Upper Tribunal (Immigration and asylum chamber), 2023-12-14, UI-2023-004579
| Appeal Number | UI-2023-004579 |
| Hearing Date | 28 November 2023 |
| Date | 14 December 2023 |
| Published date | 29 December 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2023-004579 (HU/50686/2023)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-004579 |
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First-tier Tribunal No: HU/50686/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
14th December 2023
Before
DEPUTY UPPER TRIBUNAL JUDGE SHEPHERD
Between
Mr Humayun Kabir Chowdhury
(NO ANONYMITY ORDER MADE)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Razzaq-Siddiq, counsel
For the Respondents: Mr Terrell, Senior Home Office Presenting Officer
Heard at Field House on 28 November 2023
DECISION AND REASONS
Background
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This matter concerns an appeal against the Respondent’s decision letter of 8 January 2023, refusing the Appellant’s application made on 16 February 2022.
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The Appellant applied for leave to remain on the basis of his private life, relying mainly on the length of time he had been in the UK, amounting to over 16 years, and the ties developed during this time.
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The Respondent refused the Appellant’s claim by letter dated 8 January 2023 (“the Refusal Letter”). This set out the Appellant’s immigration history and stated that the application had been considered with reference to Article 8 of the European Convention on Human Rights (ECHR) and under Paragraph 276ADE of the UK Immigration Rules. It did not accept that the Appellant would face significant obstacles to re-integrating into life in Bangladesh as he spoke Bengali, will have retained knowledge of the life, language and culture, and support from his family in the UK could continue on return.
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The Appellant appealed the refusal decision.
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His appeal was heard by First-tier Tribunal Judge Sullivan (“the Judge”) at Hatton Cross on 18 September 2023. The Judge subsequently dismissed the appeal in her decision promulgated on 19 September 2023.
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The Appellant applied for permission to appeal to this Tribunal on eight grounds, headed/described as follows:
Ground 1: Failure to take into consideration all relevant factors and to give proper weight to those factors in coming to the conclusion that the Appellant would not face very significant obstacles to integration into Bangladesh.
Ground 2: Failure to take into consideration the Appellant’s strong ties established in the UK.
Ground 3: Erred in suggesting that A has not satisfied section 117B (2).
Ground 4: Failure to provide sufficient reasons as to how the Appellant would be able to support himself upon return to Bangladesh.
Ground 5: Failure to provide sufficient reasons as to how the Appellant would be able to integrate upon return to Bangladesh.
Ground 6: Failure to give any weight to the Appellant’s voluntary work.
Ground 7: Erred in rejecting counsel’s ‘near-miss’ argument as not persuasive and considering it irrelevant to the balancing exercise required under Article 8.
Ground 8: Failure to sufficiently take into account the Appellant’s health conditions and the subsequent consequences he would face upon return.
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Permission to appeal was granted by First-tier Tribunal Judge Dainty on 17 October 2023, stating:
“1. The application was made in time.
2.The grounds assert that the judge failed to take into consideration relevant factors and/or give proper weight as regards significant obstacles, failed to take into account strong ties in the UK erred in relation to s117B(2), failed to give sufficient reasons as to how he could support himself in and/or integrate in Bangladesh, failed to give weight to voluntary work, rejecting the bear miss argument and failing to take into account health conditions.
3.It is arguable that the judge gave insufficient reasons as to very significant obstacles. It is also arguable that there is an absence of “balancing” within the article 8 analysis. The question is not whether the near miss succeeds under the rules but what weight it is to begiven in the balance. It is not clear from the reasons given that the judge has actually balanced the private life and long residence in the UK against the admittedly quite powerful factor of the residence being precarious/unlawful. Even if the judge came down in favour of the latter a balancing exercise is to be carried out.”
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The Respondent did not file a response to the appeal.
The Hearing
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The matter came before me for hearing on 23 November 2023 at Field House.
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Mr Razzaq-Siddiq attended for the Appellant and Mr Terrell attended for the Respondent.
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Mr Razzaq-Siddiq submitted that the Judge gave insufficient reasons for finding there were no significant obstacles to integration, and recited the obstacles that had been alleged. He also said there was a total absence of a balancing exercise for article 8.
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I asked whether the latter point had been raised in the written grounds of appeal. He said no, it comes from paragraph 3 of the grant of permission. He referred to [22] of the decision and said the Judge was under a duty to weigh in the balance the Appellant’s interest on one side and the public interest on the other; in this exercise, the Judge should have considered the Appellant’s length of stay in UK, and support to his family members in the UK.
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I sought clarification as to the evidence going to each of the grounds, in answer to which Mr Razzaq-Siddiq confirmed as follows:
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Ground 1 – the evidence of assistance and support including emotional support to the Appellant’s brothers’ and sisters’ children was contained in the witness statements, as was the evidence that Bangladeshi society has changed (he confirmed there is no other specific evidence of this point).
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Ground 3 - there was no specific evidence that the Appellant speaks English but he has been here over 18 years, has worked in the catering industry and only used an interpreter on advice. He confirmed this factor could only have been neutral but said in [23] the Judge took this point against the Appellant.
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Ground 4 - he agreed that the Appellant’s ability to support himself only went to the s.117B factors such that it was neutral.
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Ground 5 - the evidence that the Appellant would struggle to find employment was only in the witness statements; there was no country evidence.
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Ground 6 – the evidence of voluntary work was in the Appellant’s first witness statement as well as letters from the council and caseworker (pages 15 and 16 Appellant’s FT bundle and para 9 skeleton argument).
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Ground 7, I asked how a ‘near miss’ argument sat with the failure to meet the rules being a weighty factor, and also how it was a near miss argument in any case, given the majority of time spent in the UK had been without leave and the rules required continuous lawful residence. Mr Razzaq-Siddiq said that the 20 requirement is in the rules, and the fact that the Appellant has spent 90% of 20 years in the UK was a factor to be considered under article 8; the Judge considered the length of time when assessing the rules [26] but not in a balancing exercise.
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Ground 8 – there was no evidence concerning medical care (and the price of this) in Bangladesh outside the witness statements; article 3 was not argued, only article 8.
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Mr Terrell said his overarching submission was that the grounds attempt to reargue the case in a materially different way to that argued before the Judge; really they amount to mere disagreement and disclose no error. He said the Judge made clear at [12] that she had taken into account all the evidence, and it is well established that it is unnecessary for a Judge to rehearse every single point forward provided they focus on the main issues and resolve the key conflicts. He submitted the Judge had reached perfectly sustainable conclusions based on the evidence; she looks at what the obstacles are and finds there are none.
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Mr Terrell proceeded to address all of the grounds individually, reiterating his main submissions and relevant case authorities in relation to each ground as appropriate. He added that simply because comment is made in the grant of permission about the lack of a balancing exercise does not give the Aappellant the right to argue it when it was not raised in the grounds. In any event, the Judge clearly does balance the Appellant’s rights against the public interest.
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Mr Razzaq-Siddiq briefly replied to say that even if reasons were given by the Judge, they were insufficient, and she did not take into account the Appellant’s voluntary work at all.
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At the end of the hearing, I reserved my decision.
Discussion and Findings
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I remind myself of the important guidance handed down by the Court of Appeal that an appellate court must not interfere in a decision of a judge below without good reason. The power of the Upper Tribunal to set aside a decision of the First-tier Tribunal and to proceed to remake the decision only arises in law if it is found that the tribunal below has made a genuine error of law that is material to the decision under challenge.
I deal first with the issue of whether the Judge carried out a balancing exercise for the purposes of article 8. I cannot see that the written...
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