Afghan man with British partner wins right to ‘in-country’ appeal against refusal of leave to remain

The decision to certify his claim meant that Aziz Hussini would be unable to appeal the decision from within the UK, but a judge in the Court of Session ruled that the Secretary of State for the Home Department “erred in law” by failing to give “proper consideration” to the merits of the petitioner’s case.

Lord Armstrong heard that the petitioner, 24, left Afghanistan in late 2008, and entered the UK in June 2009, but his claim for asylum was refused.

He was subsequently granted discretionary leave to remain as a minor, valid until November 2010, and having initially been refused further leave to remain he was subsequently granted leave to remain, until January 201, as the partner of a woman.

By application received by the respondent in January 2016, he applied for further leave to remain as the partner of another British woman, Angela Jane Fenton, on the basis of his family and private life in the UK.

His application was considered under the 10-year partner and private life routes of the Immigration Rules, but since the petitioner did not meet the definition of a “partner”, no question of consideration of “insurmountable obstacles” to family life arose.

As the claim failed, it was also considered outside the Immigration Rules on the basis of “exceptional circumstances,” but was refused in that regard also.

By decision, dated 31 July 2016, the respondent also certified the petitioner’s human rights claim as being clearly unfounded, in terms of section 94(1) of the Nationality, Immigration and Asylum Act 2002.

The petitioner sought reduction of the decision to certify his claim under section 94(1), the effect of which would be to allow him the opportunity to make an in-country appeal to the First-tier Tribunal.

The submission for the petitioner was that the respondent failed to take into account material factors, indicative of what would be “unjustifiably harsh consequences” for the petitioner and his partner, which, had they been taken into account, would not have justified the certification of the claim as being clearly unfounded.

It was argued that there were “compelling factors” which could outweigh the need to require removal from the UK. Even if, at the time of his application, the petitioner’s immigration status was to be considered precarious, the situation which he and his partner would face in Afghanistan was such a compelling factor.

The question for the respondent had been whether there was a “sensible reason” to require him to return to Afghanistan in order to apply for entry clearance from there, but she erred in law by finding, in effect, that it would be proportionate to do so without an assessment of proportionality or the identification of a sensible reason.

The petitioner had provided, with his application, information relating to the nature of his relationship with Ms Fenton and submitted evidence of his intention to marry her.

The petitioner’s application also included evidence of the “unstable security situation” in Afghanistan, as well as other supporting material, and the respondent was under a duty to consider Home Office guidance on the security and humanitarian situation in the country.

It was argued that by failing properly to take such information into account, the respondent had failed properly to exercise “anxious scrutiny”.

The judge observed that it appeared, from the content of the decision of 31 July 2016, that the respondent’s approach to the issue of exceptional circumstances was influenced by the determination that, since the petitioner did not meet the definition of a partner, Article 8 was not engaged.

However, he added that, in determining the case it was necessary to consider “all factors relevant to the specific case in question”.

In a written opinion, Lord Armstrong said: “On a fair reading of the decision of 11 July 2016, its terms do not indicate that proper consideration was given to all factors relevant to the petitioner’s case, in relation to the nature of his relationship, as assessed for the purposes of Article 8 outside the Immigration Rules, or in relation to the question of whether it was demonstrated that there were exceptional circumstances to be taken into account. The apparent failure to do so indicates an error of law on the part of the respondent, by failing properly to make the requisite judgement on proportionality. In consequence, I find that in certifying the petitioner’s claim as she did, the respondent did so without having properly assessed its merits.

“Even putting to one side the new information imparted in the course of the submissions, to the effect that the petitioner and Miss Fenton do now cohabit, and that he would meet the financial requirements of entry clearance and leave to remain, I accept that it cannot justifiably be asserted that anyone carrying out a proper assessment, involving consideration of all the relevant factors and applying the appropriate test of proportionality, would inevitably reach the same decision as the respondent did, that is, that the petitioner’s claim had no prospect of success and was bound to fail.

“In particular, I am satisfied that, on such an appropriate approach to the petitioner’s application, it cannot justifiably be asserted that he would necessarily fail to demonstrate that, in light of all the relevant known facts, family life was established on the basis of his relationship with Ms Fenton and thus Article 8 engaged.

“On that basis, in light of the material submitted with the application, I am persuaded that it cannot justifiably be asserted that the petitioner would be bound to fail in seeking to identify the necessary weighty factors in his favour, amounting to exceptional circumstances, which would be necessary to overcome the normal result in this type of precarious status case. For these reasons, I find that the respondent erred in law by certifying the petitioner’s claim as she did.”