Upper Tribunal (Immigration and asylum chamber), 2014-12-12, IA/48361/2013 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 12 December 2014 |
| Published date | 20 March 2015 |
| Hearing Date | 10 December 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/48361/2013 & Ors. |
Appeal Numbers: IA/48361/2013
IA/48372/2013
& IA/48383/2013
Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/48361/2013
IA/48372/2013
& IA/48383/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 10 December 2014 |
On 12 December 2014 |
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Before
Deputy Upper Tribunal Judge Pickup
Between
Secretary of State for the Home Department
[No anonymity direction made]
Appellant
and
Pradumna Raj Sharma
Rahana Thapaliya Sharma
Sunniva Sharma
Claimants
Representation:
For the claimants: Mr A Hussain, instructed by Cubism Law
For the appellant: Mr S Whitwell, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
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This is the appeal of the Secretary of State against the determination of First-tier Tribunal Judge Hollingworth promulgated 2.10.14, allowing the claimants’ appeals against the decisions of the Secretary of State, dated 6.11.13, to refuse their applications to vary leave to remain as a Tier 2 (General) migrant and dependant wife and child, and to remove them from the UK by way of directions under section 47 of the Immigration Asylum and Nationality Act 2006. The Judge heard the appeal on 24.6.14 and 9.9.14.
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First-tier Tribunal Judge Froom granted permission to appeal on 14.11.14.
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Thus the matter came before me on 10.12.14 as an appeal in the Upper Tribunal.
Error of Law
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In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the determination of Judge Hollingworth should be set aside.
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In granting permission to appeal, Judge Froom found it arguable that the judge erred by misdirecting himself in law in the manner described in the grounds seeking permission to appeal, all of which may be argued. In particular, it is arguable the judge failed to recognise the limited pull of private life factors in the case of appellants who were in the UK for temporary purposes, as explained in Patel and Nasim.
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I was presented at the hearing with a plethora of relevant case law:
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Nasim and others (Article 8) [2014] UKUT 00025 (IAC);
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E-A (Article 8 –best interests of child) Nigeria [2011] UKUT 315 (IAC);
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Zoumbas v SSHD [2013] UKSC 74;
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EV (Philippines) & Ors v SSHD [2014] EWCA Civ 874;
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R (on the application of Esther Ebun Oludoyi & Ors) v SSHD (Article 8 – MM (Lebanon) and Nagre IJR [2014] UKUT 539 (IAC);
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JO and Others (section 55 duty) Nigeria [2014] UKUT 00517 (IAC).
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I have considered all of these case authorities and taken them into account, together with the skeleton argument of Mr Hussain, dated 9.9.14, and the submissions of the representatives before me.
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For the reasons set out herein, I found that the decision of the First-tier Tribunal was vitiated by errors such that it could not stand and had to be set aside and remade. Having made that decision at the hearing before me I then heard further submissions from the representatives of the appellant and the claimants. Mr Hussain did not seek to adduce any further evidence. At the conclusion of the hearing I reserved my decision on the remaking of the appeal, which I now give.
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As the decision in the case, and indeed the conclusion of the hearing, did not take place until September and October 2014, the First-tier Tribunal was required to take into account section 117B of the 2002 Act.
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The relevant background to the appeal can be summarised as follows. The first claimant entered the UK in 2005 as a student. Leave was subsequently extended on a number of occasions until 14.10.13. Two days before the expiry of leave the first claimant applied for further leave to remain as a Tier 2 (General) Migrant, with his wife and child applying as his dependants.
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The application was refused on 6.11.13 because, first, the first claimant failed to demonstrate and provide evidence that he had taken and completed a UK recognised degree qualification, or equivalent, as required by paragraph 245HD(d) of the Immigration Rules. Second, he failed to qualify for the necessary 30 points under Appendix A because the educational sponsor providing the Certificate of Sponsorship (COS) had not performed an appropriate resident labour market test as defined in Appendix A and the Codes of Practice under Appendix J.
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The grounds of appeal to the First-tier Tribunal raised only in general terms that the decision was not in accordance with the Immigration Rules; unreasonable; and contrary to the claimants’ human rights.
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At the First-tier Tribunal hearing it became clear that the first claimant was still studying, although he worked for a brief period of time. He claimed that he had been badly advised by legal advisers in making a Tier 2 application. However, he had made no formal complaint.
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The First-tier Tribunal Judge does not deal with the Tier 2 part of the application and reached no conclusion about the same. At §13 it appears that counsel for the claimants conceded that they did not meet the Rules. I can only assume that means both those Rules in relation to the Tier 2 application and those in relation to private and family life contained in paragraph 276ADE and Appendix FM. The judge’s attention was drawn to section 177B.
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In considering the decision as a whole, I find that the judge has conflated the family and private life issues in the case, and in the process failed to take sufficient account of the public interest in the article 8 private and family life assessment, having decided at §19, following Gulshan, that there were good grounds for going on to consider article 8 outside the Rules on the basis that the decision was unjustifiably harsh.
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Even before embarking on the article 8 assessment, the judge had At §17 the judge purported to allow the appeal on the basis that the Secretary of State had not considered section 55 of the Borders Citizenship and Immigration Act 2009 in respect of the two children of the family, then aged 5 (the third claimant) and 3, but not a claimant. It is not necessary for the judge to make such a finding and allow the appeal on that basis, as he can apply the correct law and consider the best interests of the children within the parameters of the appeal hearing before him, as he purports to have done at §27. If the judge was going to allow the appeal on the basis that the decision of the Secretary of State was not in accordance with the law, then the correct approach should have been to allow the appeal on the limited basis so that it remained for the Secretary of State to make a decision which is in accordance with the law, effectively sending the decision back to the Secretary of State.
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In JO the President held that the duty imposed by section 55 required the decision maker to be properly informed of the position of a child affected by the discharge of an immigration act function. “Thus equipped, the decision maker must conduct a careful examination of all relevant information and factors.” This and “a scrupulous analysis are elementary prerequisites to the inter-related tasks of identifying the child’s best interests and then balancing them with other material considerations.”
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Whilst the judge was right to consider as a primary factor the best interests of the children, the way in which this was done in the decision amounted to an error of law. In deciding at §17, before embarking on the article 8 assessment, that the appeals should be allowed on the basis of the failure of the Secretary of State to consider section 55, the First-tier Tribunal pre-judged the Razgar 5 step assessment and in particular the proportionality balancing exercise. Nothing was being balanced against those best interests and no account was taken of the public interest before the decision was made.
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The judge then went on from §18 to allow the appeals on what he described as a further and separate basis, namely article 8 ECHR, the consideration of which followed from §22 onwards.
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At §25 the judge found the first four criteria of Razgar were met, without explaining in what way the removal decision created such interference with either family or private life so as to engage article 8 ECHR. The judge appears to have concentrated on finding that there was family life in the UK, which was not in issue in the appeal. The claimants would have been removed together to Nepal, where they would be able to continue their family life.
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In relation to proportionality, section 117B had been drawn to the judge’s attention and at §24 he stated that he had applied the criteria, Given the contents of §26 it may be that the judge had section 117B in mind at that state.
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At §27 the judge returned to section 55 and found that it would be “wholly undesirable”...
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