Upper Tribunal (Immigration and asylum chamber), 2021-12-22, HU/16641/2019
| Jurisdiction | UK Non-devolved |
| Date | 22 December 2021 |
| Published date | 10 January 2022 |
| Hearing Date | 20 October 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/16641/2019 |
Appeal Number: HU/16641/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/16641/2019 (v)
THE IMMIGRATION ACTS
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Heard by a remote hearing |
Decision & Reasons Promulgated |
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On the 20 October 2021 |
On the 22 December 2021 |
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Before
UPPER TRIBUNAL JUDGE REEDS
Between
b U
(anonymity direction made)
Appellant
AND
the entry clearance officer
Respondent
Representation:
For the Appellant: Mr Bashir, legal representative acting on behalf of the appellant.
For the Respondent: Ms Aboni, Senior Presenting Officer
DECISION AND REASONS
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The hearing before the Upper Tribunal is a resumed hearing following the decision of the Upper Tribunal promulgated on 11 May 2021. In that decision I set out the reasons for reaching the conclusion that the decision of the FtTJ (Judge Hillis) (hereinafter referred to as the “FtTJ”) involved the making of an error on a point of law, the FtTJ having dismissed the appeal against the decision of the respondent made on the 31 October 2019 refusing his application for entry clearance made on the 23 April 2019.
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The FtTJ did not make an anonymity order and no application was made for such an order before the Upper Tribunal. However for the purposes of this decision, the Tribunal is required to consider evidence relating to a minor including medical evidence and I have therefore exercised my discretion to make an anonymity direction.
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I make a direction regarding anonymity under Rule 14 of the Tribunal Procedure (Upper Tribunal Rules) Rules 2008 as the proceedings relate to the circumstances of a minor. Unless and until a Tribunal or court directs otherwise the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or his family members. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
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I intend to refer to the appellant as “BU” or “the appellant”, his wife as the “sponsor” as she has been referred to by the advocates, and “S” for the minor child. No disrespect for the parties is intended by the use of initials but that it is for ease of reference during this decision.
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This decision should be read alongside the earlier decision promulgated on 11 May 2021 setting out the position of the parties and the decision reached by the Upper Tribunal concerning error of law.
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The hearing took place on 20 October 2021, by means of Microsoft teams. Upper Tribunal Judge Allen made an order on 10 September 2021 that the hearing should proceed by way of a remote hearing conducted by Microsoft teams. Following that direction no objection to that method of hearing was raised by either party. At the hearing on the 20 October both parties confirmed their consent to proceeding by this method of hearing and agreed that all issues could be determined in a remote hearing. Mr Bashir, legal representative appeared on behalf of the appellant and Ms Aboni, Senior Presenting Officer appeared on behalf of the respondent. Whilst the appeal was conducted from the hearing centre, the advocates attended remotely via video as did the sponsor who was able to see and hear the proceedings being conducted and who gave oral evidence. There were no issues regarding sound, and no substantial technical problems were encountered during the hearing, and I am satisfied that the sponsor was able to understand and follow the proceedings and was able to give her oral evidence and both advocates were able to make their respective cases by the chosen means.
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I am grateful to Mr Bashir and Ms Aboni for their oral submissions.
The factual background:
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In the error of law decision, it had been noted that the tribunal had not been provided with all of the earlier decisions made by the Entry Clearance Officer (hereinafter referred to as the “ECO”) or the decisions reached by previous judges. Therefore a direction was made for the parties to file and serve those decisions. The respondent filed a short chronology dated 14 May 2021 and whilst referring to previous decision made by the ECO only provided one copy decision dated 12 March 2006. Other decisions were exhibited in the respondent’s bundle. The appellant’s representative also provided a copy of previous decisions made by the tribunal but not all of the ECO decisions. The following summary is taken from those documents.
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The appellant is a national of Bangladesh. On 2 May 2005 he applied for a visa as a working holiday maker which was refused by the entry clearance officer on 12 May 2005 because he was not satisfied that the appellant would leave the UK at the end of two years. The appellant appealed that decision, and the decision was overturned on appeal in a decision made on 9 January 2006. However subsequent enquiries relating to his employment claims in Bangladesh revealed new evidence. Called the number given on the letter resulted in a negative response. The ECO reach the conclusion that the information in the employment letter was false. The application was therefore refused under paragraph 320(21) of the immigration rules.
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The appellant lodged permission to appeal the refusal of 12 March 2006 and it is recorded in the chronology filed on behalf of the respondent that the appellant’s appeal was allowed on a date in October 2006. No further information is provided.
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The appellant was therefore granted entry clearance as a working holiday maker for the period 16 November 2006 to 16 November 2008.
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The appellant entered the United Kingdom on 16 November 2006. Following the expiry of his entry clearance on 16 November 2008 the appellant remained in the United Kingdom overstaying his leave.
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On 29 September 2009 he applied to the Home Office for a certificate of approval for marriage. The application was later withdrawn.
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On 10 January 2010, the appellant underwent an Islamic marriage with his spouse J.
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On 29 July 2010, the appellant was encountered at Heathrow airport and was served papers as an overstayer. He voluntarily left the UK on that same day.
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The appellant states that he returned to Bangladesh and his wife came with him.
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On 6 August 2010, the appellant registered the marriage in Bangladesh.
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On a date unknown the appellant’s spouse returned to the UK.
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On 9 August 2010, the appellant applied for entry clearance as the husband of his spouse. The application was refused on 24 November 2010 under paragraph 320 (11) as well as paragraph 281 (v) and 281 (iv). There is no copy decision but the reasons for refusal are set out in the decision of Judge McDonald. It is recorded that the appellant did not leave the UK when his visa expired on 16 November 2008 and applied for a certificate of approval for marriage on 29 September 2009 10 ½ months after his leave and expired. The appellant remained in the UK after his entry conditions at expired and had made no attempt to regularise his stay. He had not shown how he had maintained himself during the period. Whilst the appellant had admitted his immigration history and left the UK voluntarily and was now seeking to re-enter the UK through proper channels he previously shown a clear disregard for the immigration rules and not provided a credible explanation for his failure to comply with the previous entry conditions or how he was able to maintain himself during the period he remained in the UK without leave. Therefore the appellant has significantly contrived to frustrate the intentions of the immigration rules and therefore paragraph 320 (11) applied. As to paragraph 281, the appellant had not produced sufficient evidence of the employment of the sponsor or evidence that the sponsor’s parents are meeting their mortgage payments on the property and therefore is not satisfied that the appellant would be accommodated adequately.
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On 26 December 2010, their child S was born in the UK.
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On 14 December 2010, the appellant lodged an appeal.
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On 8 August 2011 the appeal was dismissed by Judge MacDonald. In his decision promulgated on 5 August 2011, the FtTJ made the following findings:
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the appellant had not established that the sponsor was in employment given the lack of evidence of earnings paid into her bank account and tax and NI payments. In the alternative even if on some form of unpaid maternity leave, the sponsor gave no indication when she intended to return to work.
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The judge was not satisfied that the job offer for the appellant was a genuine vacancy or that the appellant had a necessary ability to fill such vacancy (at paragraph 39).
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The judge found that the evidence as to where and how the...
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