be new and in the event I were to find that they were new points not covered by the ambit of the grounds of appeal as pleaded by the Secretary of State. Mr Ojo attempted to persuade me that because the Grounds of Appeal mentioned the consideration of the public interest outside the Rules, in the context of the Court of Appeal's decision in TZ (Pakistan) and PG (India) [2018] EWCA Civ 1109 at [31] and [34] of that judgment, and as they mentioned the judge's alleged failure to give proper weight to the public interest as a consequence of not finding that there were any insurmountable obstacles in her assessment of Appendix FM under the Rules, these arguments would allow him to further argue now that the judge should not have made a finding that section 117B(4) was not met at paragraph 41 of the decision as well as the Devaseelan point. Firstly, none of these arguments are contained anywhere within the pleaded grounds of appeal. The focus of the appeal is extremely narrow and as I have identified during the hearing and as I conclude, these points are new and given that there is no application to grant permission on supplementary grounds in any form, which would have been accompanied by reasons for the delay in these arguments being raised late, on the day of the hearing and not being put in writing, on notice, to the Appellant or the Upper Tribunal, I cannot, and would not have extended time or given permission for these points to be argued, and do not do so for the sake of completeness.

6.               In any event, considering the points de bene esse, I see no force in them at all given that the witness statement from the Appellant at page 61 of the composite bundle reveals that the couple met in 2016 and Mr Ojo was not able to point to anything to indicate that the judge's finding that the couple also established their relationship that same year (whilst the Appellant had discretionary leave to remain) was not potentially canvassed during the hearing in oral testimony, was not contradicted by any other evidence within the documentation before me, was not contradicted by any minute or note from the Presenting Officer before the First-tier Tribunal, nor had any transcript been obtained by the Secretary of State to support this new allegation to demonstrate it was not raised and therefore not open to the judge to so conclude. Consequently, I find that there is no merit in the point at all.

7.               Turning to the second point and the lack of reference to Devaseelan and the 2017 decision, the only submission made in support of this point by Mr Ojo is that the reference to Devaseelan should have been made because there was a previous decision - not that there was anything in the decision which would have altered the outcome that the judge had reached or indeed the starting point. Indeed, Mr Ojo himself directed my attention to the Refusal Letter at page 362 of the composite bundle which quoted from the previous judicial decision but merely stated that Article 8 was engaged even in 2017 but concluded that the decision to refuse the Article 8 claim was proportionate. Given the passage of time and the intervening period of seven years between that decision and the instant judgment of Judge Hendry and given the previous finding I was pointed to in 2017 that Article 8 was engaged (as opposed to those rights not being engaged by a decision to remove), I cannot see that the failure to utilise this starting point would have made any difference to the judge's decision whatsoever (or the starting point that was taken), particularly as that appeal in 2017 was not premised upon the Appellant's family life (as the instant appeal was) but dealt with the Appellant's private life alone and as Article 8 was engaged on that occasion and given the passage of time between the 2017 appeal and the present one, those rights can only have become more entrenched and the previous Article 8 become outdated. Therefore, again, although this is a new argument, having considered the point de bene esse, I find that it holds no merit.

8.               Turning to the sole ground upon which the Secretary of State has been granted permission, in essence, it argues that the judge having found at paragraph 55 that there were no insurmountable obstacles in her view when considering the matter under the Rules, should have when going on to consider the Appellant's family life outside the Rules, given proper weight to this finding and the inability to meet the Rules outside of them, in the course of her decision from paragraphs 59 to 61. I find that there is no merit in this ground whatsoever as the judge has quite properly, and indeed at regular intervals in the decision, reminded herself of the public interest both under, and outside, the Rules in accordance with relevant authority.

9.               First, at paragraph 39, the judge acknowledges the public interest outside the Rules under Section 117B(1) and explicitly notes the maintenance of effective immigration control is in the public interest. This is the formulation of the public interest as it stands in any Article 8 assessment performed outside the Rules and is a mandatory one that the judge was bound to note and indeed did not fail to do. Again, at paragraph 50, in referencing the Court of Appeal judgment in Rhuppiah, the judge notes the general public interest in maintaining effective immigration control in the same breath as noting that the Appellant entered the country without the status and then held discretionary leave for a period before losing that status. The judge then notes at paragraph 53 the most relevant binding authority that she should have followed, and indeed did follow, namely the judgment of Agyarko [2017] UKSC 11 and the Supreme Court's guidance on the true meaning of insurmountable obstacles as mentioned by the ECHR in Jeunesse which indicates that terminology should be understood in a practical and realistic sense when considering Article 8 outside the Rules and considering exceptional circumstances which would result in unjustifiably harsh consequences. At paragraph 54 the judge then goes on to note that it was her duty to decide whether the refusal is proportionate in each particular case and to balance the strength of the public interest against the impact on an individual's Article 8 rights. In particular, the judge then goes on to note explicitly that it was incumbent upon her to give appropriate weight to the Secretary of State's policy, expressed in the Rules and instructions, but also properly noted that the public interest in immigration control can be outweighed, when considering an application for leave to remain brought by a person in the UK in breach of immigration law only where there are insurmountable obstacles or exceptional circumstances as defined, the critical issue being, whether, giving due weight to the strength of the public interest in the removal of that person, the Article 8 claim is sufficiently strong to outweigh it. The judge even notes in the final sentence that in cases where there is precarious family life, as was the case here, a very strong or compelling claim is required to outweigh the public interest. Thus, from my reading of the decision, the judge has gone to great pains to ensure her decision was given in accordance with the Supreme Court's judgment in Agyarko and also cited chapter and verse on how insurmountable obstacles should be assessed under the Rules and then outside the Rules, and what her duty was in terms of giving consideration to the public policy outside the Rules. Thus, when the judge considers Article 8 outside the Rules at paragraph 57 onwards, and in particular against the Razgar questions, it is noteworthy that the judge again states that it is in the public interest that there is a consistent immigration policy and once more notes the provisions of sections 117A to D of the Nationality, Immigration and Asylum Act 2002, which set out the public interest considerations. Thus, I find that the judge was plainly aware that there were no insurmountable obstacles as defined by EX.1 and as mentioned by her at paragraphs 55 to 56 of the decision. She then went on to consider the situation outside the Rules under Article 8 ECHR. As to the references to TZ and PG as pleaded in the grounds, there merely highlight, that the whole purpose in considering insurmountable obstacles under the Rules in the first instance, is so that the Tribunal can gauge how wide of the mark an appellant might be in their ability to meet Appendix FM regarding their family life. The measure of that failure would then represent the precise sum of the public interest in each appeal where the codified family life rules are not met. Thus, as long as a judge has performed that assessment first, they will always know the public interest outside the rules, whether they needlessly repeat the conclusion outside the rules or not.

10.           The misguided suggestion that the First-tier Tribunal Judge was unaware that she had previously found there were no insurmountable obstacles and needed to repeat this finding within the Article 8 assessment takes form over substance. What matters is that, only pronounced a few paragraphs earlier, the judge had concluded that there were no insurmountable obstacles and thus went on to explicitly consider the "obstacles" outside the Rules (I note the lack of the word "insurmountable" thereafter), as she is required to do. I note that there is no instance pointed to which indicates that the judge was unaware of her finding made mere paragraphs earlier that there were no insurmountable obstacles; nor what the public interest represented given her explicit reference to the relevant passages from higher court authority which, of course, she was not bound to cite, but did, in any event.

11.           It bears repeating, that insurmountable obstacles when considered under the Rules, are purposely posited at an elevated threshold as postulated by the Secretary of State in her Rules, but this assessment is inconsistent with jurisprudence from the European Courts (such as Rodrigues Da Silva) and it is for this reason that if an applicant can meet the elevated threshold set by the Secretary of State there is no need to consider the matter outside the rules. But where that threshold is not met, the tribunal must always go on to consider insurmountable obstacles outside the rules and do so in a manner that is consistent with European jurisprudence such that those artificially elevated criteria given to insurmountable obstacles by the Secretary of State's guidance are abandoned so that those factors are merely part of the competing considerations that a tribunal can consider and are not determinative of the proportionality outcome or a mandatory consideration under Article 8 ECHR: see [23]-[24] of Agyarko & Ors [2015] EWCA Civ 440. Thus, the approach taken by the judge was not merely open to her, but was the only correct and lawful way by which to assess these appeals.

12.           In any event, the judge properly mentions the public interest as defined by section 117B of the 2002 Act when performing her assessment outside the Rules, as this is what she is bound by statue to consider given that section 117B(1) represents the statutory measure of the public interest as set down by Parliament to ensure that the public interest is considered by tribunal judges in every human rights appeal. Indeed, the reference to section 117B(1) invariably and implicitly represents the sum failure of any migrant to meet the Immigration Rules in a human rights appeal, be it on the grounds of private life or family life under the Rules. Thus, where a judge has previously considered those matters and then goes on to consider Article 8 outside the Rules, I can see no requirement or sense in a judge repeating that which they have already found. For instance, there is no complaint that the Secretary of State did not understand the judgment which necessitated the finding to be repeated, and as there is no challenge to the judge's balancing of the competing interests, in particular the counterbalancing factors and reasons given by her for finding in the Appellant's favour at paragraphs 59 to 61, it is clear that the complaint as to the alleged failure to consider the public interest is incorrect and holds no merit at all, both in terms of the references to jurisprudence, in terms of the findings already made under the rules and in terms of the references to s.117B(1) of the 2002 Act.

13.           I remind myself of the guidance given by the Upper Tribunal in the reported decision of Budhathoki (reasons for decisions) [2014] UKUT 341 (IAC) which states in its judicial headnote that it is generally unnecessary and unhelpful for judgments to rehearse every detail or issue raised in a case as this leads to judgments becoming overly long and confused and is not a proportionate approach to deciding cases. What is important is that judges identify and resolve key conflicts in the evidence and explain in clear and brief terms their reasons so that the parties can understand why they have won or lost. As already discussed, there is no complaint that the Secretary of State did not understand why she had lost and given that the judge has gone to greater lengths than one might expect to reference the public interest and the public policy epitomised by the inability to meet the Rules, I conclude that the judge has impliedly taken these matters into account when she subsequently considered these matters outside the Rules under Article 8. In summary, I see no merit in the sole ground of appeal and the decision is free from error.

14.           In light of the above findings, I do not find that there is any merit in the grounds and I do not find that there is any material error of law in the decision of the First-tier Tribunal.

Notice of Decision

15.           The decision of the First-tier Tribunal shall stand.

16.           The appeal to the Upper Tribunal is dismissed.

 

P. Saini 

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

14 February 2025