Leave to remain with a partner of British national without a valid leave.

Summary of facts

The Appellant entered the United Kingdom clandestinely on 1 November 2011 and had lived in the United Kingdom without valid Leave since. He entered into a relationship with a British national, during a period of time in which he did not have extant Leave to Remain in the United Kingdom. An application seeking Leave to Remain as the Partner or Spouse of a British national (as regulated by Appendix FM of the Immigration Rules) was submitted and refused by the Home Office for the following reasons-

1. It was not accepted that the Appellant and his partner DH had been cohabiting in a relationship akin to a civil partnership/marriage for at least two years (and thereby falling outside the definition of term ‘Unmarried Partner’); and
2. That there were no ‘Insurmountable Obstacles’ preventing the Appellant’s partner from living with the Appellant abroad. By way of an explanation, Applicants who do not hold extant Leave to Remain in the United Kingdom are expected to submit their Partner application from outside the United Kingdom. This is known as the ‘Immigration Status Requirement’. However, in exceptional circumstances, the Home Office may nonetheless grant an Applicant Leave to Remain notwithstanding the fact that they do not meet the Immigration Status Requirement. This exception is known as ‘EX.1’.

Reiss Edwards represented the Appellant in his appeal challenging the impugned decision. The Grounds generally pleaded-

1. That the Home Office misdirected themselves in the consideration of the Appellant’s application. The failure to review the papers with anxious scrutiny and holistically meant that the conclusions reached by the Home Office were legally unsafe and untenable.
2. It was submitted that EX.1 had in fact been met. Regrettably the Appellant’s country of origin does not accept homosexuality in any form. Therefore, there was a real risk that the Appellant’s partner would face harm to his safety if he was to reside with the Appellant and conduct his same-sex relationship with the Appellant openly. Linked to this, it was averred that the discrimination that the Appellant’s partner would suffer as a gay man would prevent him from leading any meaningful private life in the Appellant’s country of origin. It was further pleaded that the expectation to conduct their relationship discreetly in order to avoid harm and discrimination would be unfair on both the Appellant’s and his partner’s right to a family life together. Background country evidence was collated by Reiss Edwards and tendered as evidence to support this particular ground.

Outcome

The appeal went before the First-Tier Tribunal (Immigration and Asylum Chamber) (‘FTT’) and allowed by the Judge on the day.

The Judge found without hesitation that the Appellant and his partner were in a genuine and subsisting relationship and that the documents relied on by the Appellant proved that he had cohabited with his partner for at least 2 years.

The Judge further found that with respects to EX.1, the background country evidence did in fact support the Appellant’s claim that both the safety of the Appellant and his partner would be at real risk of harm in the event that they lived together in his country of origin. The Judge accepted the submission raised by Reiss Edwards that the risk to safety when raised within the ambit of a human rights appeal did not need to treated as an asylum claim. The issue germane to the appeal was whether or not the risk of harm was sufficiently high as to amount to an Insurmountable Obstacle. Questions of whether or not the Appellant or his partner could engage the assistance and protection of the authorities and other fundamental asylum principles were not relevant within a human rights appeal.

Achievement

This particular finding is one which our immigration solicitors is particularly proud of, as it goes against the Home Office’s long-standing position that any claim of harm should not be considered within the sphere of human rights but exclusively be considered as part of an asylum claim.