INNER HOUSE, COURT OF SESSION
	[2014] CSIH 1
Lady Clark of Calton	XA148/12 OPINION OF LADY CLARK OF CALTON in the application for leave to appeal by AM Applicant; Under section 13 of the Tribunals, Courts and Enforcement Act 2007 _______________

Act: Lindsay QC, Winter; Drummond Miller LLP

Alt: Pirie; Office of the Advocate General

10 January 2014

Facts

[1] At the time of the hearing before the immigration judge of the First Tier Tribunal, the appellant had lived with his partner and her children from 2010. His partner has three children aged 15, 12 and 8 years. Said children maintain a relationship with their natural fathers in the UK. His partner knew of the precarious immigration status of the applicant in 2010.

[2] The applicant entered the UK clandestinely in October 2008. He was issued with a notice to an illegal entrant. He was referred to Kent Social Services for accommodation as he claimed he was aged 16. He absconded. In October 2011 he was detained at a registrar's office where he planned to marry his partner, a UK national. By that time he was using a different name and date of birth. The applicant helps to care for his partner's three children.

Grounds of Appeal

[3] In this application for leave to appeal, there are two grounds set out in the written submissions for the applicant which were developed in oral submission by counsel.

[4] The first ground related to an alleged material error of law based on criticism of the First Tier Tribunal's assessment of the relationship between the applicant and his partner. I consider that there is no merit in this appeal ground. This assessment was a minor part of the decision making about the relationship between the applicant and his partner and whether or not the applicant had formed a private and family life. This assessment considered a number of factors from which the First Tier Tribunal concluded, in favour of the applicant, that he does have family and private life in the UK which involves his partner and her three children. In my opinion, the assessment of the First Tier Tribunal about the religious involvement of the applicant's partner had minimal significance in the context of the other factors about family life which are noted and no material effect on the balancing exercise when proportionality was assessed.

[5] The second ground of appeal related to whether in all the circumstances of the case, if article 8 is engaged, it would be disproportionate to expect the applicant to return to Algeria to apply for entry clearance as this would be a disproportionate interference with family life.

[6] On behalf of the appellant, reference was made to the legal principles set out in Secretary of State for the Home Department v Hayat [2013] Imm AR 15 at paragraph 30. Counsel further submitted that if the principles in Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420 were applied, the Tribunal would not have concluded that it was proportionate in this case to expect the applicant to return to make application for leave to enter. Counsel submitted that the Upper Tribunal had proceeded on the wrong basis by assuming that the applicant would be likely to succeed in his application and that the matter would be resolved in his favour within a relatively short time of weeks or a few months. Counsel submitted that this false reasoning was an error as the Upper Tribunal had failed to take into account the many difficulties which would cause delay if the applicant was required to return to Algeria and that as a result of new rules relating to financial criteria, the applicant might never succeed in his application. The interference with his private and family life would therefore be very significant and disproportionate affecting his partner and her children with whom the applicant now lived.

[7] I consider that it is plain that the Upper Tribunal properly had regard to the principles in Chikwamba. That case recognised that immigration control was a legitimate aim in relation to article 8 family life claims and the decision maker is entitled to weigh that in the balance. This is a case in which there is on the facts before the Tribunal a relatively short relationship with the applicant's partner who has three older children who have contact with their natural fathers. It was accepted that the applicant now has some involvement in their care. The view was taken on the facts applicable at the time of the decision making that the delay would be relatively short. I am informed that the Upper Tribunal were addressed about the many difficulties including financial criteria which might not be met and that this would delay and impede the applicant's return. A decision about the period of delay was taken and I am not in a position to say that amounted to an error in law. Chikwamba supports the principle that article 8 appeal claims should not be dismissed routinely on the basis that it would be proportionate and more appropriate for the applicant to apply for leave from abroad. In my opinion that is not what was done in this case. Consideration was given to all the circumstances and a decision was reached on the facts, found at the time of the decision, that in this case it was proportionate to expect the applicant to return to Algeria to make his claim.

[8] It became apparent during submissions that there was a certain unreality about considering the decision making in this case as there appeared to be a change in the circumstances of the applicant in relation to his family life. I was informed that the facts have materially changed since the original decision was made. The applicant has now married his partner and she is pregnant with twins. These are not facts which I am entitled to take into account in considering this application for leave to appeal. Such facts however might well have a bearing on considerations about proportionality in a case such as this, particularly if it can be demonstrated that there are significant delays, for reasons integral to the immigration rules or other reasons in the event that the applicant was required to return to Algeria to apply for entry. It might be thought that this is not a case in which the applicant's wife in the new circumstances could be expected to go to Algeria with the applicant. I was informed by counsel for the respondent that the applicant had been invited to consider an application under Immigration Rule 353. That would create the opportunity for consideration by the respondent of the current factual information and a consideration of article 8 in respect of the applicant, his wife and children.

Conclusion

[9] For the reasons given I am not persuaded that the applicant has shown that he has a real prospect of success in his appeal. No other basis was submitted. Accordingly I refuse the application for leave to appeal.