Upper Tribunal (Immigration and asylum chamber), 2016-09-01, IA/49226/2014 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 01 September 2016 |
| Published date | 16 April 2020 |
| Hearing Date | 25 August 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/49226/2014 & Ors. |
Appeal Numbers: IA/49226/2014
IA/49235/2014
IA/49234/2014
and IA/49236/2014
IAC-fH-NL-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/49226/2014
IA/49235/2014
IA/49234/2014
IA/49236/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 25 August 2016 |
On 1 September 2016 |
|
|
|
Before
DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
Sumsuz [z] (FIRST Appellant)
DIL [U] (SECOND Appellant)
[M B Z] (THIRD Appellant)
[M M Z] (FOURTH Appellant)
(ANONYMITY DIRECTION not made)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr R Khosla, instructed by D J Webb & Co Solicitors
For the Respondent: Mr S Whitwell, Home Office Presenting Officer
DECISION AND REASONS
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This is my decision on the re-making of these linked appeals.
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By a decision promulgated on 23 June 2016 following a hearing on 6 June, I concluded that the First-tier Tribunal had materially erred in law and I set aside its decision (see Annex 1).
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In essence I found that the First-tier Tribunal should have at least considered the first Appellant’s claim that despite failing to satisfy paragraph 245FD of the Immigration Rules (the Rules) he nonetheless satisfied paragraph 245ED. In addition, I found that the judge erred in his assessment of Article 8. Following the error of law hearing I issued directions to the parties. The Appellants were to file any further evidence relied upon and the Respondent was to provide a written position statement setting out her assessment of the evidence submitted by the first Appellant with his application of 27 June 2014 in the context of paragraph 245ED of the Rules and her consideration of Article 8 in respect of all of the Appellants, with particular regard to the best interests and wellbeing of the third and fourth Appellants.
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Under a covering letter dated 6 July 2016 a supplementary bundle of evidence was provided by the Appellants. That is now on file. In respect of the Respondent’s written position statement, one was as far as I can tell served on the Appellants and filed with the Upper Tribunal on 19 August 2016. The statement is of that same date.
The hearing before me
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At the outset of the hearing I confirmed that both representatives were in possession of all the relevant evidence. Mr Khosla informed me that he had only received the Respondent’s written position statement the day before, but notwithstanding this he did not seek an adjournment. It was agreed by both representatives that the core issue in respect of paragraph 245ED of the Rules was whether or not a general ground of refusal applied to the first Appellant, namely paragraph 322(5) of the Rules, this being the sole basis for the Respondent’s contention that paragraph 245ED could not be satisfied (see page 2 of that statement under the subheading ‘Assessment’).
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Both representatives also confirmed that because of the date of the Respondent’s decisions under appeal (that being 13 November 2014) these appeals all fell within the old appeal regime (i.e. pre-2014 Act amendments). Therefore it was agreed that I had jurisdiction to substitute my own discretion for that of the Respondent in relation to paragraph 322(5) of the Rules, that being a discretionary ground for refusal (see section 86(3)(b) of the Nationality, Immigration and Asylum Act 2002, as it stood before the relevant changes).
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Mr Khosla provided me with the Respondent’s guidance on the general grounds of refusal (v26.0, dated 19 April 2016). He referred me to page 31 of the guidance in which it is stated that a caseworker must only take into account information which is new and was not known to the Home Office at the time of any previous decision. Mr Khosla submitted that in her original decision the Respondent had not relied on paragraph 322(5), but rather 322(1C). He further submitted that the written position statement constituted a “new decision”. Therefore the Respondent should be precluded from seeking to rely on paragraph 322(5) now. He submitted that in seeking to rely on this provision the Respondent was acting contrary to her own policy guidance. Alternatively, Mr Khosla submitted that if the Respondent was entitled to rely on this provision I should exercise my own discretion in the first Appellant’s favour. He asked me to look at the circumstances of the first Appellant’s case in the round. In particular he relied on the fact that the misconduct relied upon by the Respondent related to a caution only, a caution that is due to lapse the day after this hearing. There was no other adverse conduct by the first Appellant whilst in the United Kingdom.
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Mr Khosla asked me to look at the circumstances of the two children, their length of time in the United Kingdom and their best interests. There were no strong countervailing factors in this case. Mr Khosla also referred me to pages 36 and 41 of the Respondent’s guidance and submitted that the factors set out there were far removed from those pertaining to the first Appellant’s case.
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Mr Whitwell submitted that the written position statement was not a new decision but a supplementary reasons letter only. He submitted that paragraph 322(5) of the Rules had not been considered before because there was no need to as paragraph 322(1C) had applied in respect of the application originally made to the Respondent. In respect of the guidance it was non-exhaustive and deliberately couched in wide terms. The caution related to an assault on the first Appellant’s daughter and in all the circumstances I should agree with the decision of the Respondent not to exercise discretion in the first Appellant’s favour.
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In reply Mr Khosla accepted that the guidance was indeed guidance only but he emphasised the fact that the first Appellant’s case was not similar in any way to the matters set out therein.
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In respect of the Article 8 claim both representatives were in agreement that if I decided in the first Appellant’s favour in respect of the paragraph 245ED issue I need not go on and consider human rights. However, if it was necessary to deal with Article 8 I should consider the claims outside of the Rules and in light of Section 117B of the 2002 Act.
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In respect of the reasonableness test, I was urged to follow the decision of the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705.
Re-making the decision in respect of the Rules
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In re-making my decision I have had regard to the Appellant’s original bundle which was before the First-tier Tribunal, indexed and paginated 1 to 73. In addition I have had regard to the supplementary bundle referred to previously. The first Appellant attended the hearing but there was no request by Mr Whitwell to ask any questions of him. There has been no specific challenge to the credibility of any of the evidence contained in the two bundles before me. I have also of course had regard to the Respondent’s bundle and to the guidance provided to me today.
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In light of the Respondent’s position on the credibility of the evidence and having considered that evidence for myself, I have no hesitation in finding it to be wholly reliable.
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It is quite clear from the Respondent’s written position paper that the sole basis for concluding that the first Appellant could not meet paragraph 245ED of the Rules is that subparagraph (a) applies, namely that the application fell to be refused because a general ground for refusal applied, specifically paragraph 322(5). It is accepted that all other requirements of paragraph 245ED are met. Paragraph 322(5) of the Rules is a discretionary ground for refusal. It reads as follows:
“(5) the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security”
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The burden showing that it applies to the first Appellant rests with the Respondent.
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The sole basis provided by the Respondent for the application of paragraph 322(5) is the caution he received on 27 August 2014 for common assault. This assault related to a chastisement of his older daughter, the third Appellant. The fact of the caution is accepted by the first Appellant. Having had regard to all of the evidence before me and the particular circumstances of this case I find that I should substitute my own discretion for that of the Respondent’s and exercise it in favour of the first Appellant. My reasons for this conclusion are as follows.
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First, I reject the argument put forward by Mr Khosla that the written position statement constitutes a “new decision”. The document is simply a position statement as is made clear in my directions from the previous hearing. It amounts to no more than a supplementary reasons letter, as submitted by Mr Whitwell. It was not a new decision on an application that had been formally varied prior to the original decision. Therefore, the Respondent is entitled on the face of it to rely on paragraph 322(5) without...
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