Upper Tribunal (Immigration and asylum chamber), 2014-08-29, OA/05996/2013
| Jurisdiction | UK Non-devolved |
| Date | 29 August 2014 |
| Published date | 30 December 2014 |
| Hearing Date | 27 August 2014 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | OA/05996/2013 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/05996/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On August 27, 2014 |
On August 29, 2014 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE ALIS
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MRS ADAMA SERAY BAH
Respondent
Representation:
For the Appellant: Mr Duffy (Home Office Presenting
Officer)
For the Respondent: Mr Sowerby, Counsel, instructed by Portway
Solicitors
DETERMINATION AND REASONS
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Whereas the respondent is the appealing party, I shall, in the interests of convenience and consistency, replicate the nomenclature of the decision at first instance.
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The appellant, born July 10, 1987, is a citizen of Sierra Leone. On November 14, 2012 she applied for entry clearance as the spouse of a person settled in the United Kingdom.
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The appellant and sponsor, Abdul Rahman Bah, married on June 20, 2005 and they have a son, born May 21, 2009. The child is a British subject and at the date of application was living with the appellant in Sierra Leone.
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The respondent refused her application on February 7, 2013 as she was not satisfied:
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The appellant and sponsor were in a genuine and subsisting relationship.
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The appellant and sponsor satisfied the financial requirements of the Immigration Rules.
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On February 25, 2013 the appellant appealed under Section 82(1) of the Nationality, Immigration and Asylum Act 2002. The respondent reviewed the original decision on October 31, 2013 and upheld the original decision. The entry clearance manager considered the application under article 8 ECHR but was satisfied refusal was not disproportionate.
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The matter was listed before Judge of the First-tier Tribunal Shamash (hereinafter referred to as “the FtTJ”) on March 31, 2014 and in a determination promulgated on May 15, 2014 she refused the appeal under the Immigration Rules but allowed the appeal under article 8 ECHR.
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The respondent appealed that decision on May 22, 2014. Permission to appeal was granted by Judge of the First-tier Tribunal Nicholson on June 25, 2014. He found the FtTJ may have erred for the reasons set out in the grounds namely allowing the appeal on factors that post-dated the date of decision.
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Mr Sowerby agreed that if there was an error in law that firstly I should retain the matter in the Upper Tribunal and secondly the matter could proceed to conclusion without any further representations from either party.
SUBMISSIONS ON ERROR OF LAW
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Mr Duffy submitted there was a clear error of law because the FtTJ had materially erred in allowing the appeal under article 8 ECHR for events that occurred after the date of decision. Section 85(5) of the 2002 Act makes it clear that such applications must be considered at the date of decision. The House of Lords in AS (Somalia) (FC) and another v Secretary of State for the Home Department [2009] UKHL 32 made clear in paragraph [19]
“Mr Gill’s argument, therefore, was that section 85(5) is incompatible with the right to respect for the family under article 8 because the restriction that it imposes is not proportionate. I am willing to recognise that there may be some cases where entry clearance is sought in which it will be necessary to grapple with this issue, but in my opinion this is not one of them. It is the generality of his proposition that leads him into a difficulty, which I regard as insurmountable. He submits that section 85(5) should be read down to enable the adjudicator to look at all the circumstances because it is likely that the restriction will affect a substantial number of other applicants or, if this is not possible, that there should be a declaration of incompatibility. I agree with Sedley LJ that the language of section 85(5) is incapable of being read down in the way Mr Gill suggested. The directions that it contains could not be put more plainly.
Subsection (4) “shall not apply”. The adjudicator “may consider only” the circumstances appertaining at the time of the decision to refuse. These words are, as Sedley LJ said, unequivocal and unyielding: [2008] EWCA Civ 149, para 16. Reading them down would be to cross the boundary between interpretation and amendment of the statute: Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557, para 121, per Lord Rodger of Earlsferry. Even if, as I am willing to assume, there may be cases where a decision to refuse to consider the up-to-date position could lead to an interference with the article 8 right in a way that was not proportionate, the adjudicator must abide by the terms of the statute. It will not be unlawful for him to do so, because the result of its provisions is that it is not open to him to act differently: 1998 Act, section 6(2)(a).”
Mr Duffy argued the fact the child came to live in the United Kingdom (nine months later) was not something the FtTJ should have considered. If the FtTJ had allowed the appeal based on her findings in paragraph [36] then his argument would have no basis but it is clear from paragraph [37] of the determination that this appeal was allowed because of what had happened after the date of decision.
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Mr Duffy submitted that the FtTJ also erred because he applied a “near miss” assessment when the courts have made clear that there is no such thing as a near miss in Immigration appeals.
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Mr Sowerby submitted:
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The respondent had neither challenged any of the FtTJ’s findings of fact nor the way she dealt with Gulshan [2013] UKUT 00640 (IAC) and Nagre [2013] EWHC 720 Admin.
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The FtTJ clearly had in mind the circumstances that existed before the child came to the United Kingdom because she set out the facts in some detail in paragraph [36] of her determination. She considered the facts and the respondent’s decision and found the latter to be inadequate. As there was a child involved she then quite properly considered the position that now faced the family.
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Whilst Section 85(5) of the 2002 Act can restrict the facts a Tribunal can take into account there are cases where subsequent events are taken into account. For example, in Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041(IAC) and Naz (subsisting marriage – standard of proof) Pakistan [2012] UKUT 00040(IAC) the Tribunal took into account evidence of devotion after the date of decision. The House of Lords in AS (Somalia) at paragraph [21] stated
“I cannot leave this case however without expressing concern at the effect that the delay and expense that the rule may give rise to, when compared with the ease of bringing into account up-to-date information, may have on individual cases. In R (SB) v Governors of Denbigh High School [2006] UKHL 15; [2007] 1 AC 100, para 68, Lord Hoffmann said that article 9, which was in issue in that case, was concerned with substance, not procedure. What mattered was the result: was the right restricted in a way, which was not justified under article 9(2)? I would apply that reasoning here too. The facts of this case are academic, as the appellants have been given leave to enter and are now in the United Kingdom. But there may be other cases, where very young children or vulnerable adults are involved for example, in which respect for family life cries out for urgent attention. The delay resulting from the need to start the procedure again, and to find the money to do so, may be so plainly out of keeping with the needs of the case that the application of the rule in their case may be found to be disproportionate. Situations of that kind can only be dealt with on a case-by-case basis. The effect of the legislation is that domestic law is incapable, even in those cases, of providing a remedy. But the Secretary of State should bear in mind that they may be vulnerable to an adverse decision in Strasbourg, and I would not rule out the possibility of a declaration of incompatibility in an individual case if the circumstances were so clearly focussed as to enable the precise nature of the incompatibility with the applicant’s article 8 right to be identified.”
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The House of Lords, he submitted, gave a clear indication that each case should be considered on its own merits and that is what the FtTJ did in this appeal. The FtTJ gave ample reasons for taking the decision she did and the decision was sustainable. In paragraph [30] of AS (Somalia) the House of Lords stated-
“These children should not have had to wait so long before being reunited...
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