Upper Tribunal (Immigration and asylum chamber), 2023-03-09, IA/14883/2021
| Appeal Number | IA/14883/2021 |
| Hearing Date | 10 January 2023 |
| Published date | 24 March 2023 |
| Date | 09 March 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-003511
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-003511 First-tier Tribunal No: HU/56144/2021 IA/14883/2021 |
|
|
|
THE IMMIGRATION ACTS
Decision & Reasons Issued
On the 09 March 2023
Before
UPPER TRIBUNAL JUDGE BLUNDELL
and
DEPUTY UPPER TRIBUNAL JUDGE COTTON
Between
MOULANA KAMAL UDDIN
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: In person
For the Respondent: Ms Isherwood, Senior Presenting Officer
Heard at Field House on 10 January 2023
DECISION AND REASONS
-
The appellant appeals, with permission granted by First-tier Tribunal Judge Hollings-Tennant, against the decision of First-tier Tribunal Judge Lucas (“the judge”), who dismissed his appeal against the respondent’s refusal of his human rights claim.
Background
-
The appellant is a national of Bangladesh who was born on 4 August 1965. He entered the United Kingdom as a visitor in February 2009 and overstayed upon the expiry of his leave to enter.
-
On 9 November 2020, the appellant made a human rights claim in which he submitted, in summary, that he had two daughters and grandchildren in the UK and that he would prefer to remain here, rather than returning to his wife and son in Bangladesh. There was some reference to his health and to his not having worked since he entered the UK. The appellant also stated that he would be at risk on return to Bangladesh for political reasons.
-
The respondent refused the application on 29 September 2021. She did not accept that there would be very significant obstacles to the appellant’s re-integration to Bangladesh because he had lived there for the first 43 years of his life and had a wife and son there. It was not accepted that the appellant’s separation from his family in the United Kingdom would be in breach of Article 8 ECHR or that his health conditions (diabetes and high blood pressure) were such as to render his removal contrary to Article 3 ECHR. The respondent discounted the appellant’s assertion that he would be at risk on return to Bangladesh because he had confirmed that he did not wish to claim asylum.
The Appeal to the First-tier Tribunal
-
The appellant appealed to the FtT and his appeal came before the judge, sitting at Taylor House on 22 June 2022. The appellant was represented by Mr Gajjar of counsel, the respondent was represented by Mr Iqbal, also of counsel. The judge heard oral evidence from the appellant and his two daughters and submissions from the representatives before reserving his decision.
-
In his reserved decision, the judge rehearsed the evidence and the submissions before turning, in nineteen sentences, to explain the basis upon which he had decided that the appellant was unable to meet the Immigration Rules or to make out a case on Article 3 or 8 ECHR grounds.
The Appeal to the Upper Tribunal
-
The appellant sought and was granted permission to appeal on three grounds. By the first ground of appeal, it was submitted that the judge had given inadequate reasons for finding that there were no very significant obstacles to the appellant’s re-integration to Bangladesh. By the second, it was submitted that the judge had reached an irrational conclusion in relation to the appellant’s ties to his family in Bangladesh. By the third, it was submitted that the judge had failed to apply the law correctly in relation to paragraph 276ADE(1)(vi) of the Immigration Rules. Judge Hollings-Tennant considered each of these points to have arguable merit.
-
Shortly before the hearing, the appellant’s solicitors indicated that they were not in funds and that the appellant would be attending in person. An interpreter was requested for the appellant.
-
At the outset of the hearing, we alerted Ms Isherwood to the fact that we had concerns about the judge’s decision. With characteristic frankness, she accepted that the judge’s decision was flawed for the reasons described in the grounds but she submitted that no other decision could properly have been reached. There was, she submitted, simply no case under the Immigration Rules or the ECHR. The appellant was merely an overstayer who wished to remain with his daughters and who had availed himself of NHS services impermissibly. The appellant had accepted before the judge that, in relation to his claim of fear of attack because he is a supporter of an opposition party in Bangladesh, there were ‘no cases against him’ and that he was not ‘a leader’. His wife and child were in Bangladesh, and it was not easy to see why his return might conceivably be in breach of the ECHR.
-
The appellant responded briefly through the Sylheti interpreter. He said that he was a member of a teacher’s association in the UK and that he taught students on a voluntary basis. He had distributed leaflets for a Housing Association and had been given an award for this. He had nowhere to stay in Bangladesh as his house had been repossessed. His wife was living with her brother.
-
We reserved our decision at the end of the submissions.
Analysis
-
It is clear – and it was quite rightly accepted by Ms Isherwood – that the judge’s decision is vitiated by legal error. The respondent’s refusal letter, the appellant’s skeleton argument and the respondent’s review all made reference to paragraph 276ADE(1)(vi) of the Immigration Rules. It was clearly submitted to the judge, therefore, that the issue which arose under the Immigration Rules was whether the appellant would face very significant obstacles to his integration into the country to which he would have to go if required to leave the UK. As is well known, guidance on the threshold presented by the test of ‘very significant obstacles’ was given in Parveen v SSHD [2018] EWCA Civ 932 and guidance on the concept of integration was given in SSHD v Kamara [2016] EWCA Civ 813; [2016] 4 WLR 152.
-
There is no reference to paragraph 276ADE(1)(vi) in the judge’s decision. There is reference to the test of ‘very significant obstacles’ in the opening paragraphs of the decision but there is no reference to that test within the judge’s analysis. There is no reference to Kamara or Parveen or to any other authority in which this provision of the Rules was construed.
-
It is obviously not necessary for a judge to cite authority or to rehearse the legislative provisions under consideration. What matters is whether the judge has demonstrably applied the correct approach and it should be assumed that a judge in a specialist jurisdiction such as this understands the law unless the contrary is shown. With respect to the judge, we cannot make that assumption in this case.
The nineteen sentences of analysis which appear in [30]-[40] of this decision appear to conflate the analysis under the Immigration Rules and that which should have taken place outside the Rules under Article 8 ECHR....
To continue reading
Request your trial