Upper Tribunal (Immigration and asylum chamber), 2018-08-07, HU/01531/2015
| Jurisdiction | UK Non-devolved |
| Date | 07 August 2018 |
| Published date | 22 August 2018 |
| Hearing Date | 14 May 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/01531/2015 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/01531/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 14 May 2018 |
On 7 August 2018 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE DAVEY
Between
mohammad [u]
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Slatter, counsel instructed by Makka Solicitors Limited
For the Respondent: Miss J Isherwood, Senior Presenting Officer
DECISION AND REASONS
1. The Appellant, a national of Bangladesh, date of birth 25 December 1979, appealed against the Respondent’s decision made on 23 June 2015 to refuse an application for leave to remain on the basis of his private and family life.
2. The appeal came before First-tier Tribunal Judge L Rahman (the Judge) who dismissed the appeal against that decision. Permission to appeal that decision was given and on 11 April 2018 I found for reasons given in the decision dated 20 February 2018 that the original Tribunal decision could not stand and that matter would have to be remade in the Upper Tribunal. Directions were given.
3. At the resumed hearing on 14 May 2018 evidence was provided concerning from the Appellant and his wife [SC], a British national date of birth 20 August 1988. The Appellant’s wife had come to the United Kingdom aged about 17 years and had lived here since about 2005, getting indefinite leave to remain in 2007. She is the mother of their child [Z], date of birth 18 May 2015. [Z] is a British national. The Appellant claimed that his removal would be a breach of Article 8 ECHR rights in that it would interfere with his private and family life of which the care of his daughter [Z] plays a significant part and in which he has an active role.
4. For the avoidance of doubt, the Appellant’s wife has a good immigration history. So far as the Appellant is concerned, the Appellant lawfully entered the United Kingdom with a valid student visa on 12 August 2009 which by various extensions was granted until 27 June 2014. On 26 June 2014 the Appellant made an application for a further extension as a student but was refused with a right of appeal on 31 December 2014. The Appellant appealed that decision.
5. The Appellant married his wife in or on 7 January 2015 and they have been together ever since. Following the marriage on 12 February 2015 the Appellant’s previous representatives (Simon Noble solicitors) submitted a further leave to remain on the basis of marriage. Subsequently the representatives withdrew the pending appeal mentioned above whereas they should have withdrawn the appeal prior to making the FLR application.
6. In consequence on 15 April 2015 the Respondent wrote to the former representatives returning the FLR application on the basis that it had been submitted while an appeal was pending. On 30 April 2015 the Appellant’s representatives then submitted a fresh application for leave to remain in which the Respondent was also informed that the Appellant’s wife was pregnant and due to give birth on 4 July 2015. The child was born slightly prematurely on 18 May 2015 and the child’s birth has been registered with the Appellant and his wife as the parents. The birth certificate and other relevant information has been sent to the Respondent.
7. There is thus a period following the withdrawal of the appeal when the Appellant was an overstayer because of the original failure of his representatives to make the application after the withdrawal of the extant appeal. The complexities of the law on this point are really not apparent to the average person and the legal representatives are plainly at fault. Whilst they have not been directly challenged in the sense of a claim the position is that there really is no other explanation that can sensibly prevail which shows that it was the fault of the Appellant.
8. The witness statement of the Appellant contained within the supplementary bundle sets out briefly his dealings with Simon Noble solicitors and his change to new solicitors who have properly pursued the correct course. The position therefore is that the application the subject of this appeal was made more than 30 days after his leave to remain had come to an end and to that extent he is accepted to be an overstayer. But it is simply said it is not through his fault but rather the actions of others and he had no intention to overstay or act in breach of UK immigration controls. His signed statement of 22 February 2018 sets out his future plans in the UK and his involvement in the care of his child as well as the practical difficulties of removing her back to Bangladesh in terms of qualitatively the medical care and education she can receive there. It is not said that the Appellant’s daughter cannot go to Bangladesh with her parents, but rather the benefits of her UK nationality are there for her to enjoy and neither her mother’s or her or indeed her father’s conduct is such as to militate against remaining.
9. In addition, evidence confirming that the child [Z] has a congenital hypothyroid which was diagnosed soon after birth and will require lifetime medication in addition the child has certain premature development delays associated with her metabolism problems, but it is not said that for example the need for physiotherapy and assistance in walking properly, that is in a correct gait, cannot be addressed in Bangladesh but rather the regime is in place in the UK and she is being cared for under the NHS as is her entitlement. She will be able to start mainstream nursery school in September 2018. The Appellant has relied upon statements made by himself and his wife before the First-tier Tribunal, but his later one really adds nothing to the matter and his wife has simply repeated, in effect, in her second statement.
10. The case of SF [2017] UKUT 00120 was cited to me as illustrating at the time of the Respondent’s decision the IDI – Family Migration – Guidance, and in particular in a section headed: “… Would it be reasonable to expect a British citizen child to leave the UK” various points are recited but included within it at the time
“where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British citizen child to leave the EU with that parent or primary carer. In such cases it will usually be appropriate to grant leave to the parent or primary carer to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship.
It may, however be appropriate to refuse to grant leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child could otherwise stay with another parent or alternatively primary carer in the UK … The circumstances envisaged could cover amongst...
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