Upper Tribunal (Immigration and asylum chamber), 2018-06-29, HU/08903/2015 & HU/13262/2015
| Jurisdiction | UK Non-devolved |
| Date | 29 June 2018 |
| Published date | 17 July 2018 |
| Hearing Date | 30 May 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/08903/2015 & HU/13262/2015 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/08903/2015
HU/13262/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 30 May 2018 |
On 29 June 2018 |
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Before
THE HON. LORD UIST
UPPER TRIBUNAL JUDGE DAWSON
Between
(1) rifat ara arju
(2) nusrat jahan ikbal esha
(ANONYMITY DIRECTION not made)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr R Singer, instructed by Paul John & Co Solicitors
For the Respondent: Mr E Tufan, Senior Presenting Officer
DECISION AND REASONS
Introduction
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These appellants (mother and daughter) are nationals of Bangladesh where they were born respectively on 25 March 1973 and 4 August 1997. They have been granted permission to appeal the decision of First-tier Tribunal Judge Nicholls. For reasons given in his decision dated 24 April 2017 he dismissed their appeals against the decisions of the Entry Clearance Officer (ECO) dated 18 September 2015 refusing their applications to join the sponsor (the first appellant’s husband and second appellant’s father) in the UK. As to the first appellant, the decision under appeal was a refusal for entry clearance as a partner under Appendix FM of the Immigration Rules. This was on the basis that the first appellant had not passed an English language test, and furthermore, the ECO did not consider the application raised any exceptional circumstances with respect to family life with reference to Article 8 that warranted a grant of leave outside the rules.
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As to the second appellant, the refusal was with reference to paragraph 297 of the Immigration Rules on the basis that although it was acknowledged the second appellant had maintained family life with both parents during the previous eleven years following her sponsoring father’s move to the United Kingdom on 10 January 2004, the ECO was not satisfied he had had sole responsibility for the second appellant’s upbringing, something for which the first appellant had taken main responsibility in Bangladesh. Furthermore, the ECO considered the second appellant had not provided serious and/or compelling family or other reasons. There was no evidence that her emotional development was being neglected or that she was developing other than normally having lived with her mother for most of her upbringing. The ECO addressed Article 8 and concluded in respect of the second appellant also that the circumstances did not warrant a grant of leave outside the Rules.
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The applications were made online on 14 July 2015.
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In respect of the burden and standard of proof, Judge Nicholls explained at [3] of his decision:
“In human rights appeals arising from immigration decisions it is for the Appellant to show that there has been or will or may be an interference with his or her human rights. The relevant date for consideration is the date of hearing of the appeal. The standard of proof is on a balance of probabilities and if that interference is established, and the relevant Article permits, it is then for the Respondent to show that the interference was justified. In assessing public interest considerations under article 8 of the ECHR I must apply the provisions of Part 5A of the Nationality, Immigration and Asylum Act 2002, which, where relevant are considered in more detail below.”
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He noted in his findings that it was conceded by counsel for the appellants that the first appellant could not meet the requirements of the Immigration Rules because she had not passed the specified English language test. He went on to conclude at [12]:
“… I find, therefore, that the first appellant does not meet the requirements of Appendix FM in that respect. With regards to the second Appellant, who is still treated as a child for these purposes, it was not argued that her father in the UK had had sole responsibility for her upbringing, although counsel did argue that the ECO in refusing her application had not “seriously considered” whether there were any serious or compelling family or other reasons why her exclusion from the UK would be undesirable. In that respect, counsel has not given sufficient weight to the second bullet point on page 2 of the ECO’s decision where it is noted that there was no evidence of any such factors. Accordingly, I do not accept that submission.”
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The judge also heard argument that the ECO’s decision was unlawful because there was no consideration of the best interests of the child as specified in section 55 of the Borders, Citizenship and Immigration Act 2009. He readily acknowledged that the decision did not mention section 55 or the best interests, but he considered, taken as whole, the position of the second appellant had been looked at. To illustrate this the judge noted at [13]:
“…It does, for instance, consider whether there was evidence of the second Appellant’s “emotional development” being neglected. The language is not particularly helpful but that is one of the factors which should be considered when assessing the child’s best interests. In addition, I note that the entry clearance manager in a review dated 6 May 2016 specifically mentioned the principles under section 55 and assessed those factors in terms of “exceptional circumstances”.”
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He then went on to carry out the best interests exercise himself in the following terms at [14]:
“In this appeal I must consider the best interests of the second Appellant, nominally still a child, as a primary consideration. She was 17 years and 11 months old at the date of application, which is a fact I must bear in mind. It is a general principle that, wherever possible, children should be brought up by both parents in a stable and secure environment. Counsel argued that those best interests were to be brought up in the UK. The logical conclusion of such an argument is that every child in the world should be brought up in the UK if at all possible, which is an absurd argument. The second Appellant has, according to the evidence, always lived with her mother and has had the benefit of both regular contact and visits from her father. That was a family life which the first Appellant and the sponsor chose to adopt in 2004 and which they have chosen to continue ever since, until this application was submitted in July 2015, some 11 years later. During that time, the majority of the “bringing up” of the second Appellant as a child has been completed.”
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By way of conclusion of his consideration of the case under the Rules, at [15] the judge recorded:
“Because it is accepted that the second Appellant has not been the sole responsibility of the UK sponsor, her father, I find that her application did not meet the requirements of paragraph 297(1)(e). With regard to sub-paragraph (f) of paragraph 297, I find that there is no evidence before me of serious and compelling family or other reasons why entry clearance to the UK should be granted. I agree with the ECO in that respect. The compelling circumstances identified in his submissions by counsel for the Appellant do not demonstrate those reasons. I find that neither of the applications by either of the Appellants met the terms of the relevant Immigration Rules.”
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After directing himself as to the approach to be taken the judge set out his conclusions under Article 8 at [18] and [19] as follows:
“18. As I have indicated, the principles under article 8 of the ECHR require a fair balance to be struck between the public interest in the control of immigration and the rights of the individual. In this appeal, there are no factors in the history of either of the two Appellants or of the sponsor which would serve to increase or enhance the weight which must be given to the control of immigration, but that weight is, nevertheless, substantial. It has received parliamentary endorsement in section 117B [of the] Nationality, Immigration and Asylum Act 2002, as have the specific terms of the Immigration Rules. I have set out above my conclusions about the best interests of the second Appellant as a child and I take into consideration the voluntary arrangement of the family life which the first Appellant and the sponsor began in 2004. Counsel for the Appellant’s rightly pointed out that the second Appellant should not be made a ‘victim’ of errors or actions by her parents but that is not a key issue in this appeal. The sponsor explained why he and his wife had chosen to delay the applications for entry clearance. Whether those were or were not good reasons is not for me to say.
19. There is some evidence that the first Appellant has medical issues but that evidence also confirmed that she is in receipt of medical treatment in Bangladesh and there is no evidence to suggest that treatment will not continue. I find that there is no evidence that there are medical reasons why the first Appellant should be allowed to settle in the UK. The second Appellant is, according to her father, in the middle of a university degree in micro-biology which she can pursue for the next few years. There is a question in her best interests whether it is right for that course to be disrupted at this stage. There is no evidence to suggest that there need be any change in the existing arrangements which have served this family for 11 years up to the date of application. Weighing up the various factors, I find that they do not demonstrate the sort of exceptional, or compelling...
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