Upper Tribunal (Immigration and asylum chamber), 2015-12-22, IA/36451/2014 & ors
| Jurisdiction | UK Non-devolved |
| Date | 22 December 2015 |
| Published date | 25 July 2016 |
| Hearing Date | 17 November 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/36451/2014 & ors |
Appeal Number: ia/36451/2014
ia/36451/2014
ia/38235/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/36451/2014
IA/38235/2014
iA/39620/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Sent to parties on |
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On 17 November 2015 |
On 22 December 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE L MURRAY
Between
A C S G
B S G
G B D S G
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Mr S Bellara, Counsel instructed by Western Solicitors
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer
DECISION AND REASONS
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The Appellants are Brazilian nationals. The first and third Appellants are husband and wife and the second Appellant is their daughter. She was born in the UK on 26 November 2007. On 3 May 2014 the first Appellant applied for indefinite leave to remain on the basis of ten years continuous lawful residence in the United Kingdom. That application was refused by the Respondent on 8 September 2014. The Respondent concluded that she had not demonstrated ten years continuous lawful residence. The Respondent considered whether the first Appellant qualified under any of the other provisions of the Immigration Rules. The Respondent concluded that the first Appellant did not benefit from the requirements of EX. 1 as her husband did not meet the eligibility requirements and her daughter was a Brazilian national and had not lived in the UK for more than 7 years at the date of application. The Respondent also came to the conclusion that the first Appellant could not meet the requirements of paragraph 276ADE of the Immigration Rules as she did not meet the length of residence requirements and there were not very significant obstacles to her integration to Brazil.
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The third Appellant applied on 29 July 2014 for leave to remain as a Tier 4 student dependent. The Respondent refused the application on 24 October 2014 as the first Appellant did not have leave as a Points Based System Migrant and therefore the third Appellant could not meet the requirements of paragraph 319C(b) of the Immigration Rules. Further, his application was refused under paragraph 322(1A) of the Immigration Rules as the Respondent considered that he had used deception in his application for further leave to remain.
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The second Appellant applied on 29 July 2014 for leave to remain as a Tier 4 student dependent and her application was refused under paragraph 319 H as the first Appellant did not have leave as a Points Based System Migrant. Consideration was given to section 55 of the Borders, Citizenship and Immigration act 2009 (BCIA) and it was concluded that the interests of immigration control outweighed the possible effect on her that re-establishing family life outside the UK might have.
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The Appellants appealed the Respondent’s decisions and First-tier Judge G A Black dismissed their appeals in a decision promulgated on 3 February 2015. She found that the Appellants did not meet the requirements of the Immigration Rules, found that the third Appellant used false documents in his application and further found that there would be no breach of Article 8 ECHR if the Appellants were returned to Brazil.
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The Appellants sought permission to appeal that decision which was granted by First Tribunal Judge P J M Hollingworth on 16 June 2015. He granted permission on the basis that arguable errors of law had arisen in relation to the application of section 117C; the period of time spent in the UK in the context of the proportionality exercise; the Article 8 exercise outside the Immigration Rules and the application of the standard of proof in relation to the document verification report.
The Grounds
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Ground 1 asserts that the First-tier Tribunal erred in its assessment of Article 8 and the best interests of the child. It is asserted that the First-tier Tribunal failed to consider that the 7 year threshold had been crossed by the date of the appeal hearing and that s117B (6) of the 2002 Act, the Rules and also case law acknowledged the significance in private life terms for a child of that time period in the UK. It is also argued that the First-tier Judge failed to give proper consideration to the significance of the second Appellant’s activities outside of her family and that her preference for speaking English was indicative of ties formed in this country. It is asserted that there was a considerable amount of evidence before the Tribunal indicating how the second Appellant had developed a significant private life and identity outside of her family. It is stated that there is no reference to the case law of E-A Nigeria Article 8 – best interests of child) Nigeria [2011] UKUT 00315) relied on by the second Appellant. It is further alleged that the First-tier Tribunal failed to consider that the second Appellant should not be blamed for the conduct of her parents; wrongly referred to s117C of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”); failed to direct herself and make a finding on whether it would be reasonable for the second Appellant to leave the UK; failed to make a clear finding on what is ultimately is in the best interests of the second Appellant and failed to make it clear whether she was considering Article 8 outside the Rules.
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Ground 2 asserts that the First-tier Tribunal materially erred in her findings at paragraph 38 to 39 of the decision in relation to the use of deception by the third Appellant. The Respondent had produced a document verification report (“DVR”). The grounds of appeal argue that the First-tier Tribunal failed to take into account the detailed submissions in the Appellants’ skeleton argument concerning the shortcomings in the evidence. It is asserted that the DVR did not identify that the official contacted had the status to have access to the information about the third Appellant; did not detail what information was checked to demonstrate that the opinion offered by the official was reliable and it was unclear what documents were involved in correspondence between the Respondent and the official. The allegedly correct details of the third Appellant’s account were not produced to show that any document contained false information. The third Appellant gave evidence that his bank manager had not been contacted by the Respondent.
The Rule 24 Response
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The Respondent’s response asserts that the First-tier Tribunal Judge directed herself appropriately. The Appellants demonstrated no compelling circumstances to be considered outside the Rules. The reasoning to support the finding that there was a false document was clear and sustainable. Although there may have been a misdirection in relation to the standard of proof required in paragraph 38 it only went on the Appellant’s favour. The Judge was entitled to place little weight on the email allegedly from the Appellant’s bank. Following Zoumbas v v Secretary of State for the Home Department [2013] UKSC 74), even if it were in the best interests of the third Appellant to remain in the UK, none of the parties were British, their stay had always been precarious and fraud had been relied on to attempt to obtain leave.
The Hearing
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In submissions Mr Bellara said that it was a striking feature of the appeal that there was no reference to section 55 of the BCIA in the original refusal and that was not considered in the reasons for refusal letter (“RFRL”). The Respondent was fully aware that there was a child and the best interests had to be considered. Counsel asked for the matter to remitted taking into account the family circumstances. That proposal was not taken up by the Judge. The entire assessment was flawed as if one looked to the determination there was no reference to JO and Others (section 55 duty) Nigeria [2014] UKUT 00517 (IAC) and s55. The Judge did not consider that the appeal should be considered outside the Rules and there was no formal assessment outside the Rules. Clearly there had to have been a careful extensive examination of the child’s best interests. It may be argued that there had been a consideration of the best interest of the child but it did not meet the level of care. That was the most serious defect in the determination. The Judge had referred to s117 C of the 2002 Act and that was not the correct section because it related to foreign criminals.
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There was also the issue of deception. The Judge had not given sufficient reasons. What appeared to have happened was that the Appellant produced rebuttal evidence. Although not the most material ground it needed to be assessed carefully and the Respondent’s evidence did not meet the required standard of proof. It was sufficient to render it unsafe. In...
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