Upper Tribunal (Immigration and asylum chamber), 2021-03-30, HU/21259/2018 & HU/21255/2019
| Jurisdiction | UK Non-devolved |
| Date | 30 March 2021 |
| Published date | 14 April 2021 |
| Hearing Date | 05 January 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/21259/2018 & HU/21255/2019 |
Appeal Number: HU/21255/2018 and HU.21259/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/21255/2018 (R)
HU/21259/2018
THE IMMIGRATION ACTS
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Remote Hearing by Skype for Business |
Decision & Reasons Promulgated |
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On 5th January 2021 |
On 30th March 2021 |
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Before
UPPER TRIBUNAL JUDGE MANDALIA
Between
MR. SAMSUL HAQUE SALU (1)
Mr. Monsur Alom (2)
(anonymity direction not made)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Z Jafferji, Counsel instructed by Eurasia Legal Services (Birmingham)
For the Respondent: Mrs H Aboni, Senior Home Office Presenting Officer
DECISION AND REASONS (R)
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The appellants are both nationals of Bangladesh. The first appellant is the husband of Lili Akther. The second appellant is their son. The second appellant was born on 1st July 2000. Lili Akther was issued with a Certificate of entitlement to a Right of Abode in the UK and she arrived in the UK on 10th May 2017. On 24th June 2018 the appellants applied for entry clearance to the UK. Both applications were refused by the respondent for reasons set out in two separate decisions dated 14th September 2018. The appellants’ appeals against those decisions were dismissed by First-tier Tribunal Judge Kemp MBE for reasons set out in a decision promulgated on 3rd September 2019.
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For reasons set out in my error of law decision promulgated on 4th November 2020, I found the decision of Judge Kemp is vitiated by material errors of law and must be set aside. Although I was urged by the parties to remit the appeal for rehearing before the First-tier Tribunal, I noted in my error of law decision that no application had been made by the appellants in accordance with Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 and in view of the narrow issues that remain to be determined, I directed that the appeal be listed for a resumed hearing for the Upper Tribunal to remake the decision.
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The matter was listed for a resumed hearing before me on 5th January 2021. The hearing before me again took the form of a remote hearing using Skype for Business. Neither party objected. Neither the appellants, who are both in Bangladesh, nor their sponsor joined the hearing remotely. Mr Shuhag Uddin, a relative of the appellants and sponsor joined the hearing remotely. He had been called by the appellants as a witness before the First-tier Tribunal. I sat at the Birmingham Civil Justice Centre. I was addressed by the representatives in exactly the same way as I would have been if the parties had attended the hearing together. As before, I was satisfied that it was in the interests of justice and in accordance with the overriding objective to proceed with a remote hearing because of the present need to take precautions against the spread of Covid-19, and to avoid delay. At the end of the hearing I was satisfied that both parties had been able to participate fully in the proceedings.
The background
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As I have set out in my ‘error of law’ decision, the application made by the first appellant was refused because the respondent was not satisfied that the first appellant meets the eligibility relationship requirement, the eligibility financial requirement and the eligibility English language requirement set out in Appendix FM of the Immigration Rules. The application made by the second appellant was refused because the respondent was not satisfied that the second appellant is related as claimed to the individuals named as his parents on a birth certificate relied upon by the second appellant. Neither was the respondent satisfied that the eligibility relationship requirements set out in section E-ECC.1.6 of Appendix FM are met by the second appellant. Additionally, the respondent was not satisfied that the second appellant meets the eligibility financial requirement set out in Appendix FM of the Immigration Rules.
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At the hearing of the appeal before the First-tier Tribunal, Judge Kemp heard evidence from the appellant’s sponsor and two witnesses. He found the evidence to be credible and he was satisfied as to the genuineness of the claimed relationships between the sponsor and both appellants. He found that the marriage between the first appellant and the sponsor is a subsisting one and the relationship requirements set out in paragraphs E-ECP.2.1 to E-ECP.2.10 are met by the first appellant.
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It was uncontroversial that the appellants were unable to meet the financial requirements set out in Appendix FM when the applications for entry clearance were made. Judge Kemp considered the evidence adduced at the hearing of the appeal and was satisfied that the sponsor has demonstrated she is now able to meet the financial threshold set out under the immigration rules.
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The remaining requirement to be met by the first appellant for entry clearance was the English language requirement set out in paragraph E-ECP.4.1. of Appendix FM of the immigration Rules. The first appellant claimed that he is exempt from the English language requirement because, at the date of application, he had a disability which prevents him from meeting the requirement. Alternatively, he claimed there are exceptional circumstances which prevent the first appellant from being able to meet the requirement prior to entry to the UK.
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For the reasons set out in my ‘error of law’ I concluded decision Judge Kemp erred in his consideration of whether:
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The first appellant has a disability which prevents him from meeting the English language requirement.
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The second appellant’s mother has had and continues to have sole responsibility for the second appellant’s upbringing.
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There are serious and compelling family or other considerations which make exclusion of the second appellant undesirable and suitable arrangements have been made for his care.
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There are exceptional circumstances which would render the refusal of entry clearance, or leave to enter, a breach of Article 8 ECHR, because such refusal would result in unjustifiably harsh consequences for the appellants or another family member whose Article 8 rights it is evident would be affected by a decision to refuse the application.
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Re-making the decision
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The only ground of appeal available to the appellants pursuant to s84(2) of the 2002 Act is that the respondent’s decision is unlawful under s6 of the Human Rights Act 1998. The burden of proof is upon the appellants to show, on the balance of probabilities, that they have established a family and/or private life, and that the refusal of leave to enter would interfere with that right. It is then for the respondent to justify any interference caused. The respondent’s decision must be in accordance with the law and must be a proportionate response in all the circumstances.
The issues
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At the outset of the hearing before me, Mrs Aboni confirmed that the respondent accepts that the appellants are related to the sponsor as claimed. She also accepts that First-tier Tribunal Judge Kemp found that the financial requirements set out in the rules were met by the appellants at the date of the hearing. Mr Jafferji confirmed that it is common ground that the financial requirements were not met at the time of the application.
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The parties agree that insofar as the requirements set out in the immigration rules are concerned, the only issue insofar as the first appellant is concerned is whether the English Language Requirement is met. If the English Language requirement is met by the first appellant, the second appellant’s case is straightforward, because the second appellant was under the age of 18 at the date of application and it must follow that the relationship requirements set out in Section E-ECC.1.6(a) is met. However, if the English Language requirement is not met by the first appellant the Tribunal will need to consider whether the second appellant can satisfy the relationship requirements set out in Section E-ECC.1.6(b) and (c), or alternatively, can satisfy the requirements for indefinite leave to enter the UK set out in paragraph 297 of the Immigration rules. If the requirements set out within those rules are not met, the Tribunal will have to consider whether there are exceptional circumstances which would render the refusal of entry clearance or leave to enter, a breach of Article 8 ECHR, because such refusal would result in unjustifiably harsh consequences for the appellants or their sponsor.
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As I set out in my error of law decision, there was no Notice provided by the appellants or their representatives under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 inviting the Tribunal to admit further evidence that was not before the First-tier Tribunal. After hearing submissions from the parties, I reserved my decision and informed the parties that my decision would follow in writing. This I now do.
The submissions
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Mr Jafferji relied upon a skeleton argument dated 5th January 2021. The first appellant relies upon the medical evidence from Professor Gopal Sankar Dey (“Professor Dey”) and Dr Mesbah Uddin...
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