Upper Tribunal (Immigration and asylum chamber), 2017-12-15, VA/02362/2015 & Others
| Jurisdiction | UK Non-devolved |
| Date | 15 December 2017 |
| Published date | 09 January 2018 |
| Hearing Date | 27 November 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | VA/02362/2015 & Others |
Appeal Number: VA/02362/2015
VA/02367/2015
VA/02368/2015
VA/02365/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02362/2015
VA/02367/2015
VA/02368/2015
VA/02365/2015
THE IMMIGRATION ACTS
|
Heard at Field House, London On 27th November 2017 |
Decision and Reasons Promulgated On 15th December 2017 |
Before
UPPER TRIBUNAL JUDGE REEDS
Between
ASHRAF RAHMAN SHIPLU
ASHRAFUZZAMAN ABDULLAH
LABLU LABLU
JILAKHA BEGUM
Appellants
And
entry clearance officer -bangladesh
Respondent
Representation:
For the Appellants: Mr C. Mannan, instructed by way of Direct Access.
For the Respondent: Mr D. Clarke, Senior Home Office Presenting Officer
DECISION AND REASONS
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The Appellants are citizens of Bangladesh, who made applications for entry clearance to visit the United Kingdom for a period of six weeks primarily in order to visit a family relative who was terminally ill.
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Those applications were refused by the Entry Clearance Officer in decisions taken on 10 March 2015. Each Appellant received a refusal notice setting out the reasons given for refusing their applications for entry clearance. Each notice purported to take account of the compassionate nature of the application but stated that each Appellant must show that they qualify for a visa by explaining their own circumstances. It was further acknowledged that a letter of invitation been provided with supporting documents and that the sponsor was in a position to maintain and accommodate each Appellant during the visit. However the decision letters went on to state that “your sponsor is only one element of the application and I must assess the information you have provided about yourself separately from that provided by your sponsor.” The entry clearance officer, after considering each Appellant’s particular financial circumstances and evidence provided, concluded that he was not satisfied that they had presented a complete and accurate picture of their personal and economic circumstances in India. It is of note that the Appellants in this appeal are all nationals of Bangladesh. Furthermore, the Entry Clearance Officer was not satisfied that they would leave the United Kingdom at the end of their visit or that they were genuinely seeking entry as visitors for a period not exceeding six months. Each application was refused because the ECO was not satisfied, on the balance of probabilities that they met the requirements of the relevant paragraph of the United Kingdom Immigration Rules.
At the end of the decision letters, the following is set out:
“Your right of appeal is limited to the grounds referred to in section 84(1) (c) of the Nationality, Immigration and Asylum Act 2002.”
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The appeal was heard on 30th September 2016 by the First-tier Tribunal Judge Abebrese who on that occasion heard evidence from the sponsor, Mr Miah. The appeals were dismissed for the reasons set out in the Decision of the First-tier Tribunal Judge.
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The Appellant sought permission to appeal that decision and on 8 May 2017 permission was refused by FTT Judge Ford. However further grounds of permission to the Upper Tribunal were provided and on 1 August 2017 Upper Tribunal Judge Rimington granted permission for the following reasons:
“It is argued that grounds in respect of the application of permission to appeal to the First-tier Tribunal Judge were indeed served. The Appellants have now obtained legal advice. Nonetheless time was extended by the Tribunal in considering the application. The grounds to the upper Tribunal have now been amended to state that the judge’s decision (i) applied the wrong burden of proof (ii) was contradictory in that it appeared to allow third Appellants appeal only to then dismiss the appeal and further (iii) failed to consider Article 8 at all. I note human rights was the only basis of the appeal. I grant permission of the grounds (ii) and (iii) identified above only. The judge clearly directed himself on the appropriate burden and standard of proof.”
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At the hearing before the Upper Tribunal on the 20th September 2017, Mr Mannan appeared on behalf of the Appellants and Mr Nath on behalf of the Respondent. There had been a number of large bundles provided to the Tribunal principally dealing with the financial and personal circumstances of the individual Appellants. With the assistance of Mr Mannan, he provided a composite bundle which he stated included all the relevant documentation. The bundles had not been received by the presenting officer.
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It became clear at that hearing that there was agreement between the advocates that the decision of the First-tier Tribunal Judge did involve the making of an error on a point of law as identified in the grant of permission at (iii) namely that the judge had failed to deal with Article 8 at all. Mr Mannan had submitted that the judge was plainly aware that the nature of the visit was on compassionate grounds for the family members to visit their relative in United Kingdom who was terminally ill. However, there was no reference in the determination to the identity of their family relative or those compassionate circumstances which had been referred to in the application form but also at the beginning of the decision letters in relation to each Appellant. He also submitted that a further reason that had been given was to visit a new-born child of the family. Thus he submitted there was evidence before the judge upon which he should have taken into account and made an assessment of the Article 8 issues.
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In determination promulgated on the 21st September 2017 I set out the decision on the error of law as follows:
“8. Mr Nath behalf of the Respondent agreed with that assessment. In the light of the agreement reached between the advocates that the decision did disclose the making of an error on a point of law, it is only necessary for me to set out why I agree with them.
9. The Appellants appealed to the Immigration and Asylum Chamber. Their appeal rights were limited and in essence they could only bring their appeal on human rights grounds.
10. The First-tier Tribunal Judge considered that the Appellants had not adequately addressed the concerns expressed by the ECO in respect of paragraphs 41(i) and (ii) of the Immigration Rules. However, the First-tier Tribunal Judge did not appear to take into account that this was an appeal limited to human rights grounds which in practical terms on the facts of this case meant limited to Article 8 grounds, and was not an appeal under the Immigration Rules. Accordingly, an ability to meet the requirements of the Immigration Rules was not determinative of the outcome in the appeal. It was a matter that might sound in the proportionality assessment, that is to say the evaluation pursuant to the fifth of the Razgar questions, but it was not in itself determinative or not of the existence of family life which was the starting point for any appeal brought under the limited grounds.
11. The Judge does not advance any further analysis or consideration of the facts of family life and does not deal with the issue of the existence of family life. There was some information, albeit limited, which related to the compassionate nature of the visit that was intended which had been set out in the application form and recited at the beginning of the decision letters. The determination fails to deal with this issue at all. At the time of the hearing, the sponsor was acting in person on behalf of the Appellants and it does not appear that he was asked any questions that related to the Article 8 assessment which was the starting point for the appeal.
12. For those reasons, the decision cannot stand and shall be set aside. Both advocates agree that the correct course is for the Upper Tribunal to remake the decision after hearing the evidence of the sponsor and considering the documentation provided. Therefore the appeal will be listed for a resumed hearing with the following directions.
13. Any further documentary evidence relied upon by the Appellants shall be filed and served on the Tribunal and the Presenting Officer’s Unit no later than 7 days before the resumed hearing in a bundle that has an index and is paginated. The Appellants shall serve and file a copy of the composite bundle (provided by Mr Mannan) upon the Presenting Officer’s Unit (if not already done so) within 21 days of this determination being served.”
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Thus the appeal came before the Upper Tribunal on 27 November 2017 to re-make the decision. At that hearing the Appellants were again represented by Mr Mannan and the Secretary of...
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