Turkish national wins appeal for re-hearing of case to remain in UK with Scottish wife

Lord Menzies
Lord Menzies

A Turkish national who was seeking leave to remain in the UK as the spouse of his Scottish wife has successfully appealed against the decision to refuse his application.

The Inner House of the Court of Session ruled that the First-tier Tribunal failed to make findings in fact about the appellant’s case and to consider his right to a private and family life in Scotland.

Lady Paton, Lord Menzies and Lord Glennie heard that the appellant Orhan Mendirez, 56, came to the UK in 2007 on an “Ankara agreement” visa, two years before meeting a Scottish woman who he married in 2014. 

‘Significant interference’

Mr Mendirez applied for leave to remain in the UK as the spouse of his wife Donna Alice Mendirez, who was his sponsor, but the then Secretary of State for the Home Department Theresa May refused the application on the basis that the sponsor did not meet the financial requirements of the Immigration Rules.  

The appellant appealed against this refusal under section 82(1) of the Nationality Immigration and Asylum Act 2002 to the FTT.

The tribunal was told that Mrs Mendirez was supporting her husband, having set up her own small business with a profit of just over £12,000 and a projected profit of £25,000.

It was submitted that if the appellant was removed there would be “significant interference” with the private life of both him and his wife in terms of article 8 of the European Convention on Human Rights (ECHR), and that it was “proportionate” to allow the appeal on article 8 grounds outside the Immigration Rules.

But the FTT dismissed the appeal under the Immigration Rules and further dismissed it on human rights grounds in a decision dated 6 June 2016.

Following the Upper Tribunal’s (UT) dismissal of his appeal on 21 December 2016, the Court of Session granted his application to appeal against the decisions of the FTT and UT.

The court observed that the UT’s decision letter contained two errors, as it stated that the appellant had overstayed for about one year prior to making the application when in fact he was not an overstayer for any period prior to making the application, and that the appellant had conceded that he could not meet the terms of the Immigrations Rules when in fact there was no such concession.

‘No findings in fact’

Senior counsel for the appellant indicated that the appellant’s wife was no longer self-employed and running her own business, but was now employed and was still able to support him financially from her earnings.  

It was submitted that there were no findings in fact as to the nature of the relationship between the appellant and his wife, nor as to the nature of his or her engagement with local friends and family and the business community in Dumfriesshire.  

Not only did the FTT judge not appear to have considered the effect on the appellant’s wife’s private life and family life if she went to Turkey with her husband, but the judge did not consider or analyse the difficulties which would face the appellant and his wife if they went to Turkey.  

No consideration was given to the fact that the appellant was a non-practising Muslim with a non-Muslim wife, moving to a country which was adopting increasingly orthodox Muslim norms and potential social consequences for the couple.

Senior counsel submitted that in human rights claims it was necessary “for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account”, but there was nothing to suggest that the FTT had considered any if these matters, and nothing in the decision of either the FTT or the UT to indicate that “anxious scrutiny” had been given to the issues.

In these circumstances, it was argued that the case should be remitted to a differently constituted FTT. 

But counsel for the respondent submitted that there was “no material error of law” in the FTT’s decision.

It was argued that there were “no insurmountable obstacles” in the way of the appellant and his wife living in Turkey, “nor any exceptional circumstances”, and the appellant’s family life with his wife was created at a time when both were aware that his immigration status was “precarious”. 

‘Anxious scrutiny’

However, the appeal judges ruled that the criticisms of the FTT’s approach to the case were “well founded”.

Delivering the opinion of the court, Lord Menzies said: “It does not appear to us that either the FTT or the UT have approached this matter with the anxious scrutiny required of an appeal such as this. Although he mentioned the issues of insurmountable obstacles, proportionality and exceptional circumstances in the course of his decision letter, the FTT judge has made no findings in fact on which to base any analysis of these issues.  

“The appellant’s wife was born in Scotland and has lived in Scotland all her life; she has family and friends here. It seems likely that the appellant will have developed a private life in the UK since his arrival in 2007…The FTT judge makes no findings in fact about that relationship, nor about any private life in Scotland.  

“There are no findings in fact about the effect that moving back to Turkey (with or without his wife) might have on the appellant’s private life in Scotland or his relationship with his wife. There are no findings in fact relating to how easy or difficult it would be for the appellant (with or without his wife) to find accommodation and employment in Turkey nor how easy it would be for them to be absorbed into Turkish society, standing the appellant’s status as a non-practising Muslim and his wife’s status as a non-Muslim who has objections to wearing the hijab.”

The judges did not suggest that these factors would inevitably result in the appeal being allowed on the basis of insurmountable obstacles under the rules, or exceptional circumstances under article 8, but they were factors which required to be taken into account and analysed with anxious scrutiny by any tribunal before it reaches its decision.  

Lord Menzies added: “The analysis which is required when considering issues of insurmountable obstacles, proportionality and exceptional circumstances is, we consider, one which must inevitably consider the weight to be given to the existing relationship within the UK and the private life within the UK, and any obstacles arising from return to the appellant’s home country, and balance these against the considerable weight to be attached to the public interest in a suitably robust immigration policy, as set out in the respondent’s immigration rules as approved by Parliament.  

“An exercise considering whether the application of policy is appropriate or proportionate in a particular case requires consideration to be given to all the relevant facts found established in a case. It does not appeal to us that the FTT judge has carried out such an exercise.”

The court therefore allowed the appeal and remitted the case to be determined by a differently constituted First-tier Tribunal.

© Scottish Legal News Ltd 2020

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