Upper Tribunal (Immigration and asylum chamber), 2021-08-17, HU/11162/2019 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 17 August 2021 |
| Published date | 01 September 2021 |
| Hearing Date | 28 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/11162/2019 & Ors. |
Appeal numbers: HU/11162/2019
HU /11173/2019, HU /11177/2019 (P)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal numbers: HU/11162/2019
HU /11173/2019, HU /11177/2019 (P)
THE IMMIGRATION ACTS
|
Heard at Manchester CJC |
Decision & Reasons Promulgated |
|
On 28 July 2021 |
On 17 August 2021 |
Before
UPPER TRIBUNAL JUDGE PICKUP
Between
JJ
LJ
NJ
(ANONYMITY ORDER MADE)
Appellants
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
DECISION AND REASONS (V)
For the appellant: Mr M Murphy of Counsel, instructed by Krishmorgan Solicitors
For the Respondent: Mr A Tan, Senior Presenting Officer
This has been a remote hearing which has been consented to by the parties. The form of remote hearing was video by Skype (V). A face-to-face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing. At the conclusion of the hearing, I reserved my decisions and reasons, which I now give. The order made is described at the end of these reasons.
Appeal Chronology
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The appellants are husband, wife and son, each a citizen of India, with dates of birth given as 28.5.97, 13.12.83, and 5.7.09, respectively. They have appealed with permission to the Upper Tribunal against the decision of the First-tier Tribunal promulgated 23.9.19 (Judge Lewis), dismissing their linked human rights appeals against the decisions of the Secretary of State, dated 14.6.19, to refuse their applications made on 2.1.19 for leave to remain in the UK on private and family life grounds.
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The first appellant’s application was refused on suitability grounds of S-LTR under paragraph 276ADE(1)(i) on the basis that he fraudulently obtained a TOEIC English language certificate in November 2012, by using a proxy to take his test, so that his continued presence in the UK was not conducive to the public good. The respondent further considered that there were no very significant obstacles to his integration in India pursuant to paragraph 276ADE of the Rules, and no exceptional or compelling reasons to grant leave to remain outside the Rules pursuant to article 8 ECHR. The second appellant’s application was refused on the basis of no very significant obstacles under paragraph 276ADE or exceptional reasons. The third appellant’s application was refused as his parents had no leave to remain and he could not meet the requirements of paragraph 276ADE, or demonstrate exceptional reasons to remain outside the Rules.
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In summary, the grounds of application for permission to appeal complained that the judge erred in refusing an adjournment application to obtain a psychiatric report, erred in purporting he could make an assessment using his own “expertise”, failed to consider the best interests of the child, and erred in his findings in relation to the TOEIC test.
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Permission to appeal to the Upper Tribunal was granted by the First-tier Tribunal on 6.2.20, on the basis that it was considered arguable that the judge erred in failing to make a distinct assessment as to the child’s best interests. The judge granting permission considered that the First-tier Tribunal had used the correct criteria when deciding the adjournment application, and that the judge’s reference to “expertise” related only to the fact that the Tribunal would make findings of fact as to the consequences of removal for the child. Nevertheless, permission was granted on all grounds.
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In a decision made on the papers without an oral hearing, pursuant to Rule 34, promulgated on 2.7.20, Upper Tribunal Judge Jackson concluded that the decision of the First-tier Tribunal involved the making of a material error of law in relation to its assessment of the best interests of the child third appellant and on article 8 ECHR, such that it was necessary to set aside the decision. However, in doing so, Judge Jackson preserved the findings of fact made by the First-tier Tribunal between [43] to [52] inclusive of the impugned decision, as well as the findings on article 3 of the Convention on Human Rights.
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Judge Jackson issued a number of directions to both the appellants and the respondent, addressing in particular paragraph 276ADE(1)(iv) and/or section 117B of the 2002 Act, and whether the respondent considered that this was a new matter for the purpose of section 85 of the 2002 Act and whether consent was given for such a new matter to be considered in the remaking of the decision in the appeal.
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The appellants responded to the directions on 13.7.20, confirming that they sought to rely on paragraph 276ADE(1)(iv) and s117B, submitting further documentation relating to the third appellant.
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The respondent’s response to the directions, dated 20.7.20, accepts that the child third appellant had by then lived in the UK continuously for 7 years but contended that the appellants had not established that it would be unreasonable to expect the child to leave the UK with his parents, that it would be in his best interests to do so, and that there are no sufficiently compelling circumstances to justify a grant of leave outside the Rules.
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The resumed hearing was listed as a remote hearing before Upper Tribunal Judge Jackson on 23.12.20. However, there were difficulties for the respondent in accessing the case file electronically and the appellants did not have access to sufficient IT facilities to be able to participate in the remote hearing. Judge Jackson adjourned the hearing, relisting the matter for a face-to-face hearing at Manchester Civil Justice Centre (CJC).
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Pursuant to the Transfer Order made on 6.7.21, the remaking of the decision in the appeal has been allocated to me and listed at Manchester CJC on 28.7.21.
Documentary Evidence
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Outside of the time limits set by Judge Jackson and only a few days before the resumed hearing, the Upper Tribunal has received electronic copies of the following:
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The First-tier Tribunal appeal bundle (203 pps), a paper copy of which is with the Tribunal’s case file;
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A second bundle (62 pps);
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A third bundle (22 pps), including further evidence and witness statements
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I also have received copies of KO (Nigeria) [2018] UKSC 53, EV (Philippines) [2014] EWCA Civ 874, and, from Mr Tan, the recent Court of Appeal decision in NA (Bangladesh) v SSHD [2021] EWCA Civ 953.
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I confirm that all documents now before the Upper Tribunal and relied on by either party, together with the oral evidence and submissions, have been carefully considered in the round in the context of the whole before reaching any findings of fact. That is so whether or not documents have been specifically referenced below.
Relevant Background
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The relevant background can be summarised as follows.
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Each of the appellants was born in India. The third appellant is now 12 years of age.
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The second appellant (wife and mother) came to the UK in 2009 with entry clearance as a Tier 4 student, later extended to September 2013. In April 2010, the first appellant (husband and father) was granted a Tier 4 partner visa, also extended to September 2013. The third appellant (son) was granted entry clearance as a visitor to join his parents for a 6 month period from July 2012. Although it was not clear from the documentary evidence, it transpired during the hearing before me that up until the visit visa when the second and first appellants were both in the UK, the third appellant lived with his grandmother in India.
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Towards the end of 2012, though the precise date is not clear, the first and second appellant returned to India. However, in May 2013, the first appellant was granted entry clearance as a Tier 1 Entrepreneur valid to September 2016 and the second and third appellants were granted dependent visas in line with their husband/father. The three appellants entered the UK together on 17.6.13. In January 2014, they all returned to India for a family wedding, staying approximately two weeks before returning to the UK.
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On the expiry date of their visas in September 2016, the appellants sought leave to remain outside the Rules, which was refused in October 2017. The first appellant attempted to judicially review this decision but permission was refused on the papers in May 2018 and orally in June 2018. A further application for leave to remain was refused in November 2018. There then followed the application for leave to remain, the refusal of which on 14.6.19 is the subject matter of this appeal.
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It follows from the above that the appellants’ immigration status has always been precarious and they have been unlawful overstayers since the expiry of their visas in September 2016.
The First-tier Tribunal Decision
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In relation to the adjournment application made at the First-tier Tribunal appeal hearing for a psychological report on the impact on the third appellant of removal to India, this was refused on the basis that that application was made late, was speculative, and because the First-tier Tribunal considered that it had sufficient material upon which to fairly determine the appeals together with the Tribunal’s own expertise of such matters.
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The First-tier Tribunal dismissed the appeals, finding that the first...
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