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

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/13935/2018

 

THE IMMIGRATION ACTS

 

Heard at Field House	Decision & Reasons Promulgated
On the 1 st November 2021	On the 11 th November 2021

 

Before

 

UPPER TRIBUNAL JUDGE KEBEDE

 

 

Between

 

 

SADRUL ISLAM

Appellant

and

 

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: In Person

For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

 

1.       The appellant is a citizen of Bangladesh, born on 1 January 1986. He entered the United Kingdom on 10 February 2011 with leave to enter as a Tier 4 student until 30 June 2012. He applied for further Tier 4 leave on 19 April 2012 and was granted leave to 30 October 2015, but his leave was subsequently curtailed on 13 February 2015 to expire on 28 September 2015. He then made two unsuccessful applications for an EEA residence card, on 18 February 2016 and 5 August 2016, followed by an unsuccessful application for leave to remain on the basis of his family and private life which was refused on 31 July 2017 without a right of appeal.

 

2.       The appellant then made a human rights claim, on 30 October 2017, on the basis of his family life with his wife Emma King, whom he had married on 19 October 2017. His application was refused on 19 June 2018 on suitability and eligibility grounds. The respondent considered that paragraph S-LTR.1.6 of Appendix FM of the immigration rules applied in light of the appellant having submitted, in his application of 19 April 2012, a fraudulently obtained a TOEIC certificate from the Educational Testing Service (ETS). The respondent considered further that the appellant's relationship with his wife was not a genuine and subsisting one and that he therefore failed to meet the eligibility immigration status requirements of the rules. That decision was based upon an interview with the Home Office following which it was determined that the marriage was a sham. The respondent considered that there were, in any event, no insurmountable obstacles to family life continuing in Bangladesh and that, whilst the appellant's claimed partner had epilepsy and intellectual disability, any necessary medical care could be accessed in Bangladesh. The respondent considered that there were no very significant obstacles to integration into Bangladesh for the purposes of paragraph 276ADE(1) of the immigration rules and no exceptional or compelling circumstances justifying a grant of leave outside the rules.

 

3.       The appellant's appeal against that decision was initially heard by Judge Lodge in the First-tier Tribunal on 22 May 2019 and was dismissed in a decision promulgated on 29 May 2019. In that decision the First-tier Tribunal Judge concluded that the appellant had behaved fraudulently and had therefore failed to meet the suitability requirements. Further, whilst it was found that the evidence was "overwhelming" that the appellant and his wife were in a genuine and subsisting relationship and that there were insurmountable obstacles to family life continuing in Bangladesh, the judge concluded that it was nevertheless proportionate to require the appellant to return to Bangladesh and apply for entry clearance as a partner.

 

4.       That decision was set aside by the Upper Tribunal on 25 October 2019 and remitted to the First-tier Tribunal to be heard again, with a clear direction that no findings were preserved and that the hearing was to be de novo.

 

5.       The appeal then came before First-tier Tribunal Judge French on 10 December 2019. Judge French also found that the appellant had participated in an attempt to commit fraud and that the suitability provisions in the immigration rules applied. Unlike the previous Tribunal, however, he did not accept that the appellant's relationship with Ms King was a genuine and subsisting one and he agreed with the respondent that there had been a sham marriage designed to bolster the appellant's prospects of being successful in his application for leave to remain. The judge found that the appellant did not, therefore, meet the eligibility requirements of the immigration rules and he concluded that there were no very significant obstacles to integration in Bangladesh and no compelling circumstances outside the rules. He accordingly dismissed the appeal.

 

6.       The appellant sought permission to appeal Judge French's decision on two grounds: firstly, that he had failed to adopt the correct approach in relation to the TOEIC allegation, that he had taken into account irrelevant matters and that he had failed to make any finding on whether or not the appellant had provided an "innocent explanation"; and secondly that, despite the previous Tribunal's decision having been set aside, the judge ought nevertheless to have taken some account of the positive findings regarding the genuineness of the appellant's relationship and that he had failed to take into account relevant supporting evidence in assessing the relationship.

 

7.       Permission was refused in the First-tier Tribunal, but was granted by the Upper Tribunal on a renewed application. The respondent produced two Rule 24 responses, dated 15 October 2020 and 31 March 2021, taking a slightly different position in each, but in any event, following an adjournment request by counsel for the appellant, Mr West, in relation to the resumed hearing listed for 19 May 2021, Mr Whitwell on behalf of the respondent did not oppose the adjournment request and advised the Tribunal that the respondent was no longer opposing the appellant's appeal. He invited the Upper Tribunal to set aside Judge French's decision. The hearing was accordingly vacated and the matter was determined on the papers by the Upper Tribunal sitting as a panel.

 

8.       In a decision promulgated on 27 May 2021, Upper Tribunal Judge Keith and I set aside Judge French's decision on the following basis:

 

"11. We agree with Mr Whitwell that Judge French's decision has to be set aside by reason of error of law and, in light of his concession, we give very brief reasons for so concluding. We agree with the assertion in Mr West's grounds and skeleton argument that Judge French's assessment of the TOEIC deception allegation took account of irrelevant matters such as the appellant's lack of fluency in English and not being "a man of high academic achievement", that he failed to consider relevant matters such as the appellant's previous English language qualifications and other academic awards and that he failed to make findings on whether an "innocent explanation" had been provided by the appellant in response to the deception allegation. With regard to Judge French's findings on the appellant's relationship, we agree with Mr West that whilst the judge was under no obligation to adopt the positive findings of the previous Tribunal, he ought at the very least to have taken those findings into account in his own assessment. We also agree that there was evidence before the judge which he failed to consider, as referred to at [21(ii)] of Mr West's skeleton argument.

 

12. Accordingly, we set aside the decision of Judge French in its entirety, with no findings preserved.

 

13. As for the disposal of the appeal, Mr West submits that the appropriate course would be to remit the matter to the First-tier Tribunal, pursuant to paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First tier Tribunal and the Upper Tribunal, given the extent of the fact-finding necessary for the de novo hearing and also due to there being some issues of fairness in the proceedings concerning the SSHD's interview of the appellant and his sponsor in relation to her learning difficulties, epilepsy and depression. Mr Whitwell submitted that he was neutral on the matter, but noted that the case had now been heard twice in the First-tier Tribunal. In our view the most appropriate course would be for the matter to be retained in the Upper Tribunal, despite the extent of the fact-finding to be made, given that this is now the third time around for the appeal being heard. We do not agree with Mr West that there are issues of fairness such as envisaged in paragraph 7.2(a) of the Practice Statements which would mean that that course was not appropriate. The Upper Tribunal is able to hear live evidence and therefore shall retain the case. We do agree with the parties, however, that there needs to be a face-to-face hearing rather than one held remotely.

 

Decision

 

14. Accordingly, we set aside Judge French's decision in its entirety. The case will be listed for a resumed hearing in the Upper Tribunal to re-make the decision afresh, with no findings preserved. "

 

9.       The matter then came before me at a face-to-face hearing on 14 September 2021 for the decision to be re-made. Mr West, who had appeared as counsel for the appellant in the two previous First-tier Tribunal hearings and before the Upper Tribunal, appeared again for the appellant and made an application for an adjournment on the basis that the sponsor was not present and was refusing to attend. He referred to her attendance at the two previous hearings and to her "serious mental health conditions". He referred to the appellant's evidence, in a statement 13 September 2021, stating that his wife had confined herself to her room for the last two months and would not speak to anyone or come out of her room. Mr West submitted that the sponsor's evidence was essential to the question of whether the relationship was genuine and that it was in the interests of fairness and justice to adjourn the proceedings. Mr Clarke, appearing for the Secretary of State, did not oppose the request and also applied for an adjournment himself, in order to amend the refusal decision in line with the decision in Mahmood (paras. S-LTR.1.6. & S-LTR.4.2.; Scope) Bangladesh [2020] UKUT 376 . In the absence of any independent evidence to show that the sponsor's failure to attend was due to her mental health I was reluctant to adjourn, but I eventually agreed to do so in the interests of justice, in particular given Mr Clarke's support for the request. I issued the following directions:

 

"NOTICE AND DIRECTIONS

1.        This case came before me today for a resumed, face-to-face hearing, following the decision of myself and Upper Tribunal Judge Keith, promulgated on 27 May 2021, setting aside the decision of First-tier Tribunal Judge French by reason of error of law. Mr M West, instructed by Temple Solicitors, attended for the appellant and Mr D Clarke, Senior Home Office Presenting Officer, attended for the respondent.

 

2.        Mr West made an application for an adjournment of the proceedings on the basis that the sponsor was not present and had, according to the appellant, confined herself to her bedroom for the past two months. He referred to her attendance at the two previous hearings, to her "serious mental health conditions" and to her vulnerability and submitted that her evidence was essential to the question of whether the relationship between the appellant and sponsor was genuine, such that it was in the interests of fairness and justice to adjourn the proceedings. He accepted that there was no recent supporting medical evidence and no statement from the sponsor's mother to support the reason for her non-attendance but confirmed that such evidence would be provided in the event the hearing was adjourned.

 

3.        Mr Clarke had no objection to the adjournment request on that basis and indeed supported the request, making his own additional request for an addendum decision to be adduced for the respondent relying on paragraph S-LTR.4.2 of Appendix FM of the immigration rules rather than S-LTR.1.6, in line with the decision in Mahmood (paras. S-LTR.1.6. & S-LTR.4.2.; Scope) Bangladesh [2020] UKUT 376. Mr West confirmed that he had no objection to an addendum decision being served on that basis.

 

4.        Despite my stated reluctance to adjourn the proceedings, I agreed to the request largely on the basis that both parties were making a request, that there was no objection by Mr Clarke to the appellant's request and that the refusal decision was to be supplemented by an addendum decision.

 

5.        Accordingly, the proceedings were adjourned and the matter will be re-listed on the first available date for a face-to-face hearing.

 

6.        The following DIRECTIONS are made for the hearing:

 

(a) No later than 14 days before the hearing:

(i)          The respondent will file and serve her addendum refusal decision;

(ii)        The appellant will file and serve all further evidence relied upon, to include up-to-date medical evidence for the sponsor and a statement from the sponsor and/or her mother providing reasons for her failure to attend today's hearing;

(iii)     In the event that the appellant requests a remote hearing rather than a face-to-face hearing, such request is to be made in writing with medical evidence explaining the need for such a hearing; and

(b)    No later than 3 days before the hearing the parties will file and serve any further skeleton arguments to be relied upon."

 

10.   In accordance with the directions, the respondent produced a supplementary refusal letter dated 25 October 2021, relying on paragraph S-LTR.4.2 of Appendix FM of the immigration rules rather than S-LTR.1.6, in line with the decision in Mahmood (paras. S-LTR.1.6. & S-LTR.4.2.; Scope) Bangladesh [2020] UKUT 376. No further evidence was produced by or on behalf of the appellant.

 

The Hearing

 

11.   The matter then came before me again on 1 November 2021. Mr West appeared again for the appellant but advised me that he was having to withdraw from the proceedings because he was professionally embarrassed and that that had only become apparent that morning. He was unable to elaborate further but requested that the proceedings be adjourned again on the grounds that it would be unfair on the appellant to have to proceed without legal representation. Mr West produced a letter purporting to be from the sponsor which had been handed to him by the appellant that morning, prior to the commencement of the hearing, and explained that the sponsor was once again not in attendance.

 

12.   Ms Ahmad opposed the adjournment request and I refused to adjourn. Despite the directions I had made previously no up-to-date medical evidence had been produced and no medical evidence had been produced to support the explanation for the sponsor's non-attendance at the previous adjourned hearing. There was still no evidence to show that the sponsor's mental health had recently deteriorated as claimed and, indeed, the most recent medical evidence produced with the previous adjournment request, dated 4 February 2021, referred to an improvement in her condition, particularly her epileptic seizures. The letter purporting to be from the sponsor which was produced at the hearing provided reasons for her previous non-attendance but could not be considered as independent and reliable evidence. I did not consider that a further adjournment was appropriate and neither did I consider that there was any unfairness in the appeal proceeding in the absence of a legal representative, given in particular that the appellant had had the benefit of legal representation up to a few minutes before the hearing. The appellant was provided with an appeal bundle from the hearing on 19 May 2021 and was assisted with locating relevant documents throughout the evidence. He was given every assistance to enable him to present his case.

 

13.   The appeal then proceeded and the appellant gave oral evidence before me. Mr West withdrew from the proceedings and left the courtroom. The appellant was cross-examined by Ms Ahmad. Ms Ahmad pointed out to the appellant that the sponsor's signature on the letter produced today, whilst the same as that in her statement of 12 February 2019, was completely different to that in her statement of 18 April 2018. Likewise, the sponsor's mother's signature differed in her statements. The appellant responded that the statements were genuine and he did not know why the signatures were different. He insisted that the statement produced today from his wife was genuine and that she had had every intention to attend today but had had a seizure that morning and could not attend in person, although she was willing to speak by telephone if the court required that. Her mother could not come to court as she had to stay with her. He insisted further that his wife and her mother supported his appeal and that that had been demonstrated by the fact that they had attended the previous hearings before the First-tier Tribunal and had supported his application for bail.

 

14.   With regard to the ETS test, the appellant said that he had travelled to Portsmouth to do the test because there were no places available in London in the limited time available to him. He had visited the test centre in Portsmouth four times, including once before the test to register and he explained how he travelled there and how he had booked his ticket. The appellant claimed not to have noticed any cheating during the test and he insisted that he had genuinely completed the test. As for the interview about his marriage, he had told his solicitor about the problems with the interview but had not made a complaint himself. He started living with his wife in February 2017, having met her five months earlier. He was finding it difficult to afford to pay rent himself and he asked her to ask his mother if he could move in with them. Her mother had agreed and so he moved in. He did not contribute financially as he hardly had any money although his parents in Bangladesh and his uncle in the UK sometimes gave him some pocket-money. He denied that he had taken advantage of his wife. He was happy living with her, and she was happy being with him. He had his parents, siblings and extended family members in Bangladesh, but he had not seen them for many years and had not had any recent contact with them. Most of his friends lived in the UK. He could not take his wife with him to live in Bangladesh as she would not have access to free medical treatment as in the UK and would not have the same access to treatment there.

 

15.   Ms Ahmad then made submissions before me. She submitted that the respondent had discharged the burden of proof in regard to the allegation of fraud and deception and asked me to find that the appellant had failed to discharge the burden of proof upon him to show that he had not cheated. He was not in a genuine and subsisting relationship with the sponsor and did not have the intention to live together with her permanently. In any event there were no insurmountable obstacles to family life continuing in Bangladesh. There were no very significant obstacles to the appellant's integration in Bangladesh and no compelling circumstances outside the immigration rules. The respondent's decision was proportionate.

 

16.   The appellant, in response, insisted that his relationship was genuine, that his wife had genuinely intended to attend the hearing today until she had a seizure. He had not cheated in his TOEIC test but had genuinely taken the test. His wife could not live in Bangladesh as she could not access treatment there for her mental health problems. His life was in the UK and, whilst he had family in Bangladesh, he did not have any contact with them. He requested that his appeal be allowed so that he could stay in the UK with his wife.

 

Discussion and Findings

 

17.   Having heard from the appellant myself I have no hesitation in concluding that the decision to proceed with the appeal without a legal representative was the appropriate one and that there was no procedural unfairness, in terms set out in Nwaigwe (adjournment: fairness) [2014] UKUT 418 , in the appeal proceeding in the way that it did. The appellant had had the benefit of legal representation throughout the lengthy appeal procedure and up until a few minutes before the commencement of the hearing and Mr West would have continued to represent him, had he not been professionally embarrassed for a reason he was unable to provide. Mr West's withdrawal was not, therefore, a reason to adjourn the proceedings and the appellant's ability to find another representative in such circumstances was highly speculative.

 

18.   As for the absence of the sponsor and her mother, this was the second occasion upon which they had not appeared before the Upper Tribunal and the previous proceedings were adjourned, reluctantly, to give the sponsor an opportunity to attend to support the appellant's appeal and to provide medical evidence to support the reasons which had been provided for her absence. No evidence had been produced in that regard and no satisfactory explanation was provided for the lack of such evidence. Further, as stated above, the appellant's claim, in his statement provided for the previous adjourned hearing, about the severe deterioration in his wife's mental and physical health was contradicted by the attached letter dated 4 February 2021 referring to an improvement in her condition, particularly her epileptic seizures. The appellant claimed that the Notice of Hearing indicated that the Upper Tribunal would not consider evidence which was not previously before the First-tier Tribunal and that Mr West had confirmed that that was the case, but I do not accept for a minute that that would have been the advice of experienced counsel when it is a clear misreading of the directions and was completely contradictory to the express directions I gave orally at the previous, adjourned hearing and those set out in very clear terms, in writing, in the Notice and Directions of 14 September 2021. The appellant's suggestion to the contrary was disingenuous and did little to assist him in explaining the sponsor's absence.

 

19.   Likewise, the typed statement the appellant produced at the hearing which he claimed was from the sponsor, served only to undermine his credibility further rather than support his explanation for her absence and his claim as to the genuine and subsisting nature of their relationship. As Ms Ahmad pointed out, the signature on that statement, whilst the same as the signature on the statement of 12 February 2019 submitted for the appeal before the First-tier Tribunal, at page 16 of the appeal bundle, was entirely different to the signature on the statement of 18 April 2018 submitted to the Secretary of State in support of the appellant's application, at page 328 of the bundle. I note that it also differs from the signature on page 59 of the FLR (FP) application form. Not only that, but the language of the statement produced at the hearing was entirely different to that in the previous statement and strongly suggested that it was not written by a native English speaker. The appellant was unable to explain the differences in the signatures. He was also unable to explain the differences in the signatures in the statement purporting to come from the sponsor's mother, dated 12 February 2019, at page 18 of the bundle, and the statement dated 23 October 2017 at page 329. As Ms Ahmad submitted, the overwhelming conclusion was that the letter had not been written by the sponsor and that was, again, a further reason not to adjourn the proceedings.

 

20.   Turning to the substance of the appeal, I shall first address the ETS fraud allegation. The evidence relied upon by the respondent in support of the allegation of fraud includes, aside from the generic evidence in ETS cases, evidence specifically related to the appellant, namely the test results from ETS and the Lookup Tool for the college where he claims to have taken the test, at pages 397 to 399 of the appeal bundle. That evidence shows that the appellant's writing and speaking test results on two different occasions were, respectively, invalid and questionable and, further, that on those occasions 61% and 77%, respectively, of the results from the college were found to be invalid, with the remainder being questionable. Therefore, none of the results of the college were reliable and as a result none were released. On the basis of that evidence and the accompanying generic evidence the respondent has plainly discharged the initial burden of proof, in accordance with the guidance in SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 229 .

 

21.   As Ms Ahmad submitted, in light of such significant statistics the appellant clearly has a difficult task to discharge the burden upon him to provide an innocent explanation in response to the fraud allegation. I do not consider that his evidence goes anywhere near meeting that burden. The appellant's own evidence was that he was under pressure to pass the test and find a new sponsor within 60 days, which was his reason for travelling all the way to Portsmouth four times to register for and take the test, at considerable expense, rather than taking the test nearer to home in London, where he claimed there to be a lack of spaces. The chronology of his applications does not appear to support that explanation. In any event, the appellant's limited evidence of academic achievements, despite the extensive period of leave as a student, is a further matter undermining the credibility of his claim to have succeeded as he did in the TOEIC test. As for his reliance upon results from an IELTS test taken on 7 December 2010 and a Masters qualification from Anglia Ruskin University in April 2015, at pages 163 and 164 of the appeal bundle, I give little weight to those as reliable evidence of his ability in English, when considering the questionable nature of his TOEIC certificates and his level of English at the hearing before me which was often difficult to understand. Taking all of those matters together, and considering the appellant's credibility as a whole, I consider that he has failed to provide an innocent explanation and that the respondent has accordingly discharged the burden of proving fraud and deception. The respondent was accordingly fully and properly entitled to find that the suitability provisions applied to the appellant and, in accordance with the supplementary decision of 25 October 2021, properly exercised discretion against him in refusing his application under paragraph S-LTR.4.2, as consistent with the guidance in Mahmood (paras. S-LTR.1.6. & S-LTR.4.2.; Scope) Bangladesh [2020] UKUT 376. As such, the appellant was excluded, under suitability grounds, from meeting the requirements of Appendix FM of the immigration rules.

 

22.   In any event I have no hesitation in concluding that the appellant could not meet the requirements of Appendix FM on eligibility grounds, in regard to his relationship to the sponsor. I consider that the respondent properly concluded that the relationship was and is not a genuine and subsisting one. I agree with Ms Ahmad that the strong indication is that the sponsor and her mother ceased supporting the appellant some time ago. Indeed, despite their attendance before Judge Lodge and Judge French and at the bail hearing, I consider it unlikely that there ever was a genuine and subsisting relationship.

 

23.   The fact that the sponsor has now, on two occasions, failed to attend the hearing of the appellant's appeal is a particularly strong indication that she no longer supports his application. For the reasons given above in relation to the adjournment request, I do not accept that a credible reason has been provided for her absence and I do not accept that she has been prevented from attending as a result of her mental health and her medical condition. Whilst there is no doubt that she suffers from such problems, as that is confirmed and supported by the evidence, I do not accept that that is the reason for her absence. For the reasons given above , I consider it very likely that the statement produced at the hearing did not come from the sponsor. Indeed, given the language of the statement, there is a strong indication that the appellant wrote it himself, but in any event it was certainly not written by the sponsor. The conclusion that there never was a genuine and subsisting relationship is also supported by the inconsistencies in the evidence of the appellant and the sponsor at the marriage interview. I do not propose to set these out in any detail as they are clearly referred to in Judge French's decision at [3] and the latter part of [10]. Although that decision has been set aside, there has been no challenge to the fact that there were such inconsistencies, and I am therefore able to refer to that part of the decision.

 

24.   The appellant's grounds of challenge in relation to those inconsistencies was that the judge's sole reliance on them was not a proper approach to determining the question of the genuineness of the marriage, when there was otherwise copious evidence of a genuine relationship. However, I fail to see where such copious evidence, as referred to [51] to [59] of the grounds, exists. Indeed that evidence, when considered carefully, is in fact very limited, consisting of some photographs which do little to assist the appellant in portraying a loving relationship and some correspondence, bills and bank statements which show no more than that the appellant and sponsor both received mail sent to the same address. No further evidence has been produced for the hearing before me, which is somewhat surprising given the appellant's insistence that the relationship continues to be a strong and genuine one. The statements of the sponsor and her mother add little or no weight to the evidence given the concerns already mentioned and the lack of independence of such evidence. As for the suggestion that the sponsor's learning difficulties, mental health concerns and problems during the interview provided an explanation for the inconsistencies, I do not accept that that is supported by the evidence. I do, of course, have regard to Judge Lodge's finding that there was overwhelming evidence of a genuine and subsisting evidence, a matter which Judge French was criticised for failing to do, but, aside from the fact that his decision was set aside in its entirety, it is relevant to note that he did not specify what was so overwhelming about that evidence and that he also found the appellant to have cheated at the interview by relying upon a crib sheet. Further, the evidence has moved on since then and there are the significant additional concerns about the lack of any recent and genuine support from the sponsor or her mother which undermine the weight to be given to their previous evidence.

 

25.   Accordingly, in light of the inconsistencies between the evidence of the sponsor and the appellant in their marriage interview, the lack of any current independent and reliable evidence of support for the appellant and having regard to the general lack of credibility of the appellant as a witness, including his previous fraudulent conduct in relation to his studies, I reject the claim that there was or is a genuine and subsisting relationship between the appellant and the sponsor. For that reason, the appellant clearly cannot meet the eligibility requirements in Appendix FM on the basis of family life.

 

26.   Neither is the appellant able to demonstrate any very significant obstacles to integration in Bangladesh for the purposes of paragraph 276ADE(1), having spent the majority of his life in that country and given the fact that his parents and siblings and extended family remain in that country. I reject his claim to have lost contact with his family in Bangladesh, in view of his overall lack of credibility and his unreliability as a witness, but in any event whether or not he currently has such contact is immaterial as it remains open to him to resume contact on his return to that country. There is no reason, in any event, why the appellant cannot re-establish himself in Bangladesh and support himself through employment. There are no compelling circumstances justifying a grant of leave outside the immigration rules. The appellant has been in the UK over ten years, but the majority of that time has been without leave and on the basis of having made several unsuccessful applications. He has had no proper basis of stay for a considerable period of time. He has used deception and fraud to enable himself to extend his period of leave and relies upon a relationship which has been found not to be genuine and subsisting.

 

27.   In all of these circumstances the appellant has clearly failed to show that the respondent's decision is disproportionate. His removal from the UK would not breach his Article 8 rights and his human rights appeal is accordingly dismissed.

 

DECISION

 

28.   The original Tribunal was found to have made an error of law and the decision was set aside. I re-make the decision by dismissing the appellant's appeal on all grounds.

 

 

 

Signed S Kebede

Upper Tribunal Judge Kebede Dated: 3 November 2021