Upper Tribunal (Immigration and asylum chamber), 2015-05-15, IA/15233/2014
| Jurisdiction | UK Non-devolved |
| Date | 15 May 2015 |
| Published date | 13 July 2015 |
| Hearing Date | 19 February 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/15233/2014 |
Appeal Number: IA/15233/2014
IAC-AH-KEW-V2
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15233/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Determination Promulgated |
|
On 19th February 2015 |
On 15th May 2015 |
|
|
|
Before
DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS
Between
MS AYSHA BEGUM TAFADER
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr S Khan, Counsel
For the Respondent: Miss K Pal, Home Office Presenting Officer
DECISION AND REASONS
-
The Appellant is a citizen of Bangladesh born on 28th November 1959. The Appellant has an extensive immigration history culminating on 12th December 2013 with her being issued with an IS151A notifying her of her immigration status as an overstayer and her liability to detention and removal from the UK. By letter dated 24th November 2013 along with appropriate attachments and photographs the Appellant’s legal representatives asked that the Appellant’s case be considered under the European Convention of Human Rights. That appeal was dismissed by Notice of Refusal of the Secretary of State dated 6th March 2014.
-
The Appellant appealed and the appeal came before Judge R Callender Smith sitting at Taylor House on 28th October 2014. In a determination promulgated on 12th November 2014 the Appellant’s appeal was dismissed both under the Immigration Rules and on human rights grounds.
-
On 21st November 2014 the Appellant lodged Grounds of Appeal to the Upper Tribunal. On 2nd January 2015 Judge of the First-tier Tribunal Pooler granted permission to appeal. Judge Pooler noted that the application contended that by failing to make findings on family life established between the Appellant and two of her daughters or on whether the Appellant had retained any ties to Bangladesh that the judge had erred in law. He noted that the judge had dismissed the appeal in respect of the Immigration Rules but had arguably failed to direct himself by reference to their terms particularly those at paragraph 276ADE and to make findings of fact on relevant matters including whether the Appellant had retained ties to Bangladesh. Judge Pooler noted that Judge Callender Smith had directed himself by reference to the five-step approach set out in Razgar v SSHD [2004] UKHL 27 and had accepted that the Appellant’s presence had been helpful for her daughters and their children. He noted that the First-tier Tribunal Judge had not made a specific finding as to whether the Appellant had proved the existence of family life but that he clearly accepted that Article 8 was engaged because he went on to consider the proportionality of removal. In any event he considered it made little difference whether her relationships with her daughters and grandchildren were considered as aspects of private or family life and that the judge had concluded that the decision to remove the Appellants was proportionate. Whilst therefore considering it less likely that the ground in respect of the claimed family life disclosed a material error of law since permission was to be granted on all grounds he considered that it may be argued.
-
On 9th January 2015 the Secretary of State responded to the Grounds of Appeal under Rule 24 in some detail. The Rule 24 response stated that it was for the judge having concluded that Article 8 was engaged to carry out the balancing exercise and that the only significant relationship at issue was that the Appellant had with her daughter. It was contended therein that the Appellant clearly could not meet the requirements of paragraph 276ADE of the Immigration Rules and that there was no adequate evidence to demonstrate that, to the balance of probabilities, the Appellant had lost all ties to her home country. It was pointed out that the Appellant retained a land share and accommodation and had a brother remaining in Bangladesh. The Rule 24 response contended that it was clear that the Appellant who lived full-time in Bangladesh until she came to the UK at the age of 45 and who was not credible in her assertion that she did not come to settle and intended to return was not likely to accept that she retained ties to her home country.
-
It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by her instructed Counsel Mr Khan. The Secretary of State appears by her Home Office Presenting Officer Miss Pal.
Submissions/Discussion
-
Mr Khan contends that the First-tier Tribunal Judge made findings in relation to one of the Appellant’s daughters who was a witness but made no findings about her other two daughters who were also witnesses. He refers me to the authority of AK (Turkey) [2004] UKIAT 00230 where the Tribunal reiterated at paragraph 12 and set out “the necessity to make proper findings of fact in relation to all the oral evidence and not merely that given by the Appellant ...” He submits that one of the other daughters not mentioned provides most of the subsistence for the Appellant and that it is important to note that there is a family life and a level of dependency. He submits that the judge has erred in not giving due and proper consideration to these factors.
-
Secondly he considers that there has been no finding made whatsoever as to whether during the nine years that the Appellant has been in the UK she has retained social, cultural or family ties in Bangladesh and therefore there has not been a proper consideration of the Appellant’s rights to private life or matters set out in paragraph 276ADE of the Immigration Rules. He reminds me that the Appellant claims that she no longer has any ties with Bangladesh and submits that if this could be demonstrated then the Appellant may have come within the remit of the Immigration Rules. She submits that the Appellant’s husband has passed away and whilst previously they held land she no longer knows the situation regarding this land and submits that it is possible that the Appellant’s circumstances have changed. Mr Khan submits that the correct approach is to remit the matter back to the First-tier Tribunal for reconsideration.
-
In response Miss Pal acknowledges that whilst the Appellant’s daughters did not give evidence at the First Tribunal she submits that even if the evidence of the daughter is taken into account that would not make any difference to the outcome overall of the appeal. She takes me to the witness statement of the said daughter Mrs Farhena Siddiqua at paragraphs 7 onwards in which Mrs Siddiqua contends that it is now the Appellant’s daughter’s responsibilities to look after her. Miss Pal points out there is nothing in the witness statement to say what level of care is required for the Appellant and submits that if she is so weak at the age of 54 then she hardly would be in a position to look after family members and submits that there is no reason whatsoever why the Appellant should remain in this country.
-
So far as the challenge under paragraph 276ADE of the Grounds of Appeal she submits that the judge has addressed issues of family and private life at paragraphs 30 to 41 of his determination especially at paragraphs 31 and 32 and made a finding therein that he was not satisfied there was nowhere suitable for the Appellant to return to and no proof that she had ever lost control of the property in which she lived when she was there even though her husband was no longer alive. She asked me to find no material errors of law and to dismiss the appeal.
The Law
-
Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
-
It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high...
To continue reading
Request your trial