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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-001927
	First-tier Tribunal No: HU/52488/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 24 March 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE CANAVAN

DEPUTY UPPER TRIBUNAL JUDGE SINGER

 

Between

 

RUPINDER KAUR

(NO ANONYMITY ORDER MADE)

Appellant

and

 

ENTRY CLEARANCE OFFICER (SHEFFIELD)

Respondent

Representation :

For the Appellant: Mr Garrod, of counsel

For the Respondent: Mr Tufan, Senior Presenting Officer

 

Heard at Field House on 19 February 2025

 

DECISION AND REASONS

1.        The Appellant is an Indian national born on 16 October 1987, who appeals the Respondent's decision of 7 February 2023 ("the refusal letter"), refusing her application for leave to enter as the partner of Mr Sandip Singh Jawanda ("the sponsor"), who is a British citizen.

2.        In the refusal letter, the Respondent accepted that the relationship, financial and English language requirements of the Partner Route were met, but asserted that, because of the Appellant's immigration history, her application fell for refusal with reference to paragraph 9.8.2 of Part 9 of the Immigration Rules and also with reference to S-EC.1.5 of Appendix FM.

3.        The Appellant appealed on the ground that the decision breached her right to a family life under Article 8 ECHR. Her appeal was dismissed by First-tier Tribunal Judge Sullivan ("the Judge") in a decision sent on 22 February 2024. That decision was set aside in a decision issued on 9 January 2025, by Knowles J and Upper Tribunal Judge Canavan. It was found that the Judge failed to undertake any balancing exercise with regard to relevant matters to be considered under paragraph 9.8.2(c), or in relation to proportionality under Article 8 ECHR. The whole decision of the Judge was set aside. After some discussion and observations by the Tribunal as to the absence of up-to-date medical evidence regarding the sponsor's father, and the lack of any witness statement from the Appellant, the parties decided that further evidence might need to be filed and served, so the matter was adjourned to a resumed hearing, with directions made for the service of evidence. A direction was later made that the resumed hearing could be heard by a differently constituted panel.

4.        The matter came before us for resumed hearing on 19 February 2025. The only further evidence served was a three-page statement from the sponsor, running to 12 paragraphs. Both parties said they were ready to proceed and did not seek an adjournment. We heard oral evidence from the sponsor, submissions from both parties, and our decision was reserved.

5.        We have considered all of the evidence in the round. We refer to the evidence where necessary in relation to the issues in dispute, but we do not refer to each and every piece of evidence, even though all of the evidence has been taken into account.

Legal framework

6.        In deciding whether the refusal breaches the Appellant's right to respect for her family life under Article 8 ECHR, we adopt the structure proposed by the Senior President of Tribunals in TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109 at paragraphs 22 and 34.

7.        At the time of refusal, the Immigration Rules stated [1], at Part 9, where relevant:

"9.8.2. An application for entry clearance or permission to enter may be refused where:

(a)     the applicant has previously breached immigration laws; and

(b)    the application was made outside the relevant time period in paragraph 9.8.7; and

(c)     the applicant has previously contrived in a significant way to frustrate the intention of the rules, or there are other aggravating circumstances (in addition to the immigration breach), such as a failure to cooperate with the redocumentation process, such as using a false identity, or a failure to comply with enforcement processes, such as failing to report, or absconding."

8.        The Immigration Rules stated at Section S-EC of Appendix FM:

"S-EC.1.1. The applicant will be refused entry clearance on grounds of suitability if any of

paragraphs S-EC.1.2. to 1.9. apply.

...

S-EC.1.5. The exclusion of the applicant from the UK is conducive to the public good because, for example, the applicant's conduct (including convictions which do not fall within paragraph S-EC.1.4.), character, associations, or other reasons, make it undesirable to grant them entry clearance."

9.        It has long been established that, in a case where the Respondent relies upon the general grounds for refusal, the burden of proof is on the Respondent to establish any contested precedent fact: (see, for example, JC (Part 9 HC395- burden of proof) China [2007] UKAIT 00027). The Respondent accepts in her published policy guidance [2] that the burden of proof is on her to show that a person has previously breached immigration laws.

10.    Approach to credibility: we have considered all of the evidence and submissions in the round applying the guidance in the authorities including KB & AH (credibility-structured approach) Pakistan [2017] UKUT 49 and Mibanga v SSHD [2005] EWCA Civ 367. The former Senior President of Tribunals (Ryder LJ) identified in Uddin [2020] EWCA Civ 338, at [11], the utility of the self-direction long-established in criminal proceedings by R v. Lucas (Ruth) [1981] QB 720: if a court concludes that a witness has lied about one matter, it does not follow that s/he has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure. That is because a person's motives may be different as respects different questions. We are also therefore mindful of this self-direction, and that a person may exaggerate, or embellish, a strong claim simply because of a fear of losing an appeal. We also appreciate that someone may not be truthful because of shame of earlier bad behaviour.

Findings of fact

11.    The fact-finding assessment in this appeal has been made less straightforward by the failure of both parties to file and evidence which ought to have been obtainable. The Respondent cited in her refusal letter what was said to be the Appellant's immigration history from the Respondent's records, but did not, for example file and serve the curtailment letter itself, or the GCID or Atlas system print out from which this information would ordinarily derive. The evidence is somewhat fragmentary and piecemeal. We have therefore been compelled to make our findings by judging the inherent probabilities of the combination of the pieces of evidence before us and making reasonable inferences where appropriate, but we do not speculate on matters where there is no evidence. For reasons which follow we have found that some of the dates and timeframes cited by the Respondent as to the Appellant's immigration history are not reliable. There is, remarkably in a case of this nature (and even more so given what was said at the conclusion of the error of law hearing), no witness statement from the Appellant, setting out her response to the refusal letter and explaining in detail her immigration history, and the impact of refusal of entry clearance on her.

12.    Although the immigration history cited by the Respondent in the refusal letter (at page 269 of the consolidated bundle ("CB")), only commences with the issuance of a student visa in February 2014, we accept that the Appellant entered the UK on 18 August 2012 on a student visa which was valid until 30 September 2013, because this is consistent with the endorsement on her passport at page 235 CB.

13.    We also accept that before the expiry of that visa the Appellant made a further application to study at Vista Business College ("VBC"), with a CAS letter assigned to her on 10 September 2013 (p.292 CB). That was in respect of a course which was to run from 1 October 2013 to 17 April 2014. The document on page 295 CB is more likely than not an acknowledgement from the Respondent in relation to that application on 19 September 2013, addressed to the Appellant at an address which we describe as "28 [RW]". The Respondent in the refusal letter says that the Appellant on 28 February 2014 was issued with a student visa valid until 30 April 2016. Looking at the CAS letter from the College we find that this is probably a transposition error and it is reasonable to infer that the Appellant might have been issued with a student visa until a date in later 2014, not 2016, because the VBC course was due to end on 17 April 2014.

14.    The Appellant says (and it is not disputed by the Respondent) that VBC was shut down. We are not given the precise date for the closure of the college, and the evidence is unclear on this. Having regard to page 296 CB, we note the evidence purporting to show that a CAS letter was issued to the Appellant from the London School of Management and Technology ("LIMT") on 6 February 2014. We observe that this CAS is in letter form, rather than a print-out from the Respondent's own records (as was the case with the CAS in respect of VBC). This is capable of being consistent, we find with the LIMT CAS not being formally completed on the sponsorship management system ("SMS"). In our assessment this document, when looked at in the round, lacks credibility, given the need to create the CAS on the SMS. There is no reliable evidence before us as to whether there was in fact a variation application made by the Appellant to study at LIMT. The LIMT CAS letter purports to be in respect of a course of study set to start on 10 February 2014 and end on 30 December 2015. We observe that that CAS letter put the Appellant's address as being "58 [RW]". However, there is no reliable independent evidence before us to show if or when the Appellant sent that CAS in respect of LIMT to the Respondent, or if she told the Respondent in an application form or covering letter than she was living at a different address. It is the Respondent's case that official Home Office Records show that on 28 February 2014 a student visa was issued to the Appellant, valid until 30 April 2016 (four months after the end of the LIMT course), but we are not satisfied that we can infer that this was in respect of the LIMT course of study, given the lack of credible supporting evidence that a variation application was in fact made to study there. We find taking everything in the round that the 28 February 2014 grant of leave would have been issued to the address the Respondent considered was the Appellant's last known place of abode, which would have been 28RW, because we are not satisfied that the 58 RW address was in fact provided to the Respondent.

15.    The Respondent says that according to her records, on 5 August 2014 the Appellant's leave to remain was curtailed with no right of appeal until 30 June 2015. It is difficult to accept that the Appellant would have been given a ten-month period from the date of the curtailment letter to the date of when the leave expired. The Respondent does not state in the evidence before us why that leave was curtailed. If it were because the Appellant was not studying at all at a college, her leave would have been curtailed so as to expire straight away, not ten months later, and similarly if she had been found to have been working in breach of conditions. The Respondent does not argue that either of those reasons were why leave was curtailed. This Appellant, on her own case, had had a college she had been studying at lose its licence (VBC). If such a situation arose with regard to a college the Appellant had been granted leave to study at, the normative policy would have been (if she was not involved in the reason why the Tier 4 sponsor had their licence revoked) for her to be given 60 days: (see for example R (on the application of Pathan) v SSHD [2020] UKSC 41 at [4]). So, if the curtailment letter was sent on 5 August 2014, one would have expected her leave to have been curtailed so as to expire on or around 4 October 2014 (a date which does not dovetail with the Capita Contact ("Capita") emails set out below). However if leave was being curtailed so as to expire on 30 June 2015, then the curtailment letter would (if the policy had been followed) be dated around 60 days before that - i.e. on or around 30 April / 1 May - which is considerably more consistent with the initial Capita email of 20 April 2015. It is plausible that the Respondent might have given slightly more than two months to comply with her common law fairness duties. The exact course of events relating to the curtailment of leave to remain is simply unclear.

16.    It was argued on behalf of the Appellant in the covering letter to the application that " after applying the student visa extension on the basis of the CAS letter issued by then London Institute of Management and Technology, she did not receive any documents back from the Home Office". It was also said in the covering letter that the Appellant " emailed a number of times to CapitaContact@homeoffice.gsi.gov.uk for the documents", and that a copy of the emails was attached. In fact, the emails to and from Capita that were attached as screenshots (pages 298-301 CB) purport to date from April 2015. We find, given the timing of the emails, it is reasonable to infer that the Appellant's leave to remain was more likely curtailed towards the end of April 2015, so as to end on 30 June 2015, rather than her being given over ten months to find a new college. In the first email dated 20 April 2015, the Appellant gave the 58 [RW] address, but that document does not state who the email was sent to, although the other emails suggest that it may have been sent to Capita. We observe that the document says that (i) the Appellant received a message (which is not before us) from Capita that morning that her leave to remain in the United Kingdom had expired, and (ii) the Appellant was arguing that she had made a Tier 4 application in respect of the LIMT which she considered was still pending. The following pages disclose an email at 12:46PM on 22 April 2015 to the Appellant from Capita, in which they said that they were unable to locate her case with the information that she had provided and asked her to confirm her name, date of birth and case ID. There is an email from the Appellant to Capita at 6:46PM on 22 April 2015 saying that she was sending her details, but that email does not disclose any details being given. There is then, on page 300 CB, an email from Capita dated 24 April 2015 stating that after investigating the Appellant's case they required more information, and they had been unable to verify any outstanding application with the Home Office. There is then on page 301 CB an email from the Appellant to a different Gmail address enclosing an email from Capita dated 8:46 AM on 29 April 2015, referring to correspondence from 28 April 2015 (which also is not before us), stating that the Appellant's case had already been referred back to the Respondent and she would need to liaise with them directly and she was given a telephone number and postal address of the Respondent's Lunar House Offices.

17.    It is remarkable that, if the Appellant still believed in April 2015 that her application to study at the LIMT was still pending, some 14 months after that course was due to start, there are no emails or other correspondence before us between February 2014 and April 2015 in which she is chasing up her application.

18.    Either way, we find, she knew in late April 2015 that her position was highly precarious and she believed that either her leave had run out or was running out. Despite this, there is no evidence of her taking steps to make another application to the Respondent to resolve her status, after she received the email from Capita contact on 29 April 2015 urging her to get in touch with the Respondent. Upper Tribunal Judge McWilliam found in her permission decision of 1 December 2016 that the Appellant had overstayed. The Appellant did, we find, knowingly overstay her visa after 30 June 2015. Her assertion in the application that her breach of immigration law only began on 22 September 2016 when she was released from detention is not borne out by the weight of the evidence, especially when one notes that she was well aware in April 2014 from her own emails that her leave to remain either had ceased or was about to cease.

19.    The Respondent says her records show that on 5 February 2016 she served the Appellant with RED.0001 and RED.0003 notices. These are not before us. We accept that form RED.0001 is a notice of liability to administrative removal under section 10 of the Immigration and Asylum Act 1999. We accept that these would have been sent to the Appellant's last known place of abode, in circumstances where the Respondent was of the view where there was no outstanding application to regularise the Appellant's status, in order to give her another opportunity to explain why she ought to be allowed to remain in the United Kingdom. We accept that on 2 March 2016 these notices were "returned to sender" - i.e. sent back to the Respondent - asserting that the Appellant was no longer at the address they had been sent to. The Respondent's records show, we accept, that on 13 April 2016 the Appellant was deemed to be an absconder. This is consistent with the fact that correspondence had been returned from her last known address. We accept that she was next encountered by the Respondent, according to the Respondent's records, working illegally on 17 May 2016. Again, we pause to observe that there is no evidence before us to show that the Appellant was chasing up the Respondent between May 2014 and her arrest on 17 May 2016 (a period of two years) regarding her status, either in relation to the alleged LIMT application, or on any other basis. The LIMT course she had wanted to study at was supposed to have ended on 30 December 2015.

20.    We accept that on 17 May 2016 she would have been detained with a view to removal. We accept that the Respondent's records show she was served with form RED.0004, which we accept is served where a person has previously been served a RED.0001 or single decision notice and the removal window is being extended or a fresh removal window is being implemented.

21.    We accept that the Respondent's records show that on 15 June 2016 a judicial review was lodged, on 29 June 2016 the Appellant made an asylum claim. We do not have documents relating to that judicial review, which we find, weighing everything, was likely to have been lodged in order to thwart steps to remove the Applicant and to get her out of detention. We accept that the Respondent's records show that on 20 July 2016 the Respondent filed an acknowledgement of service in the Upper Tribunal. Although we have not been provided with these decisions or documents, we accept, weighing everything, that the Respondent's records in this regard are reliable. UTJ McWilliam on 1 December 2016, found that in 2016 the Appellant was encountered and served with a notice of liability for removal and absconded; and that she was encountered and served again with a notice of liability for removal, only claiming asylum on 29 June 2016. Weighing everything, and taking into account the lack of any witness statement from the Appellant disputing this, or setting out where she was living and the extent to which she kept in contact with the Respondent, we accept that she was properly deemed to be an absconder.

22.    We also accept that, on 2 August 2016 the Appellant's asylum claim was refused and certified as "clearly unfounded". Her claim, we find, was put forward on the basis that her father owed a debt to a rich moneylender and she was at risk of being killed as a consequence. The Appellant then lodged another public law challenge, on 5 August 2016, which was not just deemed to be unarguable but also certified as "totally without merit" by UTJ McWilliam on 1 December 2016: see rule 44(4C) The Tribunal Procedure (Upper Tribunal) Rules 2008. The claim would have been certified as such if the UTJ was "confident after careful consideration that the case truly was bound to fail". We find however that the claim was "successful" in enabling the Applicant to secure her release from detention on 22 September 2016 (see page 279 of the Respondent's bundle). The UTJ ordered the Appellant to pay the Respondent's costs of £800 within 21 days, subject to any representations. There is on pages 33- 34 CB a screenshot of a payment reference receipt in the sum of £800 from the sponsor to the Respondent which is consistent with this being paid back, albeit it does not give a date for payment.

23.    In light of the above, we conclude that the limited information available relating to the asylum claim shows that an extremely weak application was made on a basis that was highly unlikely to engage the Refugee Convention. The claim was made at a late stage after the appellant was notified that arrangements would be made for her removal. We find that the evidence indicates that the appellant made an unfounded asylum claim solely to frustrate the respondent's attempt to remove her and to secure her release from detention.

24.    We accept that the Appellant attended Smethwick Gurwara Surgery on 6 October 2018 and at that point said that she wished to depart voluntarily. She did not however depart for over year after this. There is little if any evidence from either side regarding what transpired after the judicial review proceedings came to an end. She purchased her own ticket to depart, we accept, on 3 December 2019, and left the United Kingdom on 22 December 2019, three years after her judicial review failed, where she must have known full well that she had no leave to remain.

25.    There are in our judgment serious evidential shortcomings which undermine the reliability of the Appellant. It has transpired that the Appellant (and sponsor) have not been truthful with regard to when their relationship started. They both made clear statements when the application for entry clearance was made, and maintained on appeal before the First-tier Tribunal, that they met after the Appellant left the UK. It was said that the marriage was arranged through a common friend who introduced both of them, and that, "Our husband and her client started to talk to each other on phones and video calls in around September 2021 during the Covid period. Our client met her now husband, Sandip Singh Jawanda, a British citizen (Born on 18 January 1988 in Plaistow, UK), in person on 20 November 2021 at New Delhi airport, India, where she had reached to receive him." The Appellant asserted in her application form that she met the sponsor in 2021 (page 275 CB). The sponsor himself gave evidence before the Judge (see paragraph 4 of her determination, page 2 CB), that he did not know the Appellant during her previous stay in the United Kingdom. However, the sponsor's oral evidence at the resumed hearing before us was (eventually) that he knew the Appellant from around 2017/2018 and had had a relationship with her in the United Kingdom, going on dates and even staying in a hotel together. He estimated that they would meet up twice a week and he would meet her after work if he could get away early. The sponsor was asked whether he knew about her immigration problems when she was in the United Kingdom. He said that he did not, but taking everything in the round we are not able to accept this, given the parties' failure to tell the truth about their relationship whilst the Appellant was in the UK. The sponsor's payment of the £800 litigation debt is also capable of being consistent with his being aware of her lack of status, although as we have noted the document on pages 33-34 CB is not dated. We find it is more likely that the Appellant's lack of status would have been disclosed to him by the Appellant at the very least in the run up to her having to explain why she had to leave the United Kingdom which she eventually did in December 2019.

26.    It was asserted in the covering letter to the entry clearance application that whilst in detention until September 2016 the Appellant received a letter dated 3 June 2016, " confirming that Home Office was unable to locate her documents". On page 297 of the consolidated bundle there is a letter from the Respondent dated 3 June 2016. It is the only document before us bearing that date, but it is not consistent with the suggestion that the Respondent "was unable to locate her documents" as argued in the covering letter, nor is it consistent with the submission made to us that the Respondent had "lost all the papers". Rather it is the Respondent acknowledging the loss of a single item, the Appellant's passport (not an unimportant item by any means, but not remotely an admission that all of her documents or papers had been lost). It is certainly not, in our judgment, evidence that an application was made by the Appellant that was lost by the Respondent.

27.    It lacks credibility that the only evidence before us of the Appellant querying what is said to be the Respondent's failure to decide the LIMT student variation application allegedly lodged in February 2014 are emails over 14 months later, bunched at the end of April 2015, and nothing before or since.

28.    It is common ground that 9.8.2(a) and (b) are met. The two issues under the Rules are whether 9.8.2(c) is met and, if it is, how the discretion under the Rule should be exercised.

29.    We observe that the sponsor's published policy guidance entitled "Suitability: previous breach of UK immigration laws, Version 6.0", [3] states, at pages 11-12:

"Previously contrived to frustrate the intention of the rules and aggravating circumstances

 

When the circumstances of the previous breach of immigration laws are also aggravated by other actions with the intention to deliberately frustrate the rules, you must consider refusing entry clearance or permission.

 

This means when an applicant has done one or more of the following:

 

•         been an illegal entrant

•         overstayed

•         breached a condition attached to their leave

•         used deception in a previous application

•         obtaining:

-           asylum benefits

-           state benefits

-           housing benefits

-           tax credits

-           employment

-           goods or services

-           National Health Service (NHS) care using an assumed identity or multiple identities or to which not entitled

 

and there are aggravating circumstances, such as:

 

•         absconding

•         not meeting temporary admission/reporting restrictions or bail conditions

•         failing to meet the terms of removal directions after port refusal of leave to enter or illegal entry

•         previous working in breach on visitor conditions within short time of arrival in UK (indicating a deliberate intention to work)

•         receiving benefits, goods or services when not entitled

•         using an assumed identity or multiple identities

•         getting NHS care to which they are not entitled

•         attempting to prevent removal from the UK, arrest or detention by Home Office or police

•         escaping from Home Office detention

•         switching nationality

•         troublesome or frivolous applications

•         not meeting the terms of the re-documentation process

•         taking part, attempting to take part, or facilitating, in a sham marriage or marriage of convenience

•         harbouring an immigration offender

•         people smuggling or helping in people smuggling

 

Other factors

 

You must consider all the circumstances of the case. Factors which may be relevant to your decision include:

•       why and how did the breach happen

•       if a condition was breached, the period between the condition being imposed and the breach

•       the period since the breach

•       any other circumstances, such as the impact of a refusal on the individual or their family living in the UK".

Looking at everything in the round, we find that, in addition to the breaches of immigration law in overstaying her visa and working when not allowed to do so, the Respondent has proved to the civil standard that the Appellant has previously (i.e. prior to the making of this entry clearance application) contrived in a significant way to frustrate the intention of the rules. We find that the curtailment notice would have been sent to her last known place of abode. We are not satisfied that there was a variation application in respect of LIMT which gave the address of 58 RW to the Respondent. The only address we are satisfied was given to the Respondent was the 28 RW address in respect of the VBC application, and we are not satisfied that this was formally changed to 58RW with any later application being made regarding LIMT. We find that the Appellant was fully aware of the precariousness of her position in late April 2015, did nothing after April 2015 to rectify the position, and was then encountered working illegally on 17 May 2016. We accept that she was an absconder, and that she has made frivolous applications, firstly by making a hopeless asylum claim, and then compounding that by bringing a totally unmeritorious judicial review. These applications were made solely to thwart her removal from the United Kingdom and to secure her release from detention. We also find that the Respondent has proven that it is more likely than not that this also amounts to "other aggravating circumstances (in addition to the immigration breach)".

30.    We now turn to the discretion under the Rule. We remind ourselves that in PS (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 (IAC), it was held in the headnote that:

"In exercising discretion under paragraph 320(11) of HC 395, as amended, to refuse an application for entry clearance in a case where the automatic prohibition on the grant of entry clearance in paragraph 320(7B) is disapplied by paragraph 320(7C), the decision maker must exercise great care in assessing the aggravating circumstances said to justify refusal and must have regard to the public interest in encouraging those unlawfully in the United Kingdom to leave and seek to regularise their status by an application for entry clearance".

We recognise that the Rule has changed from paragraph 320(11), but we find that the general principles in PS (India) are still broadly applicable to the circumstances of this case. When considering how the discretion under the Rule is to be exercised, we find, the conduct of the parties in the present application and appeal is capable of being a relevant factor - albeit it would not be relevant to the sub-paragraphs (a) and (c) in paragraph 9.8.2 which only permit consideration of behaviour prior to the instant application.

31.    There are factors in favour for the Appellant in terms of the discretion under paragraph 9.8.2. There is, we recognise, an important public interest in encouraging those who overstay to do the right thing and leave the United Kingdom and pursue entry clearance from abroad. The Appellant did eventually do that and that feature of the case is to her credit. She meets the substantive requirements for entry clearance as a partner in terms of her relationship with the sponsor being accepted to be genuine and subsisting, the financial requirement and the English language requirement. The sponsor works in the United Kingdom. We accept that his father was at one time seriously ill with cancer and that the sponsor assisted him in accessing vital medical treatment in 2021-2022 and looked after him. The sponsor's father is nearly 70 years old now. We also accept there is credible medical evidence that he suffers from diabetes. While there is no up to date independent medical evidence regarding the sponsor's father's health, the sponsor told us that his father was blind in one eye and we accept this. We accept that he is likely to prefer to continue live with his son, rather than have someone from social services come to the house to help, but we find that is an option that could be explored. Previously, we accept, the sponsor tried to raise it with his father in a light-hearted manner, but his father roundly rejected this. The sponsor's sister lives in the UK. She has her own family, but the sponsor accepted that she could "pop in" and help, although his father was reluctant to impose upon her. We do not however accept that there is, as was suggested by the sponsor, a cultural taboo against his sister going round to the house to help her father as needed, just because she is married and has her own family. It is not suggested that he is still receiving medical treatment for cancer. We find he remains fragile, and the sponsor helps him with cooking, shopping, and cleaning, but he is able to dress himself, shower and go to the toilet independently. If the sponsor leaves the United Kingdom to live with the Appellant in India, the sponsor's father will be very upset and will miss him deeply. The passage of time also counts in the Appellant's favour, up to a point. The previous breaches occurred many years ago, over five years since she left in December 2019.

32.    Balanced against that, there are factors which point the other way, including her adverse immigration history. It is now clear that the Appellant has not to come this appeal with "clean hands". Weighing everything we find that the Appellant and the sponsor decided to give the false impression in the entry clearance application, and in the appeal before the First-tier Tribunal, that they had never met each other until after she left the United Kingdom; (a position maintained until the sponsor was asked questions in cross-examination at the resumed hearing in the Upper Tribunal, in February 2025). This was done, we find, in order to cynically present the relationship as untarnished by the Appellant's immigration history. We do not accept as credible the sponsor's assertion that they were reluctant to disclose the true start date of their relationship because the Appellant was related to a man to whom the sponsor owed his career, and that disclosing this would risk him discovering sexual impropriety outside of wedlock. The correct date of the commencement of the relationship easily have been disclosed in a discreet manner in the application for entry clearance, or to the Tribunal on appeal well before the February 2025 hearing, without citing detail as to how physical the relationship was.

33.    We find that the sponsor could relocate to India without facing "insurmountable obstacles" to his family life with the Appellant continuing, or it being unreasonable. It cannot be said that there would be "very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner". Evidence was previously given to the Judge that (i) the sponsor speaks Punjabi, (ii) had visited India around 20-30 times (iii) that there was a family property in the name of his father, where family members would normally stay when they visited (see paragraph 13(g) of her decision) and (iv) that he knew of no reason why he could not find work in India (paragraph 13(h)). The sponsor would not, we find, face linguistic, cultural or religious obstacles in relocating and would have support from the Appellant in integrating there. The sponsor's present family life with his father in the UK would be impacted but his father would not be without support whatsoever. The sponsor's sister could help, we find, and it is relevant that there would be support from social services if need be (see for example BL (Jamaica) v SSHD [2016] EWCA Civ 357 at [53]). Also, although the Respondent accepted that the Appellant and sponsor are in a genuine and subsisting relationship, and we note they have been communicating through modern methods of communication, they have not had a great deal of face-to-face contact. We accept that financial considerations and the pandemic are likely to have played a part in this, but the fact remains that the sponsor last saw the Appellant face to face in November 2021.

34.    Carefully weighing and balancing all relevant matters we find that the discretion falls to be exercised against the Appellant under paragraph 9.8.2. It is now clear that the parties tried to mislead the Respondent in the present application into thinking that the sponsor and Appellant did not know each other before she left the United Kingdom and only met in 2021. If the adverse immigration history had come to an end in 2019 when the Appellant left that would have been one thing, and her ability to point to her doing the right thing in leaving the United Kingdom (and the attendant public interest in encouraging that) would be something powerful in her favour, together with her father-in-law's health problems. But in circumstances where in this application she continued to persist in trying to manipulate the Respondent into believing a scenario of the parties only meeting at a later point in time, points to her not having learned any lessons or having changed her ways, because she is continuing to try to frustrate the intentions of the Rules. The sponsor's father has health and mobility issues and would strongly prefer to be cared for by his son, but his daughter is available in the United Kingdom, and we find she could provide some support. There is no reason to think that the sponsor and Appellant could not live together in the sponsor's family home in India and he could seek employment in India and continue their family life there. Weighing everything we find that the discretion should not be exercised in the Appellant's favour and it is right to refuse her application under Rule 9.8.2 of Part 9 of the Immigration Rules.

S-EC.1.5

35.    Although we have found that it is right to refuse under Paragraph 9.8.2 of Part 9, and that there are truly aggravating circumstances in addition to the breach, we are not satisfied, having regard to the relevant published policy guidance [4] that the application should also be refused under S-EC.1.5. The guidance makes the point that reprehensible behaviour can mean that a person's presence in the UK would not be conducive to the public good and many factors weigh into this, which include the nature and seriousness of the behaviour, and its frequency and other relevant circumstances pertaining to the person. However, we note that the guidance points the decision maker to consider what threat the person poses to the UK public, and the examples given are threats to national security, extremism and unacceptable behaviour, war crimes, crimes against humanity and genocide, or associating with people involved in terrorism, extremism or war crimes, admission having an adverse impact upon foreign policy, being subject to an international travel ban, inciting public disorder, involvement with criminals and gangs, or proceeds of crime issues. These are very strong examples of particularly egregious behaviour, we consider. Immigration offending is we note cited as a potential factor, but the examples given are where there has been human trafficking, facilitation, and providing false documents to assist people in the application process, albeit it is not an exhaustive list. The Appellant's conduct has been very poor for the reasons set out above, but in our judgment, it does not reach what is envisaged to be an even more serious threshold to come within S-EC.1.5. Mr Tufan, we note, did not push the point in his submissions.

Article 8 ECHR / GEN.3.2

36.    We therefore move on to consider whether refusal of the application would result in unjustifiably harsh consequences which would breach Article 8 ECHR. If it would, then the requirements of GEN.3.2 would be met.

37.    We remind ourselves that in Jeunesse v. The Netherlands (App no. 12738/10) it was stated:

"106. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective 'respect' for family life. However, the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.

107. Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect a married couple's choice of country for their matrimonial residence or to authorise family reunification on its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State's obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Butt v. Norway, cited above, § 78).

108. Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. It is the Court's well-established case-law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 94, § 68; Mitchell v. the United Kingdom (dec.), no. 40447/98, 24 November 1998; Ajayi and Others v. the United Kingdom (dec.), no. 27663/95, 22 June 1999; M. v. the United Kingdom (dec.), no. 25087/06, 24 June 2008; Rodrigues da Silva and Hoogkamer v. the Netherlands, cited above, § 39; Arvelo Aponte v. the Netherlands, cited above, §§ 57-58; and Butt v. Norway, cited above, § 78)."

38.    We must (and do) have regard to the considerations set out in section 117B of the Nationality, Immigration and Asylum Act 2002. We accept that the Appellant does speak and understand English and is financially independent - but these are neutral factors for the purpose of s.117B. The "little weight" provision in s.117B(4) applies because the sponsor's relationship with the Appellant was established when she was here unlawfully. It is difficult to pinpoint the sponsor's awareness of the precariousness of the Appellant's situation. We are prepared to accept that it is probable he did not know from the inception of the relationship that she was here unlawfully, as that might have been withheld from him, but we find he must have become aware of it later leading up to when the sponsor was deciding to leave the UK, particularly given that he paid off her judicial review debt. Section 117B(6) does not apply. Matters under s.117B are a starting point, but they are not the end point. "Little weight" does not mean "no weight". The s.117B generalised normative guidance may be overridden in an exceptional case by particularly strong features of the private or family life in question.

39.    Given the lack of dispute from the Respondent, notwithstanding the relatively little evidence of ongoing contact since the marriage, we are prepared to accept that the Appellant has "family life" within the meaning of Article 8 ECHR with the sponsor. We find that the decision of the Respondent interferes with that family life right; that the decision is in accordance with the law; and that the decision is in pursuit of a legitimate aim. The critical issue is whether the decision to refuse the human rights claim is proportionate or disproportionate. In evaluating this, we adopt a balance sheet approach. Some of the factors overlap with each other and also correspondingly touch on issues on the other side; we have been careful not to double count.

40.    The significant points weighing in favour of the Respondent in the balancing exercise are:

(a)     The Appellant does not meet the rules for entry clearance as a partner due to falling foul of the general grounds for refusal at paragraph 9.8.2. Article 8 is not a general dispensing exercise. The Immigration Rules reflect the responsible Minister's assessment, at a general level, of the relative weight of the competing factors when striking a fair balance under Article 8. We are able to review that general assessment in the event that the decision-making process is challenged as being incompatible with Convention rights or based on an erroneous understanding of the law, but we must (and do) bear in mind the Secretary of State's constitutional responsibility for policy in this area, and the endorsement of the Rules by Parliament. We therefore must (and do) take the Secretary of State's policy under the Rules, and whether an individual does or does not meet them, into account and to attach considerable weight to it at a general level, as well as considering all the factors which are relevant to the particular case.

(b)    The Appellant has, family, social and cultural ties to India. The Appellant would not encounter linguistic difficulties there, and she can develop a private life and is likely to be able to rely on emotional and practical support from her family members and friends there.

(c)     The Appellant and sponsor misled the Respondent and the FTT originally regarding when they established their relationship. That does attract some weight in the Respondent's favour.

41.    We find that the main points in the Appellant's favour are:

(a)     There is a public interest in encouraging those unlawfully in the United Kingdom to leave and seek to regularise their status by an application for entry clearance, which is the proper course. The Appellant did eventually leave the United Kingdom at her own expense and that is a factor to which we give some weight in her favour.

(b)    The nature and strength of the Appellant's relationship with the sponsor. The Respondent has not disputed that the couple are likely to be in a relationship. That having been said, the sponsor has not seen his wife in person since November 2021. We recognise that telephone or other modern methods of communication are no substitute for face-to-face contact and the permanent enjoyment of family life. We have given this significant weight.

(c)     The seriousness of the obstacles the parties would face in continuing their family life overseas, to which we give some weight. The sponsor would have to give up his employment in the United Kingdom and establish himself in India and seek employment there. It would we accept be a challenging prospect for him but we do not accept that the parties would face "insurmountable obstacles" to continuing their family life together. The sponsor would have the help and support of the Appellant, and can live in the family home his father owns in India, we find. He speaks the language and would not encounter cultural or religious difficulties there and has as good a chance as anyone in obtaining employment, given that he has experience of employment in the UK and speaks English as well as Punjabi.

(d)    The impact on the sponsor's wider family life with his father. The sponsor would be having to leave his father who he has lived with and with whom, we accept, he has family life. There could still be visits when finances permit and communication using the telephone and other means of communication, but that is of course no substitute for regular face to face contact. We do not have a witness statement from the sponsor's father but we accept that he would be upset by his son leaving. We do give this significant weight, but we do find that help would be available from the sponsor's sister and social services if need be, and he is no longer having ongoing treatment for cancer.

42.    Weighing the arguments and striking a balance between the competing public and individual interests on both sides, we find the scales fall firmly on the side of the Respondent. We do not accept that there would be insurmountable obstacles to family life continuing overseas. The assistance given by the sponsor to his father is admirable and if he relocated his father would miss him deeply, we recognise, but could call on support from his daughter and social services if need be. There is a public interest in encouraging those unlawfully in the United Kingdom to leave and seek to regularise their status by doing so; this Appellant did that and to an extent it counts in her favour, but considerably less so in circumstances where the she and the sponsor originally misled the Respondent and the Tribunal, into thinking they met in 2021 when in fact they met in 2017. The Appellant has a very poor immigration history, overstaying her leave, absconding, working illegally, and making frivolous and hopeless claims to get herself out of detention and frustrate removal. The Appellant and sponsor would be perfectly able to continue their family life together in India if they wished, living in the sponsor's father's home there. Balancing all relevant matters, we find that the circumstances of the Appellant's case are not sufficiently compelling to outweigh the Respondent's strong public interest in controlling immigration. We find that therefore the refusal of entry clearance is not and was not unjustifiably harsh or disproportionate. Her appeal must therefore be dismissed under Article 8 ECHR.

Decision

The appeal under the Article 8 ECHR ground is dismissed.

 

R Singer

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

18.3.25