Upper Tribunal (Immigration and asylum chamber), 2015-05-28, IA/30411/2014 & IA/30412/2014
| Jurisdiction | UK Non-devolved |
| Date | 28 May 2015 |
| Published date | 03 August 2015 |
| Hearing Date | 20 May 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/30411/2014 & IA/30412/2014 |
Appeal Number: IA/30411/2014
IA/30412/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30411/2014
IA/30412/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 20 May 2015 |
On 28 May 2015 |
|
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Before
UPPER TRIBUNAL JUDGE CANAVAN
UPPER TRIBUNAL JUDGE LINDSLEY
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
ASHABEN SUNILKUMAR BRAHMBHATTI
First Respondent
ADITI SUNILKUMAR BRAHMBHATTI
Second Respondent
(ANONYMITY ORDER NOT MADE)
Representation:
For the Appellant: Mr E. Tufan, Senior Home Office Presenting Officer
For the Respondent: Mr R. Pennington-Benton, Counsel instructed by Farani Javid Taylor
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. We find that no particular issues arise on the facts of this case that give rise to the need for a direction. For this reason no anonymity direction is made.
DECISION AND REASONS
Introduction
1. For the sake of convenience this decision will refer to the parties as they were before the First-tier Tribunal albeit that the Secretary of State is technically the appellant in this particular appeal. The respondent was granted permission to appeal against the decision of First-tier Tribunal Judge Suffield-Thompson (hereafter the judge), which was promulgated on 02 January 2015. The judge allowed the appellants’ appeal against the respondent’s decision to refuse to grant them leave to remain on human rights grounds and to remove them from the UK under section 10 of the Immigration Act 1999.
2. The first appellant is a citizen of India whose date of birth is 29 November 1974. The second appellant is her dependent daughter. She is also a citizen of India whose date of birth is 16 January 1997. The first appellant entered the UK on 04 October 2009 with entry clearance as a student. Her husband and the second appellant entered the UK on 18 September 2010 with entry clearance as her dependents. The first appellant subsequently separated from her husband who she believes has returned to India. She was granted further leave to remain as a student until 25 August 2014. On 02 February 2012 the respondent sought to curtail the appellants’ leave to remain. However, at the hearing Mr Tufan confirmed that his records showed that the letter was returned. Whether the appellant’s leave to remain as a student was properly curtailed and when she came to know about the decision is not a matter that is necessary for this Tribunal to determine for the purpose of this appeal. Certainly by 02 August 2013 the appellant seemed to be aware of her precarious status because an application for leave to remain was made on human rights grounds. The application was refused in a decision dated 23 July 2014 on the ground that they did not meet the requirements of the immigration rules and there were no exceptional circumstances that justified granting leave to remain outside the rules.
3. The First-tier Tribunal heard the appeals on 22 December 2014. The judge set out the appellants’ immigration history in full as well as the details of their private and family lives. The judge concluded that the appellants did not meet the requirements of the immigration rules but then went on to consider whether there were matters that were not adequately covered by the rules that could nevertheless properly engage their right to private and family life under Article 8 of the European Convention on Human Rights (ECHR) outside the immigration rules. The judge made reference to the five-stage test in Razgar v SSHD [2004] UKHL 27 and concluded that the appellants had formed a private and family life in the UK and that removal would interfere with their rights in a sufficiently grave way as to engage the operation of Article 8. The judge then went on to consider factors that might be relevant to the proportionality of removal and made findings relating to the best interests of the second appellant, who was at that stage still a minor, with reference to the Court of Appeal decision in EV (Philippines) v SSHD [2014] EWCA Civ 874. The judge then concluded that removal would be disproportionate in all the circumstances of the case.
4. The grounds of appeal argue that the judge failed to attach little weight to the appellants’ private lives as required by sections 117B(4) and 117B(5) of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”). The judge failed to take into account the fact that the second appellant was not a “qualifying child” as defined in section 117D NIAA 2002. The grounds went on to argue that the judge failed to apply the principles set out in EV (Philippines) properly and failed to have regard to the Supreme Court decision in Zoumbas v SSHD [2013] UKSC 74. The judge erred in failing to find that, as a non-British child, it was in the child’s best interests to return to India with her mother. Permission to appeal was granted on the basis that it was arguable that the judge may have erred in the application of section 117 and that the judge may have given insufficient weight to the requirements contained in section 117B(4)-(5) and the case law cited in the grounds.
5. The matter came before us to determine whether the First-tier Tribunal erred in law.
Submissions
6. Mr Tufan relied on the grounds of appeal. He submitted that having concluded that the appellants failed to meet the requirements of the immigration rules the judge then failed to give adequate reasons for going on to consider Article 8 outside the immigration rules. When asked for submissions in relation to whether the judge had applied section 117B(4)-(5) NIAA 2002 properly he said that he relied on what was said in the grounds. He questioned whether the judge could have reasonably arrived at the decision on the facts but when asked whether the respondent now wanted to put forward a perversity challenge Mr Tufan merely said that the judge had “not made a good job of it”.
7. In response Mr Pennington-Benton submitted that the grounds amounted to little more than a complaint about the findings of fact made by the judge. He said that it was a fact sensitive assessment. No doubt other judges might have come to a different conclusion on the same facts but that did not amount to an error of law. The judge had heard the witnesses and formed an opinion as to how integrated they were in the UK. He took us to various points in the decision where he said the judge clearly had the immigration history and precarious nature of their position in the UK in mind when coming to the decision. He submitted that section 117B only required a judge to consider whether little weight “should” be given to a private life established while a person is in the UK unlawfully or if their immigration status is precarious. The wording did not say that a judge “must” give little weight to those matters. It was compatible with a judge’s duties under section 6 of the Human Rights Act 1998 to take it into consideration but it could not be a mandatory requirement. He submitted that whether the leave was properly curtailed or not the judge had dealt with the issue of the appellants’ precarious position in the UK in several places in the decision. The grounds of appeal did not allege that the judge did not consider the issue but merely complained that the judge did not give the weight that the respondent wanted. He submitted that did not amount to an error of law and asked us to uphold the decision.
Conclusions
8. We have considered the First-tier decision, the grounds of appeal and submissions in full and conclude that the decision did not involve the making of an error of law for the following reasons.
9. Although the judge did not make specific reference to the reasons for going on to assess the case outside the immigration rules it is clear from what is said in paragraph 54 of the decision that the judge took into account all the circumstances of the case as well as the best interests of the child before coming to the conclusion that there was sufficient reason to consider the case outside the immigration rules. We are satisfied that this was sufficient to move on to the second stage assessment outside the immigration rules. ...
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