Secretary of State for the Home Department v Shazia Sabir

Paragraph EX.1 of Appendix FM is not a free-standing route to leave to remain. It operates only within the alternative route in paragraph R-LTRP.1.1(d), whose conjunctive requirements must first be met.

Although the Immigration Rules incorporate the Article 8 balance, a refusal remains lawful only if compatible with established Article 8 principles. In a partner case, the proportionality assessment must give proper weight to immigration control and to whether a temporary return to seek entry clearance would cause unjustifiably harsh consequences. A near miss under the Rules cannot itself supply the substance of a human-rights claim.

The Secretary of State appealed against a First-tier Tribunal decision allowing Ms Sabir’s appeal against refusal of her application to vary leave to remain as the spouse of a British citizen. The First-tier Tribunal found that she could not meet paragraph 284 of the Immigration Rules, but treated paragraph EX.1 of Appendix FM as free-standing and found insurmountable obstacles to the couple living in Pakistan.

The Secretary of State contended that EX.1 formed part of the requirements in R-LTRP.1.1 and that the Article 8 assessment was inadequate. The Upper Tribunal also considered whether it would be proportionate to require the claimant, who had entered as a visitor and did not meet the Rules, to return temporarily to Pakistan to seek entry clearance as a spouse.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal had made material errors of law. Its decision was set aside and the claimant’s appeal was re-made and dismissed.

2. Paragraph EX.1 was not an independent basis for leave. The structure of Appendix FM required an applicant to meet all the conjunctive requirements of R-LTRP.1.1(d), including E-LTRP.2.1, before EX.1 arose. Since the claimant was in the United Kingdom as a visitor, she could not meet E-LTRP.2.1 and therefore could not qualify under either route in R-LTRP.1.1. The First-tier Tribunal erred by considering EX.1 irrespective of those requirements.

3. The Rules had to be read with Article 8 principles. A decision made under the Rules was sustainable only if it accorded with those principles and with the Secretary of State’s policy against refusals producing unjustifiably harsh and disproportionate consequences. The First-tier Tribunal’s finding of insurmountable obstacles lacked sustainable reasoning. It did not properly assess the asserted risk from the claimant’s brother, alternative accommodation or support in Pakistan, or the sponsor’s mother’s care needs.

4. On the re-made decision, the Tribunal was not satisfied that the claimant faced the alleged risk, could not stay with a sibling in Pakistan while awaiting an entry-clearance decision, or was required in the United Kingdom to care for her mother-in-law. The claimant’s temporary return to seek entry clearance would be proportionate. The public interest included effective immigration control, her visitor status, and her failure to meet the financial and residence requirements. Her prospects of satisfying the entry-clearance Rules were irrelevant to that proportionality assessment.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal, set aside the First-tier Tribunal decision for material errors of law, and re-made the claimant’s appeal by dismissing it.

• First-tier Tribunal: allowed the claimant’s appeal under paragraph EX.1 of Appendix FM and on human-rights grounds, despite finding that she did not meet paragraph 284 of the Immigration Rules.