Upper Tribunal (Immigration and asylum chamber), 2018-05-02, IA/23453/2015
| Jurisdiction | UK Non-devolved |
| Date | 02 May 2018 |
| Published date | 22 May 2018 |
| Hearing Date | 09 April 2018 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/23453/2015 |
Appeal number: IA/23453/ 2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23453/2015
THE IMMIGRATION ACTS
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Heard at Field House 9 April 2018 |
Decision & Reasons Promulgated On 2 May 2018 |
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Before
DEPUTY JUDGE OF THE UPPER TRIBUNAL CHANA
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Appellant
and
MR SHOFIUL ALAM PARAZ
(anonymity direction not made)
Respondent
Representation:
For the appellant: Mr T Melvin, Senior Presenting Officer
For the respondent: Mr I Khan of Counsel
DECISION AND REASONS
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The appellant in this appeal is the Secretary of State for the Home Department. She appeals against the decision of First-tier Tribunal Judge Rayner promulgated on 2 November 2016 allowing the appellant’s appeal under Article 8 of the European Convention on Human Rights. However, for ease of reference, I will continue to refer to the Secretary of State as the respondent and to Mr Paraz as the appellant which were the designations they had before the First-tier Tribunal.
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Permission to appeal to the Secretary of State was granted by the Upper Tribunal. The appeal came before me on 19 June 2017 for an error of law hearing and I found that there is material error of law in the decision of the First-tier Tribunal Judge and I set it aside. I directed that the appeal be placed before the Upper Tribunal at the next available hearing date, to here submissions to determine whether requiring the appellant to return to Bangladesh to make an entry clearance applications is unreasonable under the circumstances of the appellant and his daughter’s circumstances taking into account the jurisprudence on these issues.
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The appeal came before me on 18 August 2017 and it was agreed between the parties that the matter be placed before the Secretary of State for her to revisit her decision in light of the new matter, which was the birth of the appellant’s child who is a British citizen and therefore a qualifying child under the age of 18 pursuant to section 117D (1) of the 2002 Act.
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At the hearing on 20 October 2017, the senior presenting officer stated that she had still not made a decision. It was further agreed by the representative of the Secretary of State that she will make a decision before 1 December 2017 and there was no objection from the appellant’s representative.
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I directed that the Secretary of State make a decision before 1 December 2017 or the appeal be listed for a hearing in the Upper Tribunal.
The renewed hearing
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At the renewed hearing on 9 April 2018, the Secretary of State still had not made a decision. Mr Melvin suggested that the appellant make a fresh application because given the passage of time, the subsistence of the appellant’s marriage was now an issue.
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The respondent had not taken issue with the subsistence of the marriage in her reasons for refusal letter. I found it to be procedurally unfair for the respondent to raise an issue for the first time at the hearing before me. It is imperative that the appellant knows the case against him.
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There is no evidence before me to suggest that the appellant and his wife are not in a subsisting marriage. The appellant’s wife is present and settled in the United Kingdom having come from Bangladesh to the United Kingdom as a student. They both attended the hearing before me. They married under Islamic law on the on 5 February 2014 and had a civil marriage ceremony on 11 October 2014. The appellant’s daughter was born on 24 September 2015 and is a British citizen.
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The respondent was aware when she made her decision that the appellant’s wife was pregnant because she refers to her pregnancy in her reasons for refusal letter. The appellant’s appeal was always made on the bases of his family life with his wife. I also find like the First-tier Tribunal Judge did that the birth of the appellant’s child is new evidence rather than a new matter. Mr Khan stated at the hearing that the only issue in this appeal is Article 8 and accepts that the appellant does not meet the requirements of the immigration rules.
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As I set aside the decision of the First-tier Tribunal, I remake the decision pursuant to Article 8 of the European Convention on Human Rights as the appellant has accepted that he cannot meet the requirements of the immigration rules. The issue for me now to decide is whether requiring the appellant to leave the country would interfere with his, his wife and British child’s rights under Article 8 of the European Convention on Human Rights.
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In determining whether the appellant’s removal from the United Kingdom would constitute a disproportionate interference with her right to respect for private and family life under Article 8, I have considered each of the following issues, as laid down at paragraph 17 of the speech of Lord Bingham of Cornhill in R v. Razgar:
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for her private or family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
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If so, is such interference in accordance with the law?
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If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
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If so, is such interference proportionate to the legitimate public end sought to be achieved?
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The first four questions in Razgar are answered in the affirmative. The only question remains whether it is proportionate to require the appellant to leave the United Kingdom taking into account all his circumstances.
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The appellant has been in this country unlawfully for 14 years. Therefore, whatever private and family life he has established in this country has been done at the time when his immigration status was precarious and unlawful. Section 117B of the 2002 Act makes clear that a private life established whilst the applicant’s immigration status is precarious is not worthy of respect. I therefore find that removing the appellant would not interfere with his right to a private life.
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The appellant’s child is a British citizen. Section 117B (6) of the 2002 Act states “in the case of a person who is not liable to deportation, the public interest does not require the person’s removal where “the person has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom. A Qualifying child includes a person who is under the age of 18 and who is a British citizen.
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In respect of the appellant’s family life with his wife I take into account the case of WJ (China)) v Secretary of State for the Home Department [2011] EWCA Civ 183 a Chinese failed asylum seeker submitted an application for leave to remain on the basis of a relationship she had entered into with a British citizen. The Court of Appeal said that, given the Claimant’s prolonged, persistent and dubious history of deception in evading the United Kingdom’s immigration controls, it was practically inconceivable that it could be found not to be proportionate to remove her.
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The appellant cannot expect, by presenting the Home Office with a fait accompli by marrying a British citizen to escape the ordinary consequence of his appalling immigration history which is what this appellant is seeking to do. I therefore find that the respondent’s decision in respect of the...
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