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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005149
	First-tier Tribunal No: HU/50075/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 19 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE KAMARA

DEPUTY UPPER TRIBUNAL JUDGE L C CONNAL

 

Between

 

SAYED AFSAR SADAT

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE ENTRY CLEARANCE OFFICER

Respondent

Representation :

For the Appellant: Mr M Osmani, legal representative, Time PBS

For the Respondent: Mrs R Arif, Senior Home Office Presenting Officer

 

Heard at Field House on 16 January 2024

 

DECISION AND REASONS

Introduction

1.        The appellant has been granted permission to appeal the decision of First-tier Tribunal Judge Fox who dismissed his appeal following a hearing which took place on 6 August 2024.

2.        Permission to appeal was granted by First-tier Tribunal Judge Chowdhury on 6 November 2024.

Anonymity

3.        No anonymity direction was made previously, and there is no reason for one now.

Factual Background

4.        The appellant is a national of Afghanistan, residing in Pakistan. He sought leave to enter the United Kingdom as the spouse of Pakiza Frough, an Afghan national who resides in the United Kingdom with limited leave under Appendix EU. In the representations accompanying the application, it was conceded that the appellant could not meet the financial requirements because the sponsor had not been working full-time throughout the relevant period, although her income at the time of the application met the requirements of Appendix FM. It was further conceded that the appellant could not meet the English language requirement. The respondent was urged to favourably exercise discretion under GEN.3.2 of the Rules because family life could only be enjoyed in the United Kingdom as the appellant had only a temporary visa for Pakistan and the sponsor could not be expected to go to Afghanistan owing to the dangers faced by women there.

5.        That application was refused in a decision dated 12 December 2023 on the basis that the appellant was unable to meet the financial and English language requirements of Appendix FM to the Immigration Rules. The application was considered under paragraphs GEN.3.1 and 3.2 of Appendix FM however it was considered that there was no information or evidence to establish the existence of any exceptional circumstances. That decision was reviewed on 7 June 2024, however the respondent maintained the reasons for refusal and declined to waive the English language requirement.

The decision of the First-tier Tribunal

6.        At the hearing before the First-tier Tribunal, the appeal proceeded in the absence of the respondent and by way of submissions alone. On the appellant's behalf, it was accepted that there had been a failure to provide specified evidence relating to the sponsor's finances. The judge concluded that the failure to meet the Rules was probative in the human rights assessment and that the appellant could make a fresh application for entry clearance based on the sponsor's current full-time employment.

The appeal to the Upper Tribunal

7.        The grounds of appeal can be summarised as follows:

Ground one - there was a failure to consider the exceptional circumstances regarding the sponsor's inability to take the English test.

Ground two - the judge failed to undertake a thorough proportionality assessment which took into account that the appellant now met the financial requirement.

Ground three - There was a failure to consider the material evidence relating to the appellant's exceptional circumstances and the unjustifiably harsh consequences for the appellant and sponsor.

8.        Permission to appeal was granted on the basis sought.

9.        On 18 December 2024, the Upper Tribunal acceded to the appellant's request for this appeal to be expedited.

10.    The respondent filed no Rule 24 response.

The error of law hearing

11.    The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. A bundle was submitted by the appellant containing, inter alia, the core documents in the appeal, including the appellant's and respondent's bundles before the First-tier Tribunal. The appellant also submitted a skeleton argument.

12.    The hearing was attended by representatives for both parties as above. At the outset, Mrs Arif advised the panel that the respondent did not oppose any of the grounds. While we were somewhat surprised at this stance, we are prepared to accept this concession and do not seek to go behind it.

13.    We communicated our acceptance that the decision of the First-tier Tribunal contained material errors of law and set aside the decision. Mr Osmani requested only that the judge's findings at [16] be retained. We were prepared to retain that paragraph, the remainder of the decision and reasons being set aside. We reproduce that paragraph here for completeness.

The documents within the supplementary bundle do not address the issues at appeal and do not materially affect the outcome of the appeal. The respondent does not raise concerns regarding the legitimacy of the sponsor's employer. Evidence to corroborate a claim not in dispute does not assist the appeal.

14.    The panel carefully considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President's Practice Statements. We decide to do so given that Mr Osmani urged the panel to immediately remake the decision and Mrs Arif was supportive of that request. The sponsor was in attendance and we were informed that she could give evidence in English. Mr Osmani then sent a further bundle of evidence relating to the sponsor's finances by email.

15.    We heard oral evidence from the sponsor, Ms Frough and both representatives made submissions and the conclusions below reflect those arguments and submissions where necessary. Mrs Arif conceded that the appellant could now meet the financial requirements and therefore the only issue remaining in relation to the Rules was the English language requirement.

16.    At the end of the hearing, we reserved the decision on remaking.

Discussion

17.    The burden of proof is on the appellant to establish that the respondent's decision to refuse him entry as a partner amounted to a disproportionate interference with his human rights. As this is a human rights matter, the panel considered the circumstances put forward as at the date of the hearing before the Upper Tribunal.

18.    While Mrs Arif submitted that the sponsor's credibility was in issue, we formed the impression that Ms Frough was not attempting to mislead the Tribunal in relation to her knowledge and understanding of the appellant's circumstances. However we do not accept that an honest account has been given by or on behalf of the appellant regarding the reasons why his visa application was unaccompanied by an English language test certificate.

19.    In the covering letter which accompanied the visa application, the explanation given for the absence of an English language test certificate was as follows:

Unfortunately, the Applicant did not have an opportunity to study let alone study English. Since the Taliban took over in August 2021, no English schools have been operational and all foreign language schools have closed down. Further, with the situation in Afghanistan, he is not able to freely study and he is only temporarily in Pakistan to enrol his biometrics and even if he is able to take the test, he would simply not be able to pass it.

20.    Mrs Arif continued to rely on the respondent's decision letter, in relation to the English language requirement. We take into consideration the respondent's engagement with the reasons given in the covering letter for the appellant's inability to take an English language test, which we set out here.

You have identified no circumstances unique to yourself preventing you from studying and taking an English Language test. A search online shows that there are multiple educational institutions in Kabul open and running, where you are able to study and take a suitable exam for a, at minimum, an UKVI A1 English certificate. Therefore your statement of 'no English schools have been operational and all foreign language schools have closed down', isn't true. You state you are not able to freely study. As there are educational institutions that you may freely enter offering language tests that are available to you, there are also places you can freely go to study with iTTi Kabul noted as 1 such example.

21.    In paragraph 11 of his witness statement prepared for the appeal before the First-tier Tribunal and which is dated 13 February 2024, the appellant engages with the respondent's concerns;

I wish to state that I was unable to study English in Afghanistan due to the discrimination and harassment attached to the English language course. Those who would study English were perceived as "westernised" and could be labelled as "traitors". Now that I am in Pakistan, I am still unable to undergo the English test or study for the English test due to my visa being expired. I came to Pakistan with a temporary visa, and even with that I was unable to take any courses.

22.    At this point, we note that no further information has been provided by the appellant as to what efforts he made to take courses in Pakistan and how he discovered that he cannot undergo the test because of his expired Pakistan visa.

23.    The appellant's skeleton argument dated 19 February 2024 which was before the First-tier Tribunal had the following to say about the English language requirement;

English Requirement

17. It is submitted that the Appellant is a male who would have been able to study English in Afghanistan, however, those who study English are more likely harassed. We make reference to the news article in the objective bundle called "Afghan-British couples kept apart by 'cruel and callous rules on standard of English". Paragraph 3 of this article shows that the test centres in Afghanistan were closed.

18. It is presumed that the Appellant would have been able to take an English course and undergo the English test in Pakistan, however, he is in Pakistan on the basis of his medical visa, prohibiting him from taking the test.

24.    By the time of the hearing before the Upper Tribunal, the arguments in relation to the English test had moved on, albeit unaccompanied by any further witness statement from the appellant or supporting background material. Indeed, the appellant's skeleton argument dated 10 January 2025 makes the following claims at paragraphs 9 and 10.

9 . The FTTJ's suggestion that the Appellant could take an online English language course fails to account for the practical challenges he faces [CB/7: [24]]. Having received limited education in Afghanistan, the Appellant requires significant time-”potentially years-”to prepare adequately for the language test. He has expressed a willingness to undertake the test in the UK, where he would be better equipped to focus and prepare without the overwhelming fear he currently endures. Delaying the appeal prolongs both his unsafe conditions and the time needed to meet this requirement.

10. Finally, the FTTJ overlooked the severe risks associated with the Appellant attending a test centre in Pakistan. His safety would be jeopardized if his presence at such a centre were discovered, given the hostile environment and targeting of individuals in his position. This critical factor, along with the Appellant's unique challenges, was inadequately addressed, underscoring the failure to fully consider the exceptional urgency and danger in this case.

25.    The panel enquired of the evidence showing that the appellant would be at severe risk of attending a test centre in Pakistan and Mr Osmani referred us to the background evidence submitted, in general, without drawing our attention to any particular passage. Having considered that evidence, we do not accept that it shows that the appellant would be unable to attend a test centre without facing immediate deportation to Afghanistan or other ill-harm. Nor was the panel's attention drawn to any documentary evidence indicating that the absence of a Pakistan visa would prevent the appellant from sitting a test.

26.    We note the sponsor's oral evidence which was that the appellant undertook an English language course online in Pakistan. We note that this differs from the appellant's evidence in his witness statement that he was unable to do so because of his expired visa, however we accept that her evidence represented the up to date position. Nonetheless, the sponsor did not have a copy of the certificate she referred to in her evidence so that does not assist the appellant.

27.    The claim that the appellant cannot leave his room in Pakistan owing to the risk of deportation is undermined by the fact that, according to his witness statement, he has been going out to shop for groceries and by the time of the hearing he had been living in Pakistan since November 2023 without adverse incident. He also went out in Pakistan in relation to the visa application, including to provide his biometrics and to undergo a tuberculosis test. In these circumstances, it is difficult to see why he could not go out on an isolated occasion to sit an English language test.

28.    The background evidence in the appellant's bundle dates solely from late 2023/early 2024 and in the main, concerns former refugees, or Afghan nationals eligible for resettlement in the United Kingdom, neither of which applies to the appellant. It focuses in particular on the Pakistan government's announcement on 3 October 2023 that it would carry out mass deportations of foreigners residing illegally in the country, and its implementation of that plan following the deadline of 1 November 2023. 

29.    The Appellant on his own evidence had a valid visa until February 2024, and there was no documentary evidence before the panel as to the situation in Pakistan in relation to Afghan nationals post the period covered by this background evidence. Furthermore, there was no evidence before us to support the assertion made in the Sponsor's evidence and Mr Osmani's submissions that the appellant could not apply to extend his visa or seek a further one.

30.    Given the varying assertions advanced in relation to the English language issue by and on behalf of the appellant, the absence of any reliable supporting evidence or current and relevant background evidence we conclude that it has not been established that the appellant is unable to meet the English language requirement of Appendix FM owing to his circumstances.

31.    We have nonetheless considered whether there are exceptional circumstances in this case which would render refusal of entry a breach of Article 8, as required by GEN.3.2.

GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.

(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.

32.    We have taken into consideration all that has been said on the appellant's behalf as to the difficulties said to face the appellant and sponsor in carrying out their family life if entry clearance to the United Kingdom is not granted. In this we note that much of Mr Osmani's submissions were unsupported either by the appellant, sponsor or any background material. Indeed, the sponsor travelled to Afghanistan to marry the appellant in August 2023 and has subsequently visited him going by the boarding passes enclosed in the appellant's bundle showing that she flew to Kabul, via Dubai, in April 2024. We note that this does not sit well with the claim that the appellant has been in Pakistan continuously since November 2023 or that neither party can safely remain in Afghanistan. We find that the claimed exceptional circumstances have not been made out on the evidence before us.

33.    Considering Article 8 ECHR, it is undisputed that there is family life between the appellant and sponsor. We accept that the refusal of entry amounts to a degree of interference with that family life, however the appellant and sponsor can continue their relationship by way of the sponsor visiting the appellant and telephone calls as they currently do. We find that the decision of the respondent is lawful and necessary in the interests of maintaining an effective immigration control.

34.    In considering the proportionality of the decision under challenge, the starting point is that the appellant cannot meet the requirements of Appendix FM which is a weighty factor. There was no evidence before us to suggest that the appellant speaks English which is a factor on the respondent's side of the scale.

35.    Nonetheless, the respondent accepts that the financial requirements are met and indeed, the sponsor has ample savings from her employment at her brother's company. That the appellant would be financially independent is a neutral factor in the balancing exercise.

36.    Lastly, we have carefully considered the submissions we heard to the effect that the appellant's life is at risk in Pakistan and Afghanistan. Mr Osmani suggested that the appellant could potentially be picked up or robbed as an Afghan and that he could not "even venture outside."

37.    Mr Osmani further suggested that the appellant would be at risk at the British Council test centre itself because it is very heavily protected by security. He also submitted that the appellant would be at risk from the Taliban if he returned to Afghanistan. We note that these claims have emerged gradually during the course of this appeal and are unsupported by little detail or evidence. As we do not accept that a credible account has been given of the appellant's circumstances including his reasons for not taking an English language test in Pakistan, those submissions are of no assistance in balancing the competing claims. Considering all the evidence in the round, we conclude that the decision of the respondent was proportionate.

Conclusions

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

We set aside the decision to be re-made.

We substitute a decision dismissing the appeal.

Notice of Decision

The appeal is dismissed on human rights grounds.

 

T Kamara

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

17 February 2025

 

NOTIFICATION OF APPEAL RIGHTS

 

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal's decision was sent:

 

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

 

3. Where the person making the application is in detention under the Immigration Acts , the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

 

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

 

5. A "working day" means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

 

6. The date when the decision is "sent' is that appearing on the covering letter or covering email.