Case No. UKUT-00129-(IAC)

because ( i ) she had not provided evidence to show she had been living with her partner for at least two years and therefore she was not a “partner” as defined in GEN.1.2. of Appendix FM of the Immigration Rules; and ( ii ) she was in the UK as a visitor and therefore by operation of E-LTRP.2.1 of Appendix FM was not eligible to be granted leave as a partner even if (which was accepted) there would be insurmountable obstacles to family life with her partner continuing outside the UK ; b. s he did not meet any of th e private life routes to leave under paragraph 276ADE(1) ; and c. r efusing leave would not result in an unjustifiably harsh consequence that would breach Article 8 because , having entered the UK as a visitor, she had no legitimate expectation of being able to remain permanently ; and her daughter ’s rights as a British citizen would not be denied by her removal because the child could remain in the UK with her father. B. Scope of the Appeal and Issues in Dispute 8. Mr Lindsay, in his skeleton argument, accepted that: a. t here are insurmountable obstacles to the appellant’s family life continuing outside of the UK ; and b. i t would not be reasonable or proportionate for the family unit to be indefinitely separated . 9. He stated that , on the facts of the case , the appellant is expected to leave the UK for only a limited period of time in order to apply for entry clearance to join her partner and that the “narrow issue” in the appeal is whether her temporary removal from the UK is proportionate. In his submissions, Mr Lindsay clarified that it is the respondent’s case that the appellant will be able to travel to Pakistan in order to apply for entry clearance and that it is not contended that she would be able to return to the United Arab Emirates. 10. The appellant ’s primary case is that respondent’s assumption that she would be able to re-enter the UK from Pakistan is mistaken as she would be unable to satisfy the financial eligibility requirements for entry as a partner . Accordingly , she contends that her appeal should be allowed because the consequence of her removal will be permanent, or at least long-term, exclusion from the UK which the respondent has conceded is not reasonable or proportionate. 11. In the alternative, the appellant argues that if (which she does not accept ) she would be able to re-enter the UK after only a limited period of time , her removal wound be disproportionate under article 8 ECHR for three reasons . 12. First, s he argues that her removal would be disproportionate because she meets the requirements of the Immigration Rules ( both under para. 276ADE( 1)(vi) and Appendix FM ) and satisfying the Rules is determinative of an article 8 appeal, as explained by the Senior President of Tribunals (Sir Ernest Ryder) in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109 at paragraph 34: [W] here a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person's article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed. 13. Second, she submits that there is a principle, derived from the House of Lords ’ judgment in Chikwamba v SSHD [2008] UKHL 40 , that there is no public interest in removing a person from the UK in order to make an entry clearance from abroad that would be certain to succeed ( referred to by Mr S arwar as the “ Chikwamba principle”) . The appellant’s case is that as she would succeed in her application from outside the UK it follows that she falls squarely within the Chikwamba principle and her appeal should be allowed on that basis . 14. Third, she argues that it would not be reasonable to expect her daughter to leave the UK (even for a temporary period , whilst her application for entry clearance is pending ) and therefore, in accordance with s117B(6) of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) , the public interest does not require her removal . 15. The appellant has advanced a further argument as to why it would be unlawful to remove her from the UK . This contention is that she is entitled to a right of residence in order to avoid her daughter being deprived of the genuine enjoyment of the substance of her European Union Citizenship rights in accordance with Ruiz Zambrano v Office national de l’emploi (Case C-34/09) and Patel v Secretary of State for the Home Department [2019] UKSC 59 . C. Evidence Evidence of the appellant 16. The appellant adopted her witness statement dated 15 April 2019. 17. In the statement s he state d that she lives with her partner, who is her fiancé. 18. She also state d that she is the main carer for their daughter and that her partner finds it difficult to undertake day-to-day care for the child. She state d that if she were to leave the UK she would bring her daughter with her as her partner would not be able to combine caring for her with his work commitments as well as the care he provides for his two sons (from a previous relationship) on weekends and during school holidays. In oral evidence, she explained that her daughter started nursery in November 2019 and commented that this is going well. 19. The appellant also state d in her statement that she was born in Dubai where she has lived most of her life . In oral evidence, she stated that her mother died in 2012 , she has three siblings in Dubai, and her brother and father live in the UK. 20. Both in her statement and orally the appellant state d that she has only ever been to Pakistan on short visits (staying in hotels, rather than with family or friends) and t hat she does not have any family members in Pakistan upon whom she could rely for support . S he stated that she had not even visited Pakistan until she was 15 years old and that she would find it very difficult to settle and integrate into Pakistan. 21. She state d that she cannot return to Dubai as she does not have a valid visa. 22. She also state d that her partner “will not allow” her to take their daughter abroad. 23. The appellant was asked by Mr Lindsay whether, when she stated in the 2016 application that she only wished to remain in the UK for a further 6 months her intention , at that time, was to return to Dubai or relocate to Pakistan. The appellant’s response was that she would have tried to return to Dubai but following the expiry of her visa at the end of 201 6 this was no longer an option . She also stated that because her father was now living in the UK she was unable to renew her visa to live in Dubai . She stated that she did not remember when her father moved to the UK. 24. When asked by Mr Lindsay why she did not leave the UK as she said she would in the 2016 application, she responded that she did not receive a response to her application from the Secretary of State. She also stated that her daughter had asthma, flu and respiratory problems and because of this her partner did not allow her to take the child out of the UK . She acknowledged that no evidence about her daughter’s health had been submitted but said it must be in hospital records. 25. In cross-examination, she said she could not take her daughter to Pakistan, even for a short time, because they would have nowhere to stay. She also stated that her daughter is well settled at nursery and is too young to go to Pakistan with her. She added that whenever the appellant had been to Pakistan she had fallen ill. 26. She emphasised in her oral evidence that she would be alone in Pakistan . In response to questions posed by Mr Lindsay about extended family, she stated that she did not know any one and that any connection to wider family she had in the past was via her mother who is deceased and she ha s no knowledge about any extended family. 27. Mr Lindsay asked the appellant about her Pakistani identity card which records a permanent address in Pakistan . Her response was that the address was for a relative of her mother who is now deceased . She added , following a question posed by Mr Sarwar, that it is necessary to have a permanent address to obtain an ID card from Pakistan. 28. The appellant was asked about the reference to an uncle in Pakistan in the decision of the First-tier Tribunal. She stated that this was a relative of her mother who is deceased . When asked to clarify, she stated that the relative was deceased but she did not know when he died or if he had children. She thought the address on her ID card is that of th is deceased relative . 29. She stated that she did not know if her partner (who is of Pakistani heritage) had family in Pakistan and that they had never discussed this. 30. In response to questions about her partner’s work, she said that he is a carpet fitter who works “on and off” earning between £200 and £300 a week. 31. Mr Lindsay asked the appellant about the 2016 application and the 2018 application. She stated that the forms were completed on her behalf by her solicitor. Evidence of the appellant’s partner 32. The appellant’s partner adopted his witness statement dated 15 April 2019. 33. In his statement he state d that the appellant is the main carer for their daughter and that because of his work commitments he is unable to look after her. He also state d that he would not be able to cope with looking after her. 34. He state d that he and the appellant enjoy a family life with his two sons from a previous marriage. 35. He also state d that due to the nature of his work and financial commitment of supporting three children he would find it difficult to meet the financial requirements for his partner to be granted entry clearance. 36. In oral evidence he stated that he is a carpet fitter on a zero hours contract earning £250-£300 a week “cash in hand”. He stated that he was a carpet shop proprietor a n umber of years ago for a short period but it had not gone well. In response to questions about his income, he said that he would not be able to earn £19,000 – £20,000 , which he under stood was the level required for his partner to be admitted to the UK. When asked why, in the 2018 application, it was said that he earned £1,600 a month after tax, his response was that his income goes up and down and he can have some good and some bad months; but he does not earn near that amount and it is impossible to do so in his line of work. 37. He stated that all his family live in the UK and he does not have any extended family in Pakistan . 38. He stated that his partner used to have an uncle in Pakistan but that he has now moved to the UK. He stated that his partner speaks to this uncle on the telephone now and then. He also stated that his partner did not have any other extended family in Pakistan. In response to Mr Lindsay pointing out that the appellant had said her uncle had died, he s tated that this was probably a different uncle and that he did not really know the details. Documentary evidence 39. In the 2016 application form the appellant stated that her place of birth was Dubai. She stated that she was 30 weeks pregnant and the purpose of the application was to obtain a further 6 months leave in order to have her baby and recover fully before leaving the UK. 40. In the 2018 application form she gave Pakistan as her place of birth. She stated that the relationship with her partner began in 2015 and that they began cohabiting in May 2016. She stated that her partner earned approximately £1,600 a month after income tax and other deductions. 41. The appellant’s daughter’s birth certificate records the occupation of the appellant’s partner as “carpet shop proprietor”. 42. On the birth certificate of his oldest son (born in 1982) , the appellant’s partner is described as a “restaurant proprietor”. The birth certificate of his younger son (born in 2003) describes his occupation as “sales assistant”. 43. The appellant’s identification card from Pakis tan (issued in January 2010 and expiring in January 2020) records an address in Dubai as her present address and under the heading “permanent address” records an address in Pakistan. 44. The appellant submitted a letter from her daughter’s nursery stating that the child is progressing well and has developed friendships with peers ; a letter from her GP confirming she is registered with the practice (along with her partner and child); a letter from a friend confirming a longstanding friendship ; and a letter from a neighbour attesting to the good character of the appellant and her partner . 45. The documentary evidence before us regarding timescales for entry clearance applications to join a family member in the UK i ndicates that it takes up to 12 weeks from attending the visa application centre appointment to receive a decision, or 30 days if the priority service is paid for. Assessment of the evidenc e 46. Mr Lindsay submitted that the appellant and her partner had sought to obscure and minimise their connection to Pakistan . He argued that the evidence pointed to the appellant having an uncle in Pakistan who is sufficiently close to her that she was able to use his address for her identification document. He maintained that the appellant and her partner gave contradictory evidence about the uncle: the appellant stated that he is deceased whereas the evidence of her partner was that the appellant speaks to him on the telephone. 47. Mr Lindsay argued that it is not possible to conclude, based on the oral and other evidence , that the appellan t and her partner would face difficult ies meeting the financial eligibility requirement for entry clearance. He noted that in the 2018 application form the after tax income of the appellant’s partner was recorded as £1 , 600 per month ( a sum which is sufficient to meet the financial eligibility requirements) and that on his daughter’s birth certificate he is described as a proprietor of a carpet shop. He submitted that there was no plausible explanation for the discrepancy between the income stated in the 2018 application form (£1 , 600 per month) and that stated in oral evidence (£250 – £300 a week). 48. Mr Sarwar argued that the evidence of the appellant and her partner about the appellant ’s uncle was not inconsistent as the appellant could have more than one uncle and her partner was not asked if any of the appellant’s relatives had died. Mr Sarwar noted that the appellant’s Pakistani ID card was issued whilst her mother was still alive, which is consistent with her claim that her only contact with extended family in Pakistan was via her mother. 49. He argued that the evidence of the appellant and her partner show s that neither have family ties in Pakistan and that there is no one in Pakistan who would be in a position to provide the appellant with support or accommodation. He highlighted that the appellant has lived her whole life in Dubai and has no experience of life in Pakistan. 50. With respect to the prospect of the appellant succeeding in an application for entry clearance, Mr Sarwar noted that the appellant’s partner would need evidence , such as wage slips and self-assessment returns, to prove his income which would not be possible given that he works “cash in hand”. He noted that the reference to the appellant’s partner being a shop proprietor was 3.5 years earlier, and the evidence was that the shop had not been successful. Mr Sarwar submitted that the evidence shows that if t he appellant is removed from the UK she will not be able to return. 51. Mr Sarwar also submitted that the evidence shows that the appellant has not used deception and has “done everything through the front door” . He argued that she had intended to return to Dubai to apply for settlement but because of her child’s health issues was forced to change her plans. He also contended that because of the delay by the respondent the appellant has established ro ots in the UK and now has a close relationship with her partner’s two sons. 52. We agree with Mr Linds a y’s assessment of the evidence . It is apparent that rather tha n state matters in a straightforward way the appellant and her partner have sought to present their evidence in a w ay t hat they believe will assist them. An example of this is the evidence given about the appellant ’s partner’s income . I n the 2018 application form the appellant stated that her partner earned approximately £1,600 a month after income tax and other deductions. This corresponds to £19,200 before tax a year and would be sufficient to meet the financial eligibility requirements under Appendix FM. The appellant stated in oral evidence that th is f o rm was completed by a solicitor on her behalf . S he would have been aware (through her solicitor) of the importance of providing accurate information . We note that at the time this form was completed the appellant is likely to have believed that it was in her interests for her partner to have an income that met the requirements under Appendix FM. In contrast, at the hearing before us, where we were told in oral evidence that the appellant’s partner earns £250-£300 per week (corresponding to £13,000 - £15,600 per year) , the appellant was seeking to convey the opposite - that her partner’s income did not meet the threshold under Appendix FM . 53. We f ound several aspects of the oral evidence problematic . In particular: a. The appellant stated that she had never spoken to her partner about whether he has any family in Pakistan (even though he is of Pakistani heritage ). We find it wholly unbelievable that, faced with the possibility of being returned to Pakistan with their daughter, the appellant and her partner would not have discussed whether the appellant ’s partner has any family or friends in Pakistan who might be able to provide assistance . b. The appellant stated that she had no idea when her father moved to the UK . We do not find it credible that she did not even know whether her father was already in the UK when she came to the UK , given her claim to be entirely dependent upon him for her right to reside in the United Arab Emirates. c. The appellant stated that she does not know whether her uncle had any children. Even if she only heard about her family through her mother and is not in contact with them herself , it is not p lausible that she would not know if she ha s any cousins . d. The appellant claimed that when her family visited Pakistan from Dubai they would stay in hotels and not visit family ; and that she has never met any extended family . However, this does not stand with the appellant’s acknowledgment that her mother’s brother lived in Pakistan , the evidence of her partner that she speaks to h er uncle on the tele phone, and the documentary evidence – in the form of her Pakistani identity document – which gives an address that she accepted was probably his as her “permanent address” . e. It is not credible that the appellant , if she genuinely intended to return to Dubai after her child was born (as she stated in oral evidence) , would not have taken steps to ensure she remained entitled to reside in Dubai before her United Arab Emirates’ visa expired at the end of 2016. Similarly, g iven that she had no basis for believing she would be able to remain in the UK , it is not plausible that , if moving to Pakistan would be as challenging as she claims, she would not have taken steps to ensure that she would be able to return to Dubai in order to avoid the risk of having to relocate to Pakistan. 54. We also found th at there was a n inconsistency between the appellant’s claim that she has never had contact with any family in Pakistan and the evidence of her partner that she speaks on the telephone to her uncle who recently moved to the UK from Pakistan. We were left with the clear impression , following Mr Lindsay’s cross-examination of the appellant, that she failed to mention her uncle – and then stated that he was deceased – as part of an attempt to minimise and downplay the extent of her ties to Pakistan. We do not accept Mr Sarwar’s attempt to suggest the appellant and her partner might have been talking about different people. 55. In addition, w e found the evidence about the income of the appellant’s partner to be unreliable not only because of the substantial discrepancy between the income stated on the 2018 application form and the oral evidence but also because the appellant’s partner contradicted himself by stating in answer to one question from Mr Lindsay that he could earn £1,600 in a good month and in response to another question that it would be impossible to earn that much as a carpet fitter . 56. We also noted that the appellant’s evidence about her daughter’s health difficulties was not corroborated by the letter from the child’s nursery, which describes her as healthy; or the letter from the appellant’s GP practice , which includes no reference to there ever having been any health concerns. Likewise, there was no medical or other evidence to corroborate the appellant’s claim that she was warned not to travel when pregnant because of a miscarriage risk. 57. For these reasons, we approach the witness evidence of the appellant and her partner with a high degree of caution . Moreover, we are unable to rely on their oral evidence about the presence of family in Pakistan and the earnings of the appellant’s partner as it is apparent to us that the y have sought to portray these matters in a way that they believe would be favourable to the appellant’s claim. D. Findings of Fact 58. T he appellant was born , and has lived most of her life , in the United Arab Emirates. 59. The appellant is in a genuine and subsisting relationship with her partner who is a British citizen . They have a daughter, born on 6 September 2016 , who is a British citizen. 60. The appellant lives with her partner and child as a family unit. Her partner has two (British citizen) teenage sons from a previous relationship who he sees regularly (primarily on weekends and holidays). The appellant has developed a relationship with her partner’s sons. 61. The appellant travelled to the UK from the United Arab Emirates in May 2 016 (whilst pregnant with the child of her British citizen partner) as a visitor . Their relationship was subsisting at the time. The appellant claims that her intention was to return to the United Arab Emirates and it is only because of difficulties with the pregnancy, and then with her child’s health , that she did not do so . However, s he did not adduce any medical evidence to support her claim to have been unable to return to the United Arab Emirates either whilst pregnant or shortly after the child was born. Nor has she explained why she did not return to Dubai prior to her United Arab Emirates residency visa expiring in order to avoid a situation where her only option , other than to remain in the UK, would be to return to Pakistan , where she claims she would be without any support or accommodation . We have no doubt, and find as a fact, that the appellant entered the UK with the intention of giving birth and remaining with her partner perman ently. We also find that she had this intention when she completed the 2016 application form in which she stated she only wished to remain in the UK for a further six months. 62. The appellant has never lived in Pakistan . However, along with her immediate family , she has maintained a connection to the country , visiting on several occasions . We find it far more likely than not that on those visits she stayed with family, rather than in hotels. We also find – in the absence of any evidence pointing to the contrary – that it is more likely than not that she is familiar with the language, culture, religion and societal norms of Pakistan, having grown up in a Pakistani family and within the Pakistani community in Dubai . 63. For the reasons explained above, t he evidence we heard from the appellant and her partner about the presence of (and her relationship with) extended family in Pakistan was not credible. We find it more likely than not that the appellant has - and maintains a relationship with - extended family in Pakistan . 64. The appellant’s partner works as a carpet fitter. He works under a “zero hours contract” taking on work when available. The evidence indicates that he has extensive experience in the field, having previously been a carpet shop proprietor. In the 2018 application form the appellant indicated that her partner’s income was at a level that would be sufficient to meet the financial eligibility requirements under Appendix FM. Her (and her partner’s) oral evidence , however, was that his income is substantially below that level and it would not be possible for him to meet the threshold. We have explained above why we are unable to give any weight to the oral evidence we heard on this issue. We find it more likely than not that the appellant’s partner’s current income meets the financial eligibility threshold but that even if it does not he could in a short space of time increase his income (by, for example, taking on more carpet fitting work from different sources) in order to meet the threshold. 65. Taking into consideration the time it is likely to take to compile the necessary evidence for an entry clearance application, to secure an appointment in Pakistan, and to receive the decision once the application is made, we find that the appellant will be out of the UK (in Pakistan, awaiting a grant of entry clearance) for between 4 and 9 months. 66. The appellant is the primary carer for her daughter. Given her partner’s work commitments and the child’s young age, it is more likely than not that the appellant w ill bring her daughter with her to Pakistan if she is required to leave the UK. 67. The appellant’s daughter is a healthy child with no developmental or other problems. 68. There was no evidence to suggest that the appellant has any health difficulties and therefore we find that she does not have any physical or mental health problems. E. Analysis The respondent ’s concession that i t would be disproportionate for the appellant to be removed unless she would be able to re-enter the UK 69. The respondent has conce ded that there are insurmountable obstacles to family life continuing outside the UK and that it would not be reasonable or proportionate for the appellant’s family unit to be indefinitely separated . I t follows, therefore, that if the appellant would be unable to re-enter the UK after her removal for an indefinite (or lengthy) period her appeal would fall to be allowed on the basis of the respondent’s concession . 70. The appeal cannot , however, succeed on this basis because we have found that the appellant w ill be able to re-enter the UK within 4 – 9 months of her removal, and therefore there will not be indefinite , or lengthy, separation . Entitlement to leave under the Immigration Rules 71. Mr Sar war argued that the appellant satisfies the requirements of para. EX.1(b) of Appendix FM (insurmountable obstacles to family life with a partner continuing outside the UK) and her appeal should be allowed on this basis. Mr Lindsay argued, in response, that para. EX.1 is not freestanding and the appeal c annot succeed under Appendix FM because the appellant was a visitor in the UK when she made her application . 72. Mr Lindsay is plainly correct. It is not sufficient, in order to satisfy the requirements of Appendix FM, that a partner of a UK citizen is able to show that there would be “insurmountable obstacles” to the relationship continuing outside the UK. It is also necessary to satisfy certain of the eligibility requirements specified in paragraph E – LTRP, including that the applicant must not be in the UK as a visitor (E-LTRP.2.1). The appellant had leave as a visitor when she submitted the 2016 application and that leave continued – and continues – by operation of s ection 3C of the Immigration Act 1971. She therefore does not satisfy the Rules because she does not meet the eligibility immigration status requirement at E-LTRP.2.1. 73. Mr Sarwar also argued that because the appellant has never lived, and has no family or accommodation, in Pakistan, there would be very significant obstacles to her integration in Pakistan and therefore she satisfies the requirements of para. 276ADE (1) (vi) of the Immigration Rules. Mr Lindsay argued that this contention has no merit because under para. 276ADE(1) it is necessary to look at the position at the date of the application and at that date the appellant had only been in the UK for a very short period of time. 74. We reject the argument that the appellant satisfies para. 276ADE(1)(vi) for two reasons. First, at the date of the appellant’s application (which, as submitted by Mr Lindsay, is the relevant date) the appellant would, by her own account, have been able to return to the United Arab Emirates, a country in which she has lived nearly all her life and in which she has close family. Clearly, she would not face very significant obstacles integrating into the United Arab Emirates . 75. Second, and in any event, there are not very significant obstacles to the appellant integrating into Pakistan. In Kamara v SSHD [2016] EWCA Civ 813 Sales LJ explained that the concept of integration is a broad one . He stated: “The idea of integration calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it so as to have a reasonable opportunity to be accepted there, to be able to operate on a day by day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life” . 76. Although t he appellant has never lived in Pakistan and would consequently face some difficulties and challenges establishing herself in the country, she is familiar with the language, culture, religion and societal norms of Pakistan, having grown up in a Pakistani family and within the Pakistani community in Dubai. She also has maintained a connection with extended family in Pakistan, including family members whose address she has used for her identity card and with whom she has stayed on family visits. Given her background and family connections, we are satisfied that the appellant would be an insider in Pakistan, in the sense that she would have an understanding as to how life is carried on and the ability to integrate and be accepted. The difficulties and challenges she would face integrating fall a long way short of being “very significant obstacles”. 77. It was not argued before us that the assessment of very significant obstacles under para. 276ADE(1)(vi) should take into account the length of time the appellant would be outside of the UK . It is not necessary for us to consider this issue – and therefore we do not do so - because, on the facts of this appeal , the re would not be very significant obstacles to integration in Pakistan whether the appellant remained there permanently or for a short period.