Upper Tribunal (Immigration and asylum chamber), 2019-09-04, HU/16515/2018
| Jurisdiction | UK Non-devolved |
| Date | 04 September 2019 |
| Published date | 31 October 2019 |
| Hearing Date | 15 August 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/16515/2018 |
Appeal Number: HU/16515/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/16515/2018
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 15th August 2019 |
On 4th September 2019 |
|
|
|
Before
UPPER TRIBUNAL JUDGE RIMINGTON
Between
ANINDITA [S]
(aNONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Salim, instructed by Thamina Solicitors
For the Respondent: Mr T Melvin, Home Office Presenting Officer
DECISION AND REASONS
-
The appellant appeals against the decision of First-tier Tribunal Judge Hussain promulgated on 27th March 2019, dismissing the appeal against the refusal of the Secretary of State for leave to remain as a spouse.
-
The appellant is a national of Bangladesh born in 1976 and she entered the UK on 10th November 2011 as a points-based system dependant spouse, with leave until 24th December 2012. She was granted further leave in this capacity until 9th May 2015. On 29th September 2014 she applied for further leave which was refused on 18th March 2015 and although she appealed that decision, she was appeal rights exhausted on 5th December 2016. On 16th December 2016 she was included as a dependant spouse on an application which was varied on 28th April 2018 to an FLR(M) application. On 29th July 2018 her application was refused, and which generated the appeal before the First-tier Tribunal, Judge Hussain.
-
First-tier Tribunal Judge Hussain recorded that the refusal noted that she did not meet the eligibility requirements with regard to relationship because her partner was neither a British citizen, present and settled in the UK nor a refugee or with humanitarian protection. The judge also noted that the appellant did not include the child on her application and the child was not “applying with her”.
-
The judge noted that the Secretary of State conceded that the appellant was in a genuine and subsisting relationship with her partner who was also a national of Bangladesh. However EX.1 did not apply. Further, there was no evidence that there were any insurmountable obstacles in accordance with paragraph EX.2, which would be faced by her or her partner in continuing family life outside the UK and on return to Bangladesh.
-
Additionally, it was not accepted with regards to paragraph 276ADE that there will be very significant obstacles to her integration into Bangladesh because she had spent the majority of her life in her home country and would be accustomed to a way of life there.
-
The judge noted albeit that the appellant had not included the child in her application that although Section 55 was applied by the Secretary of State.
-
The hearing took place on 6th March 2019. The judge at paragraph 7 of his determination identified that the appellant was not represented either in person or through his representative but that in a letter dated 5th March 2019, Thamina Solicitors wrote to the Tribunal asking for a disposal on the papers. In a previous letter dated 4th March 2019 the representatives explained that the appellant relied on her husband’s immigration status for the success of her application. His application to remain was refused by the Secretary of State against which she appealed and that appeal was heard on 19th November 2018 and allowed by the First-tier Tribunal. The letter explained that the Secretary of State had been granted permission to appeal the grant obtained leave against that decision and the substantive hearing was held at the Upper Tribunal on 27th February 2019. A decision was awaited from the Upper Tribunal. The letter of 4th March 2019 requested an adjournment.
-
The judge noted at paragraph 8 that the success or failure of the appellant’s appeal was dependent on her husband’s immigration status and that an application had been made to adjourn the hearing to await the outcome of the husband’s appeal. The judge made the following findings:
“10. It will be apparent from above that the Secretary of State’s decision to refuse the appellant’s application is not being challenged on the merits. This [is] because, as was accepted by the appellant’s representative, the appellant’s husband does not enjoy any of the statuses mentioned in the refusal letter. Her case is in a nutshell that she is enjoying family life with her child and husband whose immigration status remains unresolved.
11. Whilst I can see the logic of the appellant’s representative’s request for an adjournment, I find that it is not necessary for a just disposal of the appeal.
12. By now, the Upper Tribunal’s decision may well have been promulgated and if the outcome is in the appellant’s favour, then it seems to me that a request for reconsideration by the Secretary of State would be in order. If his appeal has failed, then the appellant would be left in a situation where neither she nor her husband have any immigration status.
13. For present purposes, I find that the Secretary of State’s decision is in accordance with the Immigration Rules.
14. It is now well-established law that if an applicant fails to meet the Immigration Rules, then their circumstance would have to be exceptional to warrant the grant of leave outside of the Immigration Rules. Like the Secretary of State, I find that there are no exceptional circumstance in the appellant’s case to merit the grant of leave outside of the Immigration Rules on conventional Article 8 grounds.”
-
The grounds for permission to appeal asserted the following:
Ground (i) procedural unfairness - The judge proceeded to the hearing with the absence of the appellant and her representative. Although the judge could see the logic of the appellant’s request he did not grant the adjournment which would contradict his own findings. The appellant had set out in her witness statement the circumstances regarding the appellant’s husband’s appeal and that the Upper Tribunal had not decided the matter. As the husband’s appeal had not been decided the representative made an application on 4th March to get the adjournment on her appeal and requested a new hearing date. It was submitted that both the appellant and her solicitors made a request for an adjournment. It was not in the interests of justice for the determination to be heard or promulgated in those circumstances and the judge should have considered the adjournment application properly by giving a reason and given a new hearing date and as such there had been a procedural irregularity. That had led to the appellant being deprived of a right of appeal triggering Nwaigwe (adjournment fairness) [2014] UKUT 00418.
Ground (ii) - The judge erred in law by improperly making his own assumptions of the sponsor’s current immigration status including appending appeal. This was evident at paragraph 12 of the judge’s determination. The judge made a completely wrong assumption in relation to the outcome of the appending appeal. Bearing in mind the options available to the appellant she would not be left in a situation in the near future where neither she nor her husband had any immigration status. The judge proceeded on the wrong assumption.
Ground (iii) – Section 55 of the Borders, Citizenship and Immigration Act did not appear to have crossed the judge’s mind and no findings were made in that respect.
-
Permission to appeal was granted on the basis that
“It was arguable that when considering the request for an adjournment greater consideration should have been given to the fact that the appellant’s husband had been successful before the First-tier Tribunal and as at the date of hearing this was a relevant though potentially a temporary factor when considering the appellant’s Article 8 rights.”
-
The approach adopted at [12] namely that if the husband successfully resisted the respondent’s appeal reconsideration could be sought from the respondent arguably failed to engage with the requirement that Article 8 rights be considered as at the date of the hearing.
-
Mr Melvin submitted that it was up to the appellant to make her case and if the sponsor chose not to attend and the solicitors chose not to attend it was left to the judge to assess the matter on the evidence. It was not incumbent on the judge to go looking for information. The complaint with regard to Section 55 had no merit. This was a separate appeal from that of her husband and on the evidence it was simply not possible to allow this appeal.
Discussion
-
As set out in the refusal letter of the Secretary of State on 26th July 2018 the appellant’s sponsor husband did not have the relevant immigration status. The appellant was given the date, time and venue of the hearing before the First-tier Tribunal and together with her solicitor chose not to attend. There is a letter on file from Thamina Solicitors dated 5th March 2019 which specifically...
To continue reading
Request your trial