Upper Tribunal (Immigration and asylum chamber), 2019-09-12, OA/14206/2013
| Jurisdiction | UK Non-devolved |
| Date | 12 September 2019 |
| Published date | 14 November 2019 |
| Hearing Date | 04 September 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | OA/14206/2013 |
Appeal Number: OA/14206/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/14206/2013
THE IMMIGRATION ACTS
|
Determined at Field House |
Decision & Reasons Promulgated |
|
On 4 September 2019 |
On 12 September 2019 |
|
|
|
Before
UPPER TRIBUNAL JUDGE blum
Between
ARUN DASGUPTA
(anonymity direction NOT MADE)
Appellant
and
ENTRY CLEARANCE OFFICER (New Delhi)
Respondent
Representation:
For the Appellant: Mr R De Mello and Mr T Muman, both of Counsel, instructed by JM Wilson Solicitors
For the Respondent: Mr N Sheldon, of Counsel, instructed by the Government Legal Department, and Mr A Henderson (in respect of the written submissions dated 11 January 2019)
DECISION AND REASONS
-
This appeal has an unfortunate procedural history and is tinged by the death of the appellant on 24 September 2018. The promulgation of this decision has been delayed due to the relative complexity of the issues and other professional commitments, for which I apologise.
Background
-
The appellant was a national of India, born in 1930. He was a retired businessman and widower, his wife having died in 2007. Since then he had visited his British citizen daughter (Dr [SD], hereafter ‘the sponsor’) and her family (her husband and two children) almost annually. He developed a strong relationship with his daughter and his grandchildren.
-
On 29 March 2013 the appellant applied for entry clearance to come to the UK as the Adult Dependent Relative (ADR) of his sponsor. The application was refused in a decision made by the Entry Clearance Officer of New Delhi (the respondent), dated 27 June 2013, under Appendix FM of the Immigration Rules. An appeal to the First-tier Tribunal was dismissed under the Immigration Rules but allowed on grounds that the decision breached Article 8 ECHR.
-
Both parties cross-appealed the decision of the Judge of the First-tier Tribunal R R Hopkins (FtJ), the respondent on the basis that the FtJ erred in law by allowing the appeal under Article 8, the appellant on the basis that the FtJ should have allowed the appeal under the Immigration Rules and decided that the ADR rule was, at least in part, not in accordance with the law and/or was incompatible with Article 8 ECHR. The grounds of appeal contended that the ADR rules were ultra vires, irrational, unlawful, and disproportionate and incompatible with Article 8, that they failed to provide for the best interests of children, that they were based on an inadequate consultation process, and that they led to discriminatory consequences based on race, religion, ethnic, cultural and national origins in respect of those culturally obliged to care for their adult dependent relatives.
-
In granting the appellant permission to appeal a First-tier Tribunal Judge stated,
“It seems to me that the Appellant’s submissions, in suggesting that the Upper Tribunal could deal simultaneously with the case as a judicial review (deploying a High Court Judge), has [sic] not only technical obstacles (no such application having been made) but overlooks that a challenge to the vires of the Rules is excluded by the Lord Chief Justice’s Practice Direction governing UT judicial reviews. However, there is some authority for the proposition that in exercising its statutory ‘in accordance with the law’ jurisdiction … the Upper Tribunal in deciding appeals cannot exclude issues going to vires.”
The appeal within the Upper Tribunal
-
The Upper Tribunal heard the appeal and cross-appeal on 3 December 2015. The parties’ submissions on the appellant’s cross-appeal were not completed and the Upper Tribunal was informed that another half day was required for this purpose. A further hearing date (21 January 2016) was chosen to enable the parties to complete their submissions.
-
By way of directions dated 7 December 2015 the Upper Tribunal informed the parties of its view that the respondent’s appeal was severable from the appellant’s appeal and that, while they were clearly inter-related, there was no inter-dependency. Having considered the overriding objective in the Tribunal Procedure (Upper Tribunal) Rules 2008 (the Procedure Rules), including the factor of delay, and having regard to the pending application for permission to proceed with a judicial review of the lawfulness of the ADR rules in the Administrative Court, and taking account of the appellant’s advanced age, his deteriorating health and the ages of his grandchildren, the Upper Tribunal decided to determine the respondent’s appeal first. The hearing listed for 21 January 2016 was converted into a Case Management Hearing and the 29 January 2016 was listed as the hearing date to complete the submissions on the appellant’s cross-appeal.
-
Having heard full submissions in respect of the respondent’s appeal, and having assessed those submissions, the Upper Tribunal was satisfied that the FtJ was entitled, on the particular facts of the case, to find the existence of Article 8 family life between the appellant and his daughter and grandchildren. The Upper Tribunal was also satisfied that the FtJ properly directed himself in accordance with the applicable legal principles, that his conclusion in respect of Article 8 was supported by adequate reasons, and that his finding that exceptional circumstances existed that rendered the entry clearance decision disproportionate under Article 8 was sustainable in law. The respondent’s appeal was consequently dismissed in a decision promulgated on 11 December 2015. The respondent did not seek permission to appeal and the appellant was granted limited leave to enter the UK and did so.
-
On 16 December 2015 the Administrative Court granted permission to BritCits (a charity set up to represent the interests of sponsors and applicants affected by the Immigration Rules on family migration introduced in July 2012 and to campaign to revoke or alter them) to proceed with a judicial review in which it sought to quash the new ADR provisions of the Immigration Rules. In directions issued on 20 January 2016 the hearings listed for 21 and 29 January 2016 were vacated in light of the grant of permission in the BritCits judicial review. As the BritCits case also concerned a challenge to the lawfulness of the ADR Rules and the compatibility of the Immigration Rules with Article 8, the appellant’s cross-appeal was stayed pending the handing down of judgment by the Administrative Court.
-
On 20 April 2016 Mr Justice Mitting gave an extempore judgment dismissing the judicial review claim on all grounds (BritCits, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 956 (Admin)). Mr Justice Mitting however granted permission to appeal to the Court of Appeal. Following directions issued by the Upper Tribunal in September 2016 concerning the continued prosecution of the appeal, and in light of the parties’ responses and the impending decisions of the Supreme Court in a trio of cases involving the status of the new Immigration Rules (Hesham Ali [2016] UKSC 60, Agyarko [2017] UKSC 11, and MM (Lebanon) [2017] UKSC 10), the Upper Tribunal directed that the cross-appeal would be listed after the handing down of the Supreme Court judgments. The directions also required the appellant’s skeleton argument to include the precise formulation of his suggested interpretation of ECDR.2.5 by reference to s.3 of the Human Rights Act 1998.
-
Following the handing down of the Supreme Court decisions the cross-appeal was listed for 17 May 2017. The Court of Appeal however heard the appeal brought by BritCits in early May 2017. The hearing listed for 17 May 2017 was therefore vacated and, in directions issued on 9 May 2017, the Upper Tribunal indicated that the remaining cross-appeal would be listed for hearing on the first available date after the Court of Appeal handed down its judgement. The directions also noted that the appellant’s skeleton argument was to include the appellant’s precise formulation of his suggested interpretation of ECDR.2.5 by reference to s.3 of the Human Rights Act 1998.
-
The Court of Appeal handed down its judgment on 24 May 2017, dismissing BritCits’s appeal on all grounds (BritCits v The Secretary of State for the Home Department [2017] EWCA Civ 368; hereafter ‘BritCits’). The appellant however requested that the cross-appeal before the Upper Tribunal be stayed as BritCits had lodged an application for permission to appeal with the Supreme Court. In directions issued on 1 August 2017 the parties were required to inform the Upper Tribunal when a decision was reached by the Supreme Court, and, if the Supreme Court refused permission, the appellant was to inform the Upper Tribunal within 14 days whether he wished to proceed with his appeal and, if so, to particularise in detail the grounds for so doing.
-
The Supreme Court refused permission to appeal in the BritCits case on 14 December 2017. By email dated 20 April 2018 the appellant’s legal representative indicated that he wished to continue the appeal “… on the section 55 ground” (a reference to s.55 of the Borders, Citizenship and Immigration Act 2009, which requires...
To continue reading
Request your trial