Upper Tribunal (Immigration and asylum chamber), 2024-07-31, UI-2023-004177 & UI-2023-004178

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2023-004177
UI-2023-004178

First-tier Tribunal Nos: HU/14448/2019
HU/14455/2019

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 31 July 2024


Before

UPPER TRIBUNAL JUDGE PERKINS
DEPUTY UPPER TRIBUNAL JUDGE WILDING

Between

ASIF UDDIN AHMED
&
AYESHA TAMANNA ZEBIN
(no anonymity order made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellants: Mr P Saini, Counsel, instructed by Direct Public Access
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

Heard at Field House on 19 December 2023

DECISION AND REASONS
1. The appellants are citizens of Bangladesh and are married to each other. The second appellant is the first appellant’s wife. They appeal a decision of the First-tier Tribunal promulgated on 31 July 2023 dismissing their appeals against the decision of the respondent on 9 August 2019 refusing them indefinite leave to remain in the United Kingdom, particularly with reference to paragraph 322 of HC 395 and Article 8 of the European Convention on Human Rights.
Background
2. Although we have the benefit of a full skeleton argument prepared by Mr Saini as well as detailed grounds and his submissions, we begin by considering carefully the First-tier Tribunal’s Decision and Reasons. This shows that the first appellant arrived in the United Kingdom in October 2009 with leave as a student and his wife, the second appellant, joined him in August 2010 with leave as his dependant. The first appellant applied to extend his leave but was unsuccessful so that his appeal rights were exhausted on 13 February 2017. He applied out of time on 16 February 2017 for further leave which was refused and the decision maintained on review in August 2018. He then applied for a visa based on “exceptional circumstances” saying that he had lived in the United Kingdom for ten years with his family and varied this application for indefinite leave to remain on 8 March 2019. The application was refused on 9 August 2019. It has previously been appealed but there was error and the decision was set aside and ordered to be reheard and it is the rehearing of that decision that we have to consider now.
3. The judge summarised the appellants’ case. They are nationals of Bangladesh but have children aged 7 years and 4 years who were born in the United Kingdom. The eldest child is attending school in the United Kingdom and speaks English as his first language at school. The younger child has some difficulties with eczema. The point urged before the First-tier Tribunal is that the eldest child had been living in the United Kingdom for over seven years and that was a good reason to allow the whole family to remain, but alternatively there were insurmountable obstacles to returning to Bangladesh.
4. Mr Saini, who appeared before us, appeared before the First-tier Tribunal. The judge then dealt with Mr Saini’s skeleton argument, where it was asserted that the appellants had been ill-treated in a way that amounted to procedural unfairness. The point was that the unlawful action of the respondent reduced the weight to be given to the public interest in removal. It was described as an historic injustice.
5. The judge noted that it was the respondent’s case that the first appellant was not eligible under the discretionary leave policy and was not thought to have sufficiently compelling circumstances outside the Rules. His appeal rights were exhausted in February 2017. The implication is that it was not considered the respondent’s fault that he chose to remain in the United Kingdom.
6. The respondent maintained that the appellants were not eligible to apply for leave with reference to Appendix FM because they had never had leave to remain in the United Kingdom and the respondent was concerned only with “private life”. It was not an asylum claim and it was the respondent’s case there was nothing to stop them going back. The respondent noted that there were children involved but found there would not be severe impediment on return to Bangladesh. Without trivialising the younger child’s eczema and it is said that can be treated in Bangladesh.
7. When the case came before the First-tier Tribunal, the Secretary of State chose not to attend. In the event, only the first appellant gave evidence.
8. He said that he had applied for a job at the beginning of 2017. A certificate of sponsorship was assigned dated 31 January 2017 and the start date of the employment was given as 20 February 2017 and the job was expected to end on 19 February 2020. The job was described as “junior management...