Upper Tribunal (Immigration and asylum chamber), 2014-11-13, IA/47760/2013 & IA/05929/2014
| Jurisdiction | UK Non-devolved |
| Date | 13 November 2014 |
| Published date | 02 March 2015 |
| Hearing Date | 01 October 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/47760/2013 & IA/05929/2014 |
Appeal Numbers: IA/47760/2014
IA/05929/2014
IAC-FH-NL-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/47760/2013
IA/05929/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Determination Promulgated |
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On 1st October, 2014 |
On 13th November, 2014 |
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Before
the hon. lord boyd
sitting as a judge of the upper tribunal
UPPER TRIBUNAL JUDGE D E TAYLOR
Between
rafaqat begum
ruhul amin
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr Z Malik of Counsel instructed by Malik Law Chambers Solicitors
For the Respondent: Mr T Melvin, Home Office Presenting Officer
DETERMINATION AND REASONS
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These two appeals have been listed together because they raise a common issue, namely the proper construction of the transitional provisions in HC 194 and the Court of Appeal’s judgment in Edgehill v SSHD [2014] EWCA Civ 402 and Haleemudeen v SSHD [2014] EWCA Civ 558. With respect to the decision of Ruhul Amin there is a second issue, namely whether the First-tier Judge erred in following the decisions in R (on the application of) Nagre v SSHD [2013] EWHC 720 and Gulshan (Article 8 – new rules – correct approach) [2013] UKUT 00640 (IAC). There are no challenges to the judge’s findings of fact in either case.
The Appeal of Ruhul Amin
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The Appellant is a citizen of Bangladesh, born on 10th October 1971.
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It was accepted by the First-tier Judge and not subsequently challenged by the Secretary of State that the Appellant came to the UK in 2002 with the aid of an agent. Thereafter he remained unlawfully. In September 2008 he entered into a religious marriage with Tulip Sultana, a Bangladeshi citizen, who first came to the UK on 6th February 2008 as a student and was subsequently granted further leave to remain until 24th October 2011.
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On 9th October 2009 he applied for leave to remain outside of the Rules and was refused. He then applied for a certificate of approval to marry, and they had a civil ceremony on 4th July 2011. They have two children, a son born on 5th December 2009 and a daughter born on 27th June 2013. She presently has leave as a Tier 1 HS Entrepreneur until 2016.
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The Appellant submitted an application for leave to remain on the basis of his family and private life on 13th December 2011, which was initially refused on 3rd September 2012. That decision was withdrawn and it was refused again on 14th January 2014.
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In her letter of refusal the Secretary of State wrote as follows:
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“Further to our withdrawal on 17th September 2013 from your client’s appeal against his refusal of leave to remain on 3rd September 2012 I have reconsidered your client’s application under Article 8 ECHR taking into account Section 55 of the Borders, Citizenship and Immigration Act 2009 and the Immigration Rules put in place on 9th July 2012 under Appendix FM. In reaching this decision only the Immigration Rules and UK Border Agency policy applicable at the date of decision have been considered (as per the case of Odelola v SSHDU [2009] UKHL 25).
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The letter recites the Appellant’s immigration history and states as follows:
“I have considered Article 8 by applying the relevant provisions of the Rules in force on 9th July 2012 (paragraph EX.1 of Appendix FM for family life and paragraph 276ADE for private life) as below.
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There then followed a detailed consideration of the Immigration Rules, consideration of Section 55 and paragraph 353B and a final paragraph headed “Exceptional Circumstances” which reads as follows:
“Your client’s application has been considered exceptionally outside the Immigration Rules. However the Secretary of State’s policy is not to exercise discretion unless there are clear exceptional compassionate circumstances which merit the exercise of discretion outside the Immigration Rules.
You have raised some issues as a basis for a claim of exceptionality in your client’s situation. These have been dealt with elsewhere in this letter. We do not consider that any of these or any other factors you have raised in your submission offer sufficiently compassionate or compelling circumstances for discretion to be exercised in this case.”
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The judge accepted that the Appellant, his wife and children enjoy family life together. It was a part of the Appellant’s case that he could not return to Bangladesh because of his wife’s established business in the UK. The judge found that it had only very recently been established and was not yet operational. If the Appellant and his family decided to return to Bangladesh, it would not mean the demise of an established business.
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The judge also considered the children. He observed that they spoke both English and Bengali. He did not accept that they had no ties with Bangladesh nor that, as claimed, there would be any risk to the Appellant on return on account of his involvement in local politics in Tower Hamlets.
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He concluded that, for the reasons set out in the refusal letter, the Appellant did not satisfy the requirements of Appendix FM with regard to family life or paragraph 276ADE with regard to private life. He then wrote as follows:
“I now need to consider whether there are arguably good grounds for the granting of leave to remain to the Appellant outside the Rules and so necessitating a consideration of a freestanding Article 8 claim. Here I am guided by the case law of R (On the application of Nagre) v SSHD [2013] EWHC 720 (Admin) and Gulshan (Article 8 – new rules – correct approach) [2013] UKUT 00640 (IAC). I do not find that there are any arguably good grounds for granting leave to remain outside the Rules and also that there are no compelling circumstances in this Appellant’s situation which are not sufficiently recognised under the Rules.”
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He found that the decision of the Respondent was in accordance with the law and the relevant regulations and dismissed the appeal on all grounds.
The Appeal of Rafaqat Begum
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Mrs Begum is a citizen of Pakistan born on 16th November 1961. She originally entered the UK on 14th April 2005 on a visit visa. She made an application for leave to remain on 6th June 2011 on human rights grounds and included a claim that she had given birth to a child in the UK. Her application was refused in a decision dated 25th October 2013 by which time it had become clear that the child concerned was the child of her daughter and not the Appellant.
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In a detailed reasons for refusal letter, the Respondent set out the Appellant’s case which she considered under Appendix FM and paragraph 276ADE of the Immigration Rules. She then considered the claim using the five stage test outlined in the case of SSHD v Razgar.
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The Appellant claimed that she had established a strong private and family life in the United Kingdom with her daughter, son-in-law and grandchildren, and said that she needed to be able to access medical treatment and to receive care for her multiple conditions.
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The judge set out the relevant case law. The provisions governing Article 8 were now contained in Appendix FM but the Appellant did not meet the Rules, since she entered the UK on a visit visa and did not meet the requirements of paragraph 276ADE.
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The judge conducted the five stage Razgar test, finding that the Appellant did have family life in the United Kingdom, and concluded that whilst removal would interfere with family life, it was in accordance with the law since she had no leave to be here and proportionate.
The Grounds of Application
Ground 1
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The Appellant relies on Edgehill &Anor v SSHD [2014] EWCA Civ 402, which was concerned with the proper construction of HC 194.
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Under the heading “implementation”, it reads:
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‘The changes set out in this Statement shall take effect on 9 July 2012 ... however, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012’.
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Jackson LJ (with whom Laws LJ and Black LJ agreed) concluded that an application made before 9 July 2012 may not be refused by reference to the provisions introduced by HC 194.
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The grounds argue that the FTT accepted the application to the Secretary of State was made on ’13 December 2011’, and it was therefore not open to her to determine it by reference to Paragraph 276ADE and Appendix FM. The Secretary of State’s decision was therefore not in accordance with the law, as plainly inconsistent with the statement laid before Parliament and the Court of Appeal authority.
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It was recognised that, in Haleemudeen v SSHD ...
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