Upper Tribunal (Immigration and asylum chamber), 2016-11-14, IA/16668/2015 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 14 November 2016 |
| Published date | 17 August 2020 |
| Hearing Date | 04 November 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/16668/2015 & Ors. |
Appeal Number: IA/16668/2015
IA/16718/2015
IA/16740/2015
IA/16748/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16668/2015
IA/16718/2015
IA/16740/2015
IA/16748/2015
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 4 November 2016 |
On 14 November 2016 |
|
|
|
Before
DEPUTY UPPER TRIBUNAL JUDGE DOYLE
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
ABDUL [B]
REENA [B]
[F A]
[T Z]
(Anonymity Direction Not made)
Respondents
Representation:
For the Appellant: Mr I Jarvis, Senior Home Office Presenting Officer
For the Respondent: Mr S Karim (counsel), instructed by Liberty Legal, solicitors
DECISION AND REASONS
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of the Appellants. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Secretary of State for the Home Department brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Hosie, promulgated on 2 June 2016, which allowed the Appellants’ appeals on article 8 ECHR grounds.
Background
3. The second appellant is the first appellant’s wife. The third and fourth appellants are the children of the first and second appellants. The first appellant was born on 30 June 1974. The second appellant was born on 2 August 1983. The third appellant was born on 23 February 2004. The fourth appellant was born on 15 September 2011. All four appellants are nationals of Bangladesh.
4. The first appellant entered the UK on 14 July 2007 as a student with entry clearance until 31 October 2009. He was then granted leave to remain as a student until 30 April 2011 after which he was granted Tier 1post study leave until 10 December 2012. He made an unsuccessful application for leave to remain as a tier 1 entrepreneur on 28 November 2012. His appeal against that refusal was unsuccessful and his appeal rights were exhausted on 24 March 2014. On 17 April 2014 he applied for leave to remain as a tier 4 student. Leave was granted until 29th February 2016. The respondent curtailed that grant of leave to 7th February 2015.
5. The second appellant entered the UK on 12 June 2008 as the first appellant’s dependent spouse with leave valid until 31 October 2009. She was then granted limited leave to remain in line with the grants of leave to the first appellant.
6. The third appellant entered the UK on 12 June 2008 with his mother. He was granted leave to remain in line with the grants of leave to his parents.
7. The fourth appellant was born in the UK and has been granted leave to remain in line with the grants of leave to his parents.
8. On 19 January 2015 the appellants applied for leave to remain in the UK on article 8 ECHR grounds. The respondent refused the applications on 16 April 2015.
The Judge’s Decision
9. The Appellants appealed to the First-tier Tribunal. First-tier Tribunal Judge Hosie (“the Judge”) allowed the appeal against the Respondent’s decision.
10. Grounds of appeal were lodged and on 7 October 2016 Designated Judge Garratt gave permission to appeal stating inter alia
3. Whilst the decision is comprehensive the Judge arguably fails, in paragraph 22, to set out a reasoned decision in relation to the “reasonableness” test set out in paragraph 276 ADE of the immigration rules. She appears to consider, erroneously, that, because consideration of article 8 outside the immigration rules required circumstances which were exceptional, it was appropriate to proceed without more. The judge appears to have relied solely on the fact that the third appellant was a child who had been in the United Kingdom for more than seven years as an exceptional circumstance. It is arguable that, just because the third named appellant had been in the United Kingdom for seven years at the date of hearing (rather than application), this identified exceptional circumstances particularly when it is clear that all appellants were a family unit and could return to Bangladesh together.
The Hearing
11. (a) Mr Jarvis, for the respondent, moved the grounds of appeal. He told me that the Judge had placed undue emphasis on the fact that the third appellant has been present in the UK for more than seven years. He told me that the Judge’s consideration of section 117B(6) of the 2002 Act was incorrect, and that what is required is a holistic proportionality assessment weighing all of the specific facts and circumstances.
(b) He took me to [32] of the decision where, he told me that, the Judge confused the concepts of lawful residence and precarious immigration status. He told me that, there, the Judge manifestly applies the wrong part of section 117B of the 2002 Act. He told me that the final sentence of [32] is an assumption made by the Judge rather than an evidence-based finding of fact. He placed reliance on AM (S 117B) Malawi [2015] UKUT 260 (IAC), and told me that because the appellants have never had anything other than limited leave to remain, any private life that they may have developed in the UK is precarious.
(c) He took me to [37] of the decision, where the Judge focuses on the impact of removal on the third appellant, and told me that there the Judge finds that this case is finely balanced. He told me that section 117B(6)(b) of the 2002 Act indicates that the child’s best interests are not the sole relevant consideration. He reminded me that this is a case which has always proceeded on an argument that article 8 ECHR is engaged out-with the immigration rules, and that none of the appellants can fulfil the requirements of the immigration rules.
(d) Mr Jarvis urged me to allow the appeal and set the Judge’s decision aside.
12. (a) For the appellants Mr Karim argued that the grant of permission to appeal had been made on the basis that the Judge’s error lay in conducting a two-stage article 8 assessment. He argued that the submissions from Mr Jarvis amounted to a concession that that ground of appeal was not to be argued. In any event, he told me that the decision does not contain any errors material or otherwise
(b) Mr Karim told me that the grounds of appeal amount to no more than a disagreement with the Judge’s findings and an attempt to re-litigate this appeal, failing which he argued that the respondent is raising a perversity challenge. He took me to [25] of the decision where, he said, the Judge specifically refers to section 117 of the 2002 Act and focuses on the third appellant’s circumstances. He told me that [25] indicates that the relevant considerations were at the forefront of the Judge’s mind.
(c) Mr Karim took me to [32] of the decision where, he told me, the Judge deals with both the lawful nature of the appellant’s immigration status and submissions which were made on whether or not the immigration status was precarious. He told me that at [30], [31] and [35] the Judge takes correct guidance in law before commencing a reasonableness assessment between [36] and [38]. He then took me to various passages from R (on the application of MA (Pakistan) and Others) v Upper Tribunal (IAC) and Another [2016] EWCA Civ. He emphasised that the appellants’ immigration status might have been precarious, but it was lawful throughout.
(d) Mr Karim told me that the Judge’s findings of fact are beyond criticism; that the Judge correctly directed herself in law and then reached conclusions which were well within the range of conclusions reasonably available to her. He urged me to dismiss the appeal and to allow the Judge’s decision to stand.
(e) Mr Karim told me that there had been a change in circumstances since the date of decision. Since the decision was promulgated the first appellant has had a heart attack and the second appellant has safely delivered their third child. He told me that, if I find a material error of law, further fact finding is now necessary and urged me to remit this case to the First-tier to be heard of new if I find against the appellants.
Analysis
13. At [25] the Judge draws a clear focus on the argument for the appellants when she says
The appellants base their article 8 claims on the now almost 8 years residence in the UK of the third appellant and the disruption to family life which would be caused by his removal. They also claim it would not be proportionate to remove the rest of his immediate family in the circumstances.
14. At [30] and [31] the Judge takes guidance from Azimi-Moayed and others (decisions affecting children; onward appeals), [2013] UKUT 00197, PD & Others (Article 8:conjoined family claims) Sri Lanka [2016] UKUT 108(IAC) and ZH (Tanzania) v SSHD [2011] UKSC 4. The Judge refers to section 117B of the 2002 Act at [25], and at [31] and [32] considers the appellants case against section 117B. In the final sentence of [31] the Judge makes a clear finding that the appellants’ leave has always been precarious.
15. Although the Judge finds that the appellant’s leave has always been...
To continue reading
Request your trial