Upper Tribunal (Immigration and asylum chamber), 2024-03-12, UI-2023-003753
| Appeal Number | UI-2023-003753 |
| Hearing Date | 04 March 2024 |
| Date | 12 March 2024 |
| Published date | 27 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-003753 |
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First-tier Tribunal No: HU/54691/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 12th of Mach 2024
Before
UPPER TRIBUNAL JUDGE HANSON
Between
HARUN ALI
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms A Choudry of Counsel.
For the Respondent: Ms Z Young, a Senior Home Office Presenting Officer.
Heard at Phoenix House (Bradford) on 4 March 2024
DECISION AND REASONS
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The appellant appeals with permission a decision of First-tier Tribunal Judge Hands (‘the Judge’), promulgated following a hearing at Newcastle on 30 June 2023, in which she dismissed the appellant’s appeal on human rights grounds.
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The appellant is a citizen of Bangladesh born on 10 June 1983 who sought leave to remain in the United Kingdom outside the Immigration Rules pursuant to Article 8 ECHR. The appellant stated he is the partner of Nargis Begum and at the date of the hearing the father of an 11 month old child, and claims he provides essential emotional support to them by both listening and his involvement in their day-to-day lives. The child, Arham, was born in June 2022.
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The Judge’s findings are set out [16] of the decision under challenge.
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The Judge notes that the appellant and Ms Begum did not live together, as he lives in London and she lives in Huddersfield, that the child has the surname of her ex-husband, and that her address had been used by her ex-husband in his application for naturalisation.
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The Judge found that on the basis of the material before the decision-maker it was a well reasoned and sustainable decision to refuse the application. The Judge notes, however, that the situation as it was before her at the date of the hearing was very different. [20].
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The Judge was satisfied in relation to the evidence regarding the appellant’s relationship for the reasons set out from [23]. The Judge was not satisfied, however, that either the appellant or his partner have been telling the truth in relation to their evidence as a whole.
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At [34] the Judge writes:
34. Looking at all the evidence in the round, given the disregard and lack of respect both the Appellant and the Sponsor have shown for the laws and the authorities in the United Kingdom, I find I cannot rely on them as being witnesses of the truth. I have not had sight of or heard sufficiently reliable evidence that would indicate that this couple have a genuine and subsisting relationship, whilst I acknowledge there is a child born to them, many parents live apart or people decide to have children whether they are in a relationship or not. I am satisfied that the Appellant has lived in the same home as the Sponsor and her child for a period approaching three months and that he has had photographs taken of him with the child but this does not form a sufficiently reliable base for me to find, on a balance of probabilities, that their relationship is either genuine or subsisting or that he takes responsibility for caring for the child on a daily basis.
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The Judge accepts the appellant has formed a private life in United Kingdom as the father of the British citizen child. The Judge finds the appellant cannot meet the requirements of the Immigration Rules in terms of the partner or parent route, meaning he would need to establish there are exceptional circumstances that would merit a grant of leave to remain in order to continue with his private life in the United Kingdom [35]. The Judge was not, however, satisfied the appellant had provided sufficient evidence to establish that he meets the requirements of Appendix FM EX.1 and so cannot meet the Immigration Rules [36].
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The Judge analyses the situation outside the Rules from [37] including whether there are exceptional circumstances that would enable the scales of proportionality to be weighed in favour of the appellant remaining in the United Kingdom [41].
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The Judge considers the best interests of the child before concluding that the decision does not adversely interfere with the Article 8 rights of the appellant, his partner, or the child, leading to the dismissal of the appeal at [57].
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The appellant sought permission to appeal which was granted by another judge of the First-tier Tribunal on 5 September 2023, the operative part of the grant being in the following terms:
2. The grounds assert that the Judge erred in failing to consider the appellant’s difficulties in return due to his Bihari ethnicity.
3. On the face of the decision, the Judge appears to have failed to consider the appellant’s Bihari ethnicity in the context of return to Bangladesh. This is a point taken by the appellant and considered in the respondent’s review §15-16.
4. It is not clear whether this point in isolation will make a material difference in the context of the other findings. However, it is capable of making a material difference, and so is an arguable error.
Discussion and analysis
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The approach to be adopted to litigation within the Tribunals is now substantially different from that which developed in the mid-2000’s where, following the approach recommended in the Leggatt Report of a less formalised more ‘user-friendly’ judicial body, representatives and parties adopted a very low-key approach to the need to comply with directions and procedural rigour.
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That has now changed as the workload of the Immigration Tribunals becomes greater and more complex, requiring a far more disciplined approach to the conduct of litigation similar to that to be found in the CPR, to maximise the limited resources available.
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The recent decision of the Upper Tribunal in TC (PS compliance – “issue-based” reasoning) Zimbabwe [2023] UKUT 164 (IAC), an appeal heard by both the President of the Upper Tribunal and of the First-tier Tribunal sitting at Field House, demonstrates this. The head note of which reads:.
1. Practice Statement No 1 of 2022 (‘the PS’) emphasises the requirement on the part of both parties in the FTT to identify the issues in dispute and to focus on addressing the evidence and law relevant to those issues in a particularised yet concise manner. This is consistent with one of the main objectives of reform and a modern application of the overriding objective pursuant to rule 2 of the Tribunal Procedure (FTT)(Immigration and Asylum Chamber) Rules 2014. It ensures that there is an efficient and effective hearing, proportionate to the real issues in dispute.
2. A PS-compliant and focussed appeal skeleton argument (‘ASA’) often leads to a more focussed review, and in turn to a focussed and structured FTT decision on the issues in dispute. Reviews are pivotal to reform in the FTT. The PS makes it clear that they must be meaningful and pro-forma or standardised responses will be rejected. They provide the respondent with an important opportunity to review the relevant up to date evidence associated with the principal important controversial issues. It is to be expected that the FTT will be astute to ensure that the parties comply with the mandatory requirements of the PS, including the substantive contents of ASAs and reviews.
3. The identification of ‘the principal important controversial issues’ will lead to the kind of focussed and effective FTT decision required, addressing those matters, and only those matters, which need to be decided and concentrating on the material bearing upon those issues. The procedural architecture in the FTT, including the PS under the reformed process, is specifically designed to enable these principal important controversial issues to be identified and for the parties’ preparation, as well as the hearing to focus upon them.
4. FTT decisions should begin by setting out the issues in dispute. This is clearly the proper approach to appeals under the online reform procedure where at each major stage there is a requirement to condense the parties’ positions in a clear, coherent and concise ‘issues-based’ manner.
5. The need for procedural rigour at every stage of the proceedings applies with equal force when permission to appeal to the UT is sought and in the UT, including a focus on the principal important controversial issues in the appeal and compliance with directions. The requisite clear, coherent and concise ‘issues-based’ approach continues when a judge considers whether to grant permission to appeal. This means that the judge should consider whether a point relied upon within the grounds of appeal was raised for consideration as an issue in the appeal.
6. The reasons for the permission to appeal decision need to focus upon, in a laser-like fashion, those grounds which are arguable and those which are not. To secure procedural rigour in the UT and the efficient and effective use of Tribunal and party time in resolving the issues that are raised, it is necessary for the grant of permission to clearly set the agenda for the litigation for the future.
The starting point is to consider the appellant’s immigration history. This shows the appellant claimed to have entered the United Kingdom illegally by lorry in August 2006. On 28...
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