Kaur v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, a citizen of India, initially entered the United Kingdom as a visitor in 2006 and subsequently obtained various visas and leave to remain, including as a Working Holiday Maker and a Tier 4 Student. The Appellant married an individual who had entered the UK unlawfully but later obtained Indefinite Leave to Remain and naturalised British citizenship. The Appellant’s application for Leave to Remain as a spouse was granted in 2013, relying in part on a fraudulent English Language test certificate (TOEIC) and a UK NARIC letter regarding her degree.

In February 2015, upon returning to the UK, the Appellant was refused entry and her existing Leave to Remain was cancelled due to false representations related to the fraudulent test certificate. The Appellant exercised her right of appeal, challenging the deception allegation and asserting an Article 8 ECHR claim. The First-tier Tribunal dismissed her challenge in August 2015. After refusals of permission to appeal and judicial review proceedings, the Upper Tribunal set aside the First-tier Tribunal’s decision in February 2020, retaining the appeal for a de novo hearing.

In June 2022, the case was heard by the Upper Tribunal Judge (UTJ) Gleeson, who dismissed the Appellant’s appeal on the grounds that deception was proven and the decision to cancel leave was compatible with Article 8 ECHR. The present appeal challenges the UTJ’s approach to the Article 8 claim.

Legal Issues Presented

1. Whether the UTJ erred materially in her approach to and conclusions regarding the Appellant’s Article 8 ECHR claim made outside the Immigration Rules.

Arguments of the Parties

Appellant's Arguments

• The UTJ failed to conduct a proper proportionality assessment of the Article 8 claim.
• The UTJ did not perform any balancing exercise weighing relevant factors in the decision.
• The UTJ made at least one material error of fact, notably regarding the citizenship status of the Appellant’s husband.
• The UTJ failed to consider other relevant matters such as the length and nature of the marriage, the husband’s naturalisation as a British citizen, and the potential difficulties faced by the husband if the Appellant were removed.
• The fraudulent English Language test certificate may have been irrelevant to the decision to grant Leave to Remain, reducing the weight of the deception allegation in the Article 8 assessment.

Respondent's Arguments

• The UTJ had all relevant matters in mind as evidenced by her review of the evidence.
• The limited analysis in the UTJ’s decision reflects the limited evidence presented by the Appellant.
• The proportionality assessment conducted by the UTJ was appropriate and sufficient on the facts.
• Even if the proportionality assessment was inadequate, the outcome would inevitably have been the same.
• The UK NARIC letter did not satisfy the English Language requirement, justifying reliance on the fraudulent certificate.

Table of Precedents Cited

Court's Reasoning and Analysis

The court considered that the UTJ properly identified the issues of deception and the Article 8 claim but found the proportionality assessment in paragraphs [73] and [74] of the UTJ’s decision to be insufficient. The UTJ rejected the Appellant’s claim of family disapproval but failed to explain the weight given to other factors such as the Appellant’s IVF treatment and the social difficulties alleged.

The UTJ made a material factual error by misidentifying the citizenship status of the Appellant’s husband, assuming he was an Indian citizen, when evidence showed he was a British national. This error impacted the assessment of whether there were insurmountable obstacles to the couple living together in India.

The court noted that the UTJ did not address several relevant factors, including the length and nature of the marriage, the husband’s lawful presence and naturalisation in the UK, or the consequences of removal for the husband and Appellant. Crucially, the UTJ failed to conduct any balancing exercise to weigh the factors for and against the Appellant’s Article 8 claim, undermining the transparency and clarity of the decision.

The court rejected the Respondent’s argument that the outcome would inevitably be the same if a proper assessment had been conducted, emphasizing that the presence of potentially exceptional circumstances warranted reconsideration. The court declined to pre-judge the merits of the Article 8 claim or the relevance of statutory provisions governing suitability.

Holding and Implications

The court ALLOWED THE APPEAL and QUASHED the Upper Tribunal’s determination on the Article 8 claim. The case is REMITTED to the Upper Tribunal for a fresh determination of the Article 8 claim, on the basis that the deception claim and the absence of family disapproval remain resolved against the Appellant.

The direct effect is that the Appellant’s Article 8 claim will be reconsidered with a proper proportionality assessment that includes all relevant factors and a clear balancing exercise. No new precedent was established by this decision; rather, it underscores the necessity for thorough and reasoned proportionality assessments in Article 8 cases outside the Immigration Rules.