Upper Tribunal (Immigration and asylum chamber), 2016-01-04, IA/21323/2014
| Jurisdiction | UK Non-devolved |
| Date | 04 January 2016 |
| Published date | 30 August 2016 |
| Hearing Date | 09 December 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/21323/2014 |
Appeal Number. IA/21323/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21323/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 9 December 2015 |
On 4 January 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MRS SUMAIA AKTER
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant: Mr K Norton, a Home Office Presenting Officer
For the Respondent: Mr M Hussan, a legal representative instructed by Universal Solicitors
DECISION AND REASONS
Introduction
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This is a resumed hearing to consider the Article 8 claim of Mrs Akter (‘the claimant’).
The History of the appeal
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The claimant, a citizen of Bangladesh, applied for an extension of stay in the UK as the partner of a person present and settled in the UK. The application was refused by the Secretary of State for the Home Department (the ‘Secretary of State’) under appendix FM of the Immigration Rules HC395 (as amended) (‘the Immigration Rules’) because the Secretary of State was not satisfied that the claimant was in a subsisting relationship and that she did not meet the financial requirements of appendix FM.
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The claimant appealed to the First-tier Tribunal. In a determination promulgated on 13 May 2015 First Tier Tribunal Judge Quinn (‘the judge’) allowed the claimant’s appeal. The First-tier Tribunal found that the claimant was exempt from the financial requirements under appendix FM because she had transitional protection at the time of her application on 27 February 2014 on the basis that she had been granted leave as a Tier I (post study work) dependant in May 2012. The judge also found that the claimant was in a subsisting genuine relationship and was living with her husband. The judge considered Article 8 of the European Convention on Human Rights (‘the Convention’) outside of the Immigration Rules and found that removal of the claimant would be a disproportionate interference with her rights under the Convention.
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The Secretary of State sought permission to appeal to the Upper Tribunal. On 31 July 2015 First-tier Tribunal Judge Pirotta granted permission to appeal. The grounds of appeal were essentially that the judge erred in finding that the claimant was exempt from the financial requirements of appendix FM because her original application was granted pre 9 July 2012 so that transitional protection applied and that the Article 8 assessment was wholly inadequate.
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The hearing of the appeal was listed on 30 September 2015 before me. Both representatives invited me to adjourn for a further hearing if I found a material error of law. After the hearing I made my decision and provided my reasons in writing. Having found that there were material errors of law in the First-tier Tribunal’s decision I set-aside the decision. I decided to adjourn for a further hearing on the Article 8 issue. I re-made the decision on the transitional protection and failure to meet the financial requirements issues.
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The parties were provided with a copy of my decision the relevant parts of which were that:
“The claimant in this case applied in May 2012 for leave to enter as a dependant of a Tier 1 migrant. On 2 April 2013 she applied for leave to remain as a dependant of a Tier 4 migrant. The current application is different again. It is for leave to remain as a dependant of a person settled in the UK. The leave granted prior to 9 July 2012 is no longer extant. I find therefore that the judge erred in law by finding that the transitional provisions applied to the claimant.
I have considered Appendix FM and the evidential requirements under Appendix FM-SE and Paragraphs E-LTRP 3.1 of the Immigration Rules. They, as relevant to the claimant, provide that the claimant must provide, in the form of specified evidence, a gross income of £24,800 (this includes amounts for 2 children). Paragraph E-LTRP 3.2 provides that the only sources that can be taken into account are income from legal employment or self-employment (there is no evidence in this case of savings).
The claimant has not provided any evidence that she meets this requirement. The claimant’s appeal against the Secretary of State’s decision on the failure to meet the financial requirements is dismissed.
The Secretary of State’s appeal on Article 8 grounds is to be considered at a further hearing.”
Attendance at the hearing on 9th December 2015
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The claimant attended the hearing with her representative Mr Hussan. Mr Norton appeared on behalf of the Secretary of State. Mr Hussan handed up a bundle of documents at the beginning of the hearing. Directions had been given that any evidence must be served 14 days in advance of the hearing. Mr Hussan said that he had received late notice of the hearing and had been waiting for a letter from the claimant. I note that the notice of hearing was issued on 18 November 2015, 3 weeks before the date of the hearing. I reluctantly admitted the bundle of documents into evidence and allowed a brief adjournment to enable Mr Norton to consider the bundle.
Summary of the Submissions
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Mr Norton submitted that the statutory provisions in s117B of the Nationality and Immigration Act 2002 (the ‘2002 Act’) must be taken into consideration. Whilst the Immigration Rules are not a complete code what remains outside of them is narrow. It has to be shown that it would not be reasonable to expect the children or the claimant’s partner to leave the UK or in other words that there would be insurmountable obstacles to their integration in Bangladesh. The children are young and could integrate easily. The claimant’s husband is from Bangladesh. He submitted that unless the individual circumstances of the case raised issues not already considered under the Immigration Rules, such as a life threatening health condition, then the fact that the claimant cannot meet the requirements of the Immigration Rules must factor into any free standing Article 8 assessment. There was nothing in this case that had been identified as a factor to consider in addition to the factors considered under the Immigration Rules.
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In this case Mr Norton submitted the claimant does not fulfil the requirements of appendix FM and that it essentially comes down to a matter of choice. The claimant and her partner wish to remain together in the UK with their children but there is nothing to prevent them from living together in Bangladesh. The fact that the claimant’s partner is now a British citizen as are her children is only relevant if, as a consequence of the claimant returning to Bangladesh, they would be forced to leave the UK. Article 8 does not provide that Member states must accede to a choice of domicile. The best interests of the children in this case are to be with their parents. It is open to the family to return to Bangladesh as a family unit.
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Mr Norton, in response to the claimant’s citation of the case of VW (Uganda) (‘VW’) [2009] EWCA Civ 5 referred to paragraph 46 of the decision submitting that it is the individual circumstances that must be considered. The VW case relied on is different to the instant case. In VW the partner had no connection to Uganda where VW was from. It was the lack of connection that was unreasonable in that case. In this case the husband is a British citizen but also is a citizen of Bangladesh.
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Mr Hussan referred me to pages 12-17 of the bundle provided at the beginning of the hearing. He submitted that these pages showed that the claimant’s children were attending pre-school. He referred me to page 4 of the bundle which was a letter from the claimant’s husband’s employer to say that he was now working part time. He referred me to paragraphs 24-55 of the grounds of appeal which sets out the grounds in relation to the welfare of the children.
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Mr Hussan took me to paragraphs 30 and 37 of the First-tier Tribunal’s decision. He submitted that the judge took into account section 117B. He submitted that s55 does not support removal of the claimant. The claimant’s two children deserve to grow up in the UK. If the claimant were removed it would not be in the best interests of the children. It would be disproportionate to remove her. In relation to VW Mr Hussan submitted that the facts in that case were similar and in that case the judge allowed the appeal so the appeal should also be allowed in this case.
Legislative Provisions
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