Upper Tribunal (Immigration and asylum chamber), 2021-10-22, [2021] UKUT 272 (IAC) (Akter (appellate jurisdiction, E and R challenges))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President |
| Status | Reported |
| Date | 22 October 2021 |
| Published date | 02 November 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | appellate jurisdiction, E and R challenges |
| Hearing Date | 13 July 2021 |
| Appeal Number | [2021] UKUT 272 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Akter (appellate jurisdiction; E and R challenges) [2021] UKUT 00272 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 13 July 2021 |
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………………………………… |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT
Between
MAHMUDA AKTER – FIRST appellant
MIZANUR RAHMAN – SECOND appellant
MARSHIAT RAHMAN – THIRD appellant
(ANONYMITY DIRECTIONS NOT MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellants: Mr M West, instructed by JKR Solicitors
For the respondent: Mr T Lindsay, Senior Home Office Presenting Officer
(1) GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630 is not authority for the proposition that an appellate court or tribunal has a free-standing duty, derived from section 6 of the Human Rights Act 1998 (public authority not to act incompatibly with ECHR right), to disturb a decision of a lower tribunal. The jurisdiction of the appellate court or tribunal is governed by sections 12 and 14 of the Tribunals, Courts and Enforcement Act 2007, which depends on the lower tribunal having made an error of law before its decision can be disturbed on appeal.
(2) A party who wishes to submit that a decision of a tribunal which is otherwise free from legal error should be disturbed on appeal on the basis identified by Carnwath LJ in E and R v Secretary of State for the Home Department [2004] EWCA Civ 49 should do so clearly, when seeking permission to appeal on that basis.
(3) In deciding whether the principles in Ladd v Marshall [1954] 1 WLR 1489, as applied by E & R, should be modified in exceptional circumstances, the ability to make fresh submissions to the Secretary of State, pursuant to paragraph 353 of the immigration rules, is highly material to the question of whether those principles should be diluted.
DECISION ON APPLICATION FOR PERMISSION TO APPEAL
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This our decision on an oral application for permission to appeal against the decision of the First-tier Tribunal. It follows the quashing by the Court of Appeal of the refusal by the Upper Tribunal of permission to appeal the decision of the First-tier Tribunal, which dismissed the appellants’ appeals against the decision of the Secretary of State to refuse their human rights claims.
A. THE APPELLANTS
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The first and second appellants are wife and husband and the third appellant is their elder daughter, born in 2010. Another daughter, M, was born in November 2015.
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The second appellant arrived in the United Kingdom in December 2003 on a one year work permit. He subsequently overstayed. The first appellant arrived in October 2009 as a student. She applied unsuccessfully for further leave to remain on human rights grounds but by 13 July 2016 she had exhausted her rights of appeal.
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In August 2017, the three appellants made an application for leave to remain, together with a human rights claim. The application and claim were refused by the respondent on 26 July 2018 and the appellants appealed to the First-tier Tribunal against the refusal of the claims.
B. THE APPELLANTS’ APPEAL TO THE FIRST-TIER TRIBUNAL
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The appeals were heard at Hatton Cross on 15 March 2019 by First-tier Tribunal Judge Bowler. Before the judge, the case for the appellants was that it was in the third appellant’s best interests to remain in the United Kingdom, with significant weight being given to the fact that she had lived there for more than seven years. It was also submitted that each of the appellants had a strong private life in the United Kingdom, as well as a family life with the extended family of the second appellant.
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The First-tier Tribunal Judge considered the submissions and evidence, which included oral evidence from the first and second appellants and various other individuals. The judge’s decision was promulgated on 11 April 2019. In examining the position of the family comprising the three appellants and M, the judge noted at paragraph 54 of her decision, that M “is only 3 years old. She was also born in the UK but has been here for less than seven years now and her life will inevitably be almost entirely focused on her parents and sister”. At paragraph 63, the judge noted that M had Bengali spoken to her as a baby and she had spent less time than the third appellant away from her family. At paragraph 63, the judge found it “inevitable that she will be developing some initial understanding of the language”.
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At paragraph 66, the judge noted that the third appellant had eczema and that she was on medication for this condition. Although the first appellant claimed that the third appellant would face problems in Bangladesh owing to her eczema, as a result of the heat in that country, the judge noted that the first appellant’s doctor had made no reference to any such problems, were the family to move to Bangladesh.
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Having completed a thorough examination of the evidence, by reference to relevant legislation and case law, the First-tier Tribunal Judge dismissed the appellants’ appeals against the refusal of their human rights claims.
C. THE GROUNDS OF CHALLENGE TO THE DECISION OF THE FIRST-TIER TRIBUNAL
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On 25 April 2019, the appellants applied to the First-tier Tribunal for permission to appeal. They did so on five grounds. Ground 1 contended that the judge had erred in law in her analysis of what the best interests of the third appellant comprised and that no “significant weight” had been given to the fact that the third appellant had lived in the United Kingdom for over seven years. Ground 2 asserted that the judge had erred in relation to the application of section 117B(6) of the Nationality, Immigration and Asylum Act 2002, in concluding that it would not be unreasonable to expect the third appellant to leave the United Kingdom. Ground 3 submitted that the judge’s approach in respect of section 117B(6) in relation to the first and second appellants was materially flawed. Ground 4 challenged the judge’s assessment of the matters to which section 117B(1) to (5) requires consideration to be given. Ground 5 submitted that the judge’s Article 8 ECHR proportionality assessment was flawed. Nowhere in the grounds was there any specific reference to any medical diagnosis in respect of the third appellant.
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Following the refusal of permission by the First-tier Tribunal, the appellants applied to the Upper Tribunal for permission to appeal. The grounds that accompanied Form IAUT-1 were the five grounds just described. Before the articulation of those grounds, their drafter wrote the following:-
“4. It may be pertinent to mention, though [it] may not be relevant at this stage, that just the day after the hearing the child appellant … was admitted to Royal London Hospital on 16/03/2019 with one-month history of vomiting, poor oral intake and fatigue. She remained admitted there until 05 April 2019. After various medical examinations she was diagnosed with abdominal pain, hypercalcemia, and acute kidney injury. She is still on follow up treatment and weekly review. She is prescribed with various medications, and a weekly blood test. A community nurse visits her once a week (Friday), when she is injected with METHOTREXATE. (Please see enclosed Hospital Discharge letter date 05 April 2019 enclosed as ENCLOSURE-A).
5. The evidence of this medical condition of the child could not be introduced before the hearing because she was admitted to hospital just after the hearing day and her medical conditions were diagnosed after that. It is our instruction that if permission is granted the appellants would seek permission under rule 15(2A) of the Tribunal Procedure rules to admit documents/evidence of her medical condition, if the matter proceeds to a rehearing.”
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The renewed application for permission was dated 12 June 2019. On 17 October 2019, Upper Tribunal Judge Owens refused permission to appeal. She dealt with the grounds as follows:-
“3. The thrust of the challenge is that the Judge erred in considering the analysis of the best interests of the child; erred in the assessment of reasonableness, erred in taking into account the parent’s immigration history when considering KO (Nigeria) & Ors v SSHD [2018] UKSC 35; erred in the approach to section 117B(6); and erred in the approach to the proportionality exercise under Article 8 ECHR.
4. Contrary to the assertion in the grounds, it cannot be argued that the Judge did not carry out a proper assessment of the best interests of the child which at [10] and [48] was noted to be a primary consideration. When considering this issue and the issue of reasonableness, the Judge took into account all of the relevant factors including the child’s age, education, health, her connections to her extended family, her linguistic, cultural and social ties to Bangladesh and the conditions in which she would be living in Bangladesh. The Judge unarguably gave adequate and sustainable reasons for finding that overall, the best interests of the child lay in remaining as a family unit with her parents, particularly given the...
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