Upper Tribunal (Immigration and asylum chamber), 2023-05-21, HU/02548/2021 & HU/02549/2021
| Appeal Number | HU/02548/2021 & HU/02549/2021 |
| Hearing Date | 26 April 2023 |
| Date | 21 May 2023 |
| Published date | 07 June 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: UI-2022-005066, UI-2022-005067
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case Nos: UI-2022-005066 UI-2022-005067 |
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First-tier Tribunal Nos: HU/02548/2021 HU/02549/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 21 May 2023
Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON
Between
(1) AKM Fahad
(2) Rezwana Ferdous
(NO ANONYMITY DIRECTION MADE)
Appellants
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr Z. Malik KC, instructed by Chancery Solicitors
For the Respondent: Ms A. Nolan, Senior Home Office Presenting Officer
Heard at Field House on 26 April 2023
DECISION AND REASONS
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By a decision dated 25 July 2022, First-tier Tribunal Judge Beg (“the judge”) dismissed the appeals against two linked decisions of the Secretary of State dated 4 March 2021, brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The appeals were brought by two citizens of Bangladesh; Mr AKM Fahad, born on 10 October 1987, and Ms Rezwana Ferdous, born on 10 February 1988. Mr Fahad, the first appellant, was the primary applicant. Ms Ferdous, his wife, was his dependent.
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The appellants now appeal against the decision of the judge with the limited permission of First-tier Tribunal Judge Komorowski. We address permission to appeal on the remaining grounds below.
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We are grateful to the appellants’ solicitors for providing a full copy of the appellants’ bundles from before the First-tier Tribunal after the hearing. We are satisfied that we have been able fully to consider Mr Malik KC’s submissions in light of all relevant materials.
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We are grateful to the Secretary of State for her rule 24 response dated 3 November 2023, and to Mr Malik for his helpful skeleton argument dated 19 April 2023, which we have considered with care.
Factual background
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The first appellant arrived in the United Kingdom on 3 September 2009 with entry clearance as a student. His leave in that capacity was extended until 30 October 2014. He made an out of time application for further leave as a Tier 2 migrant on 17 December 2014, which was granted on 20 January 2015 until 10 February 2018. The grant of leave was made on the basis that he was employed by his sponsoring employer, Vanita Malhotra trading as ‘Kamal Mahal’. On 25 February 2015, Kamal Mahal informed the Secretary of State that the first appellant had failed to commence his employment.
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What took place next is a core matter of dispute. It is the Secretary of State’s case that on 14 May 2015, the first appellant was sent a letter curtailing his Tier 2 leave under para. 323A(a)(i)(1) of the Immigration Rules. The appellants’ case is that the first appellant did not receive the letter and was unaware of the purported curtailment until he received another letter from the Home Office informing him that he was without leave in June 2016. The effective date of curtailment is significant because, on the appellants’ case, if service did not take place until the first appellant’s claimed date of knowledge, their subsequent applications for leave to remain were in-time (which, in turn, says Mr Malik, could have had an impact on the length of the first appellant’s continuous lawful residence).
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Thereafter, the appellant claims to have been advised by an immigration adviser or solicitor, Mr Dey of Lexpert Solicitors LLP, to make a series of further human rights claims to the Secretary of State. He submitted an application on 17 June 2016, which was refused on 13 April 2017 in circumstances that did not attract an in-country right of appeal. On 29 April 2017, he made a further application, which was refused in circumstances that did not attract a right of appeal at all, on 4 December 2017. On 20 December 2017, he submitted a further application, which he varied on 20 June 2018, and again on 8 August 2018, to an application for indefinite leave to remain on an exceptional basis outside the rules, with the second appellant as his dependent. The latter application was refused by the Secretary of State, initially on 18 July 2019 with no right of appeal. It was reconsidered on 4 March 2021 in circumstances that attracted a right of appeal, and it was that refusal decision that was under appeal before the judge. We refer to the decision of 4 March 2021 as “the refusal decision”.
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In the refusal decision concerning the first appellant, the Secretary of State concluded that there were no circumstances that warranted a grant of indefinite leave outside the rules. The first appellant’s mental health conditions, which he had raised in the application, did not meet the threshold for Article 3 of the European Convention on Human Rights (“the ECHR”). There was no evidence that any required treatment would not be available in Bangladesh. The first appellant’s relationship with the second was not eligible for consideration under the partner route, and nor could he succeed on the basis of his private life. He would not face very significant obstacles to his integration in Bangladesh, and there were no exceptional circumstances such that it would be unduly harsh to refuse the application.
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The second appellant’s immigration history is that she arrived in the UK on 15 March 2012 with entry clearance as a dependent of a student. She held leave continuously until 13 June 2016, when it was curtailed. In June 2017, she gave birth to a girl, N, with the first appellant.
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The Secretary of State’s decision of 4 March 2021 concerning the second appellant was in largely similar terms to that concerning her husband. Since the issues on appeal to the Upper Tribunal focus primarily on the first appellant’s immigration history, we do not need to address the reasons for the second appellant’s refusal in greater depth.
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The appellants appealed to the First-tier Tribunal. The hearing was originally listed to be heard on 6 May 2022, but it was adjourned for the Secretary of State to consider whether to grant her consent to a “new matter” being heard in the form of the first appellant’s submissions that he had accrued ten years’ continuous lawful residence for the purposes of para. 276B of the Immigration Rules. The Secretary of State provided her consent, and the appeal was effective on 25 July 2022. The appellants were represented by Chancery solicitors and by counsel (not Mr Malik, who did not appear below).
Decision of the First-tier Tribunal
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Insofar as the issues on appeal to the Upper Tribunal are concerned, the judge made the following relevant findings of fact. First, the judge found that the first appellant had received the curtailment letter curtailing his leave on 18 May 2015 (para. 31). Secondly, she rejected the first appellant’s case that he had received negligent advice from Mr Dey about challenging the curtailment (paras 34 to 36). Thirdly, she found that the appellants would not face very significant obstacles to their integration in Bangladesh for the purposes of para. 276ADE(1)(vi) of the Immigration Rules.
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As to the appellants’ prospective integration in Bangladesh, they had claimed to have lost contact with their families, and to have previously received threats from their families as a result of their marriage being disapproved. The judge rejected those accounts, finding that the appellants were not credible witnesses. The second appellant claimed that one of her uncles was the Deputy Attorney General in Bangladesh, and that her mother had a senior role working for a university, yet there was no corroborative evidence to that effect. There was “no credible evidence” that either appellant had been threatened. They had not claimed asylum.
Issues on appeal
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There are four grounds of appeal to the Upper Tribunal.
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First, whether the judge erred by failing to determine the appeals by reference to Article 3 ECHR (prohibition of cruel, inhuman and degrading treatment).
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Secondly, whether the judge erred in finding that the May 2015 curtailment letter had been validly served.
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Thirdly, whether the judge’s logic concerning the poor legal advice was flawed.
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Fourthly, whether the judge’s credibility-based reasons for rejecting the appellants’ claimed risk of harm in Bangladesh were adequately reasoned.
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First-tier Tribunal Judge Komorowski granted permission in relation to ground 4 only. Mr Malik contends that, notwithstanding that purported limited grant of permission, pursuant to EH (PTA: limited grounds; Cart JR) Bangladesh [2021] UKUT 0117 (IAC), the appellant enjoys permission to appeal on all grounds in any event, in the absence of a direction limiting the grounds of appeal. In addition, the appellants applied to renew their application for permission to appeal to the Upper Tribunal on grounds 1 to 3. That application remained pending at the date of the hearing.
While we doubt whether EH is of any import in a case where the First-tier Tribunal has granted permission on limited grounds, we informed the parties at the hearing that we...
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