Indian overstayer successfully challenges decision to reject leave to remain application

Lady Wise
Lady Wise

An Indian man whose application for leave to remain in the UK based on his marriage to a British woman was refused has successfully challenged the decision.

A judge in the Court of Session reduced the decision by the Home Office after ruling that officials failed to take into consideration new material submitted in support of the application, which claimed to show that there were “insurmountable obstacles” to the couple living in India.

‘Leave to remain’

Lady Wise heard that the petitioner “AS” a entered the United Kingdom as a visitor in September 2006, but thereafter he overstayed. 

In June 2010 he met a British national, “SCS”, and became engaged to her on Valentine’s Day in February 2012. 

The petitioner and his now wife married on 15 April 2013 and have resided together for some years since the date of their marriage. 

In May 2013 the petitioner made an application for leave to remain in the UK on the basis of his relationship and marriage, but his application was refused by officials acting on behalf of the Secretary of State for the Home Department and an appeal to the First-Tier Tribunal (FTT) was unsuccessful. 

Further submissions were made by the petitioner, which were rejected in August 2017. 

Then, on 6 October 2017, the petitioner tendered further submissions which relied on his relationship with his wife and maintained that there were “insurmountable obstacles”, in accordance with paragraph EX.1 of appendix FM to the Immigration Rules, to their continuing family life in India.

It was also submitted that it would be “disproportionate” to expect such family life to continue there. 

‘Insurmountable obstacles’

However, those further submissions were rejected in a decision of the respondent of 13 October 2017, following which the petitioner lodged a petition for judicial review.

The court was told that a number of documents were produced with the submissions of 6 October 2017 including an expert report from a Mr Puri, who has legal qualifications obtained in London (LLB, LLM) and practices as an advocate in India. 

The petitioner also tendered in support of his submissions the Home Office’s own Country Information and Guidance dated April 2015 concerning women fearing gender-based harm or violence in India. 

The principal arguments presented to the court at the hearing related to the respondent’s failure to scrutinise the terms of both Mr Puri’s 33-page report, which was not mentioned in the decision letter at all, and the Country Guidance Report. 

In particular, it was submitted that the failure to have proper regard to those documents was a “material error”.

It was argued that there was evidence to establish that there were “exceptional circumstances”, which would amount to “insurmountable obstacles”, arising from the content of Mr Puri’s report and the Country Guidance Report.

The reports highlighted a number of factors, including the “cultural situation” and “linguistic difficulties” which the petitioner’s wife would face in India; the lack of access to any state benefits for the petitioner’s wife, who was said to be suffering from “complex health difficulties”; the fact that she would face discrimination in a country with a “high degree of violence” towards women; and the “uncertainty” about whether she could secure a visa to stay in India. 

‘Material error’

The judge reduced the decision after concluding that the respondent’s failure to give any proper consideration to the new documentation provided in support of the petitioner’s fresh claim was a “material error”. 

In a written opinion, Lady Wise said: “On the face of it Mr Puri is a well-qualified British educated advocate qualified and practising in his own jurisdiction, namely India. His report is a combination of matters clearly within the legal expertise and experience of the author such as the legal requirements for visas and social security benefits in India on the one hand and on the other, information about the country, its treatment of women and foreigners generally that are not legal matters but about which the author of the report speaks as a professional person to issues of fact within his knowledge. 

“Importantly, on the issue of violence against women there is considerable consistency between Mr Puri’s report and the Home Office’s own Country Guidance on violence against women in India. The report runs to some 33 pages and gives considerable detail on the issues of visas, financial obstacles, absence of comprehensive medical care provided by the state and lack of eligibility of foreigners for such services as are available, in addition to that issue of gender violence. 

“It is not for me to decide whether this new material will in fact ultimately persuade an Immigration Judge that the petitioner and his wife would face very serious difficulties if they tried to continue their family life in India. However, it is on the face of it relevant material that goes to the heart of whether a British citizen who has lived here all of her life, does not normally travel and has certain medical conditions would be able to cope with the considerable challenges of attempting to settle in a country where her legal ability to do so is no higher than having a right to apply for a visa, the threshold test for which is ‘very high’ and where significant linguistic and cultural barriers would be faced. 

“Those are matters which are squarely raised by the new material such that an adjudicator could interpret it as supporting an insurmountable obstacles claim. The respondent’s own Country Guidance Information which as indicated is consistent on the issue of violence against women with Mr Puri’s report, was clearly within the respondent’s knowledge and is not referred to even in passing in the reasoning within the decision letter.”

She added: “The important question that the petitioner sought to raise is whether, against the background of that information about his wife’s medical condition and related circumstances, the additional challenges that she would face in India, as outlined in and supported by Mr Puri’s report together with the Country Guidance Information, resulted in a fresh claim of insurmountable obstacles being satisfied. 

“I conclude that an Immigration Judge could find in the Petitioner’s favour on insurmountable obstacles on a proper analysis of the new material taken together with the existing material. To put it another way, I cannot conclude that the outcome would have been the same had the respondent properly scrutinised the new material.”

© Scottish Legal News Ltd 2020

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