Biplab Kumar Sarkar v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Tomlinson,Sir Robin Jacob |
| Judgment Date | 26 February 2014 |
| Neutral Citation | [2014] EWCA Civ 195 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 February 2014 |
| Docket Number | Case No: C5/2013/0169 |
[2014] EWCA Civ 195
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION and ASYLUM CHAMBER)
Upper Tribunal Judge Spencer
IA/13819/2012, IA/13824/2012 & IA/13827/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice Tomlinson
and
Sir Robin Jacob
Case No: C5/2013/0169
Mr. Zane Malik and Mr. Rajiv Sharma (instructed by Malik Law Chambers Solicitors) for the appellant
Mr. Thomas Roe (instructed by the Treasury Solicitor) for the respondent
This is an appeal against a decision of the Upper Tribunal dated 17 th December 2012 allowing, but only to a limited extent, the appellants' appeal against the decision of the First-tier Tribunal, which had dismissed their appeal against the refusal of the Secretary of State to grant the first appellant further leave to remain in this country as a Tier 4 (General) migrant and the service on him of a notice of a decision to remove him pursuant to section 47 of the Immigration, Asylum and Nationality Act 2006.
The first appellant is a citizen of Bangladesh who entered this country in October 2003 as a student. He was initially granted leave to remain until 31 st October 2006, which was subsequently extended on successive occasions to 8 th September 2011. In June 2010 his wife, the second appellant, joined him in this country, also with leave to remain until 8 th September 2011, and they now have a young son, the third appellant, who was born here on 19 th May 2012.
On 8 th September 2011 the first appellant applied for further leave to remain as a Tier 4 (General) Student Migrant under the Points-Based System and in support of his application he submitted a bank statement from Agrani Bank. The Secretary of State refused his application under paragraph 322(1A) of the Immigration Rules because she was satisfied that the bank statement was a forgery and that he had therefore submitted a false document in support of his application. Moreover, in order to qualify for the grant of leave to remain as a Tier 4 (General) Migrant the appellant had to be awarded 30 points under Appendix A to the Immigration Rules in respect of the course he intended to undertake. The Secretary of State was not satisfied that the course he proposed to undertake represented academic progress and she therefore refused to award him the necessary points.
The first appellant, his wife and son all lodged appeals to the First-tier Tribunal against the Secretary of State's decision. Their grounds of appeal dated 14 th June 2012 were settled by their former solicitors and ran to over 15 pages. The appellants challenged both the Secretary of State's finding that the bank statement was a forgery and her refusal to award the first appellant 30 points in respect of his proposed course of study. In addition, in one short paragraph the appellants raised article 8 of the European Convention on Human Rights ("ECHR") in the following terms:
"In the alternative the Appellants rely on Article 8 of the ECHR and in particular family and/or private life."
The third appellant also claimed that the Secretary of State had failed properly to take into account his best interests pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act"), though since he was only 10 days old when she dealt with his application, it is not clear in what respects she had failed to discharge her duty.
At the hearing before the First-tier Tribunal on 9 th August 2012 the appellants were represented by their former solicitors. No evidence was adduced in support of their article 8 claim and no argument was addressed in support of it. Nor was any argument advanced in support of the third appellant's submissions on section 55 of the 2009 Act. The tribunal, not surprisingly, failed to deal with either of those points. If asked, it would probably have said that the arguments had not been pursued and had in effect been abandoned.
The appellants appealed to the Upper Tribunal on grounds which included an allegation that the First-tier Tribunal had materially erred in law by failing to consider their claim under Article 8 of the ECHR.
When the application for permission to appeal came before the Upper Tribunal Judge Spencer took the provisional view that the appeal as a whole could fairly be disposed of without an oral hearing. In the formal notice of his decision dated 18 th October 2012 he said:
"It is unnecessary to hold an oral hearing of the application for permission to appeal because I consider that it can properly be dealt with on the papers.
Permission to appeal is granted.
REASONS
(including any decision on extending time)
The grounds of appeal, which assert that it is only if the last period of leave was as a student that there is a requirement to show academic progress. In my view this is an unarguable proposition … It is also the case, as was pointed out by the First-Tier Tribunal judge who refused permission to appeal in the First-Tier Tribunal, that no evidence was adduced in support of the appellants' human rights grounds of appeal under article 8 of the ECHR. The appeal proceeded on the basis of oral submissions. Therefore I refuse leave on the grounds advanced. I do, however, take a Robinson obvious point in favour of the appellants, which is that the decision to remove them was not lawful, having regard to the decision of the Tribunal in Ahmadi (s.47 decision: validity; Sapkota) Afghanistan [2012] UKUT 147 (IAC). If the decision is set aside on this basis then if a further decision to remove is made the appellants will be able to argue their human rights grounds of appeal, which would appear were neglected by their representative at the hearing.
NOTE: For the reasons set out above I have taken the provisional view that these appeals should now be allowed on the limited basis which I have indicated and the decision of the First-tier Tribunal re-made without any further hearing by allowing the appeals to the extent that the decisions to remove were not in accordance with the law. Any submissions to the contrary must be made to the Upper Tribunal (Immigration and Asylum Chamber) … within 21 days of the date of this Order." (Original emphasis.)
It was quite clear from that order that the judge was proposing to allow the appeal on the limited ground that the decision to remove the appellants was unlawful because the Secretary of State had purported to give notice of her intention to do so in the same letter as that in which she had refused the application for leave to remain, but to refuse permission to appeal on all other grounds, including the article 8 ground. (The third appellant's argument based on section 55 of the 2009 Act did not form any part of the grounds of appeal to the Upper Tribunal. It was not suggested that the First-tier Tribunal had erred in failing to consider it.) The effect of what was being proposed was that the Secretary of State's decision to refuse to grant the appellants further leave to remain would stand, but that her decision to remove them would be quashed. The parties were expressly invited to make submissions in opposition to the course proposed by the judge, but none of them did so. As a result on 17 th December 2012 he promulgated his decision allowing the appeal on the sole ground indicated in his...
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