Upper Tribunal (Immigration and asylum chamber), 2019-04-15, HU/13417/2018 & HU/13418/2018


Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/13417/2018


Heard at Field House
Decision & Reasons Promulgated
On 20 March 2019
On 15th April 2019




KHANDAKER [B] - 1st Appellant
SH - 2nd Appellant
(Anonymity orders not made)


For the Appellants: Mr A Swain of Counsel
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

The Appellants
1. The Appellants are both citizens of Bangladesh. The first Appellant who I shall refer to as the Appellant is the mother of the 2nd Appellant, SH. The Appellant was born on 2 January 1980. SH was born on 7 October 2002 and is now 16 years of age. They appeal against a decision of Judge of the First-tier Tribunal Geraint Jones QC sitting at Hatton Cross on 7 January 2019 in which he dismissed the Appellant's appeals against decisions of the Respondent dated 7 June 2018. Those decisions were to refuse the Appellant's application for leave to remain on the basis of their family and private life in the United Kingdom because she could not meet, inter alia, the suitability requirements of Appendix FM. She had employed a proxy test taker on 6 March 2013 and she and her children could relocate to Bangladesh.
2. The Appellant entered the United Kingdom on 8 September 2009 with valid leave as a Tier 4 (General) student valid until 28 February 2011. On 21 February 2011 the Appellant applied for a further tier 4 student visa which was granted until 26 January 2014. This was extended until 30 August 2014 but an application made on 7 August 2014 for a Tier 2 (skilled worker) visa was refused on 16 October 2014. An appeal against that decision was dismissed and the Appellant's appeal rights were deemed exhausted on 23 September 2015. On 3 November 2015 she applied again for a Tier 2 (skilled worker) visa but this was voided by the Respondent on 29 November 2016. By then the Appellant had made her application on 20 April 2016 the refusal of which has given rise to the present proceedings.
3. SH arrived in the United Kingdom on 29 February 2012 having previously been left in Bangladesh when the Appellant came to the United Kingdom in 2009. Whilst in the United Kingdom the Appellant gave birth to two further children: L on 1 August 2012 who is now 6 years of age and A born 12 May 2017 who is now one year of age. None of the three children of the Appellant were qualifying children within the meaning of the Immigration Rules and the Nationality, Immigration and Asylum Act 2002, at the date of the hearing before the First-tier.
The Appellant's Case
4. The Appellant resides with her husband who is also a citizen of Bangladesh and has no lawful immigration status. Neither the Appellant nor her husband work and the family lives on help from friends and other family members. Contrary to the claim of the Respondent the appellant took an English language test herself on 6 March 2013 and duly passed it. Each of the children are familiar with the lifestyle in the United Kingdom and their welfare and development would be seriously hindered if any of them were required to relocate to Bangladesh even if that was as a family unit. The children would be at a disadvantage in Bangladesh because they could only speak and understand Bengali "to an extent". At home the entire family conversed in English. The Appellant relied on a report from Ms Diana Harris an independent social worker. She stated that a move would cause disruption to the children's studies and unwanted change in the children's lives would have deleterious effects on them.
The Decision at First Instance
5. At [29] of his determination the Judge set out his findings of fact noting that neither the Appellant nor her husband had any immigration status in this country. The Appellant had chosen to remain illegally in the United Kingdom since losing her appeal in the Tribunal in 2015. The family members conversed between themselves in Bengali and SH could speak and understand that language. He had undoubtedly used that language until he came to the United Kingdom when he was 9 years of age. The family wished to continue residing in this country even if it involved illegality. The family lived in unsatisfactory housing with only one bedroom and were maintained by the earnings of the Appellant's husband in what the Judge described as "the grey market". He rejected as untruthful the evidence that the family was maintained by the generosity of friends or relatives. The Appellant's husband would be able to enter the labour market in Bangladesh and provide for his family there. The Judge rejected evidence of the cost of education in Bangladesh.
6. The Judge directed himself that he was obliged to apply the decision of the Supreme Court in KO [2018] UKSC 53. The question whether or not it was reasonable to expect a child to leave must be seen in the entire factual context not judged in some artificial vacuum. That was not to blame the children for the sins of their parents who had chosen to flout the immigration laws of this country. The issue of powerful reasons being required where qualifying children were involved did not arise in this case because none of the children were qualifying children. There were no exceptional compelling circumstances requiring the appeal to be allowed outside the immigration rules. SH would be departing at the very least with his own mother and as a matter of probability with his entire family unit. He would...

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