An Overview of a Human Rights Appeal Case in the Upper Tribunal Immigration and Asylum Chamber – IA/0042/2021
On 5th July 2022, the appellant appealed a decision of the Judge of the First-tier Tribunal Ghandi (“the judge”) who dismissed her appeal against the decision made by the respondent on September 11, 2020, which refused the appellant’s human rights claim. The appellant’s reasons for appeal were that she argued there was new arguing evidence to support her claim.
The appellant, a citizen of Pakistan born on December 31, 1985, had entered the UK unlawfully in 2005 and developed a relationship with her now British husband, living in the UK with him without any leave. In addition, her husband’s mother, who has significant health difficulties and requires care, lives with her and her husband. The appellant’s claim is that if she is removed from the UK, it would be in breach of article 8 of the European Convention on Human Rights (ECHR), which protects the right to respect for private and family life.
Decision of the Initial judge:
The initial first-tier Tribunal judge had considered the appellant’s claim in a decision made in December 2018 and had rejected it.
The judge had accepted that the appellant had a family life in the UK with her husband but had not accepted that her relationship with her mother-in-law amounted to family life under article 8(1) of the ECHR. The judge had also considered whether there would be insurmountable obstacles to the appellant’s relationship with her husband continuing in Pakistan and concluded that there would not be any. The judge had attached little weight to the appellant’s private life and family life as she had entered the UK illegally and never had a lawful basis to be there. With respect to the appellant’s mother-in-law, the judge had found that the appellant provided support to her, but this was a matter of choice and not a requirement.
The decision of the current judge in the current case:
In the current case, the judge observed that the issues before him were the same as those before the previous judge, although there was some new evidence to support the appellant’s case. The judge considered whether the appellant and her sponsor, pursuant to EX.1 of Appendix FM, would face insurmountable obstacles continuing their relationship in Pakistan and concluded that they would not.
What does EX.1 of Appendix FM state:
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with protection status, in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), or in the UK with limited leave as a worker or business person under Appendix ECAA Extension of Stay in accordance with paragraph GEN.1.3.(e), and there are insurmountable obstacles to family life with that partner continuing outside the UK.
He also considered whether the appellant would face very significant obstacles integrating in Pakistan and concluded that she would not. The judge accepted that family life exists between the appellant and her husband but rejected the argument that there was family life between the appellant and her mother-in-law, arguing that the ties between the appellant and her mother in law was not “over and above the normal emotional ties between adult relatives”.
What factors may prove your relationship is above the normal emotional ties?
Is it possible to establish dependency in your relationship, for example, through having a family member reside with you? Is your family member suffering from a medical illness, and if so, is your family member reliant on you to care for these medical issues? Is a member of your family financially dependent on you? These are a few factors to consider when determining if the relationship goes above normal emotional ties between adult relatives.
The judge found that the appellant’s poor immigration history weighed heavily against her in the proportionality assessment. Although the judge rejected the argument that family life existed between the appellant and her mother-in-law, he considered how the appellant’s mother-in-law might be affected by the appellant’s removal. The judge found that there was no reason why the numerous family members of the mother-in-law in the UK could not take care of her if the appellant was no longer able to assist her.
Additionally, the appellant argued that it would be disproportionate to expect her to leave the UK to apply for entry clearance when that application would inevitably succeed. The judge briefly addressed this argument, stating that the appellant had not provided any evidence to support her claim.
Grounds of appeals and submission:
Ground 1 argues that the judge erred by not considering the appellant’s argument that she would meet the Immigration Rules if she applied for entry clearance from abroad, which is relevant to the Chikwamba principle.
What is the Chikwamba principle:
Chikwamba, a 2008 House of Lords decision, is frequently cited to support the idea that if a person residing in the UK unlawfully would be certain to be granted leave to enter by making an application from outside the UK, there might not be a public interest in her removal.
Mr Whitwell, the Home Office presenting officer, argued that Chikwamba did not apply to the appellant because there was uncertainty about whether she would succeed in obtaining entry clearance and relocating to Pakistan would not be disproportionate.
Ground 2 concerns a discrepancy in the evidence about the whereabouts of the appellant’s passport, but it was not pursued.
Ground 3 argues that the judge erred in finding that the appellant and her mother-in-law do not enjoy a family life within the meaning of article 8 ECHR, given the appellant’s role caring for her mother-in-law. Mr Whitwell argues that the previous judge found that there was no family life and there was no evidence to show that the circumstances had materially changed. He also argued that this is a rationality challenge and the high threshold of irrationality has not been met.
Ground 4 argues that the judge did not adequately assess the effect of the appellant’s removal on her mother-in-law and failed to take into account all relevant evidence, including the extent of the care that the appellant provides. Mr Whitwell argued that the effect on the mother-in-law was given full consideration and the judge’s conclusion was open to him.
Analysis:
The case concerns the appellant arguing that it would not be proportionate under article 8 ECHR to remove her to Pakistan as her application for entry clearance from Pakistan would bound to succeed, citing the Chikwamba case. The Court of Appeal considered the scope of Chikwamba and found that it does not state any general rule of law which would bind a court or tribunal and 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. The judge did not err in finding that there was no family life engaging article 8 between the appellant and her mother-in-law, and even if there was, any error would be immaterial as the relationship was established when the appellant was in the UK unlawfully and should ordinarily be given little weight (see Rajendran (s117B – family life) [2016] UKUT 00138 (IAC)).
Conclusion:
In conclusion, the First-tier Tribunal judge rejected the appellant’s appeal that her removal would significantly negatively impact on the wellbeing and health of her mother in law and upheld the decision of the respondent to refuse her human rights claim. The judge found that the appellant would not face any significant obstacles integrating in Pakistan and that the ties between the appellant and her in-laws were not over and above the normal emotional ties between adult relatives. The judge also found that there was no reason why the health of the appellant’s mother-in-law would deteriorate if the appellant had to leave the UK, given that the mother in law lives in close proximity to multiple close family members. The appeal was therefore dismissed.
By: Jenny Comani