Upper Tribunal (Immigration and asylum chamber), 2018-03-06, IA/34733/2014 & Ors.

JurisdictionUK Non-devolved
Date06 March 2018
Published date22 March 2018
Hearing Date16 February 2018
CourtUpper Tribunal (Immigration and Asylum Chamber)
StatusUnreported
Appeal NumberIA/34733/2014 & Ors.

Appeal Number: IA/34733/2014

IA/34736/2014

IA/34737/2014



Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/34733/2014

IA/34736/2014

iA/34737/2014



THE IMMIGRATION ACTS



Heard at Field House

Decision & Reasons Promulgated

On 16 February 2018

On 06 March 2018




Before


UPPER TRIBUNAL JUDGE blum



Between


MS

JA

SA

(anonymity direction MADE)

Appellants

and


SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation:

For the Appellant: Mr A Eaton, Counsel, instructed by JRK Solicitors

For the Respondents: Mr D Clarke, Home Office Presenting Officer



DECISION AND REASONS

  1. These appeals come by way of a Consent Order, sealed by the Court of Appeal on 25 November 2017, limited to requiring the Upper Tribunal to consider the appellants’ article 8 appeals. It was agreed by the Secretary of State in the Statement of Reasons accompanying the Consent Order that the Upper Tribunal was required to remake the earlier decision of Deputy Upper Tribunal Judge Mailer, promulgated on 15 April 2016, in respect of the appellants’ article 8 claims. This was confirmed by way of Directions issued by Upper Tribunal Judge Jordan on 2 January 2018. Judge Jordan directed that further evidence from the parties be filed and served to enable the Upper Tribunal to determine the article 8 appeals at the resumed hearing. The parameters of the remitted appeals were confirmed by both representatives at the hearing on 16 February 2018. It was agreed by both representatives that the appeals are governed by the appeals regime in force prior to the amendments wrought by the Immigration Act 2014.

  2. The underlying decisions giving rise to these proceedings are those refusing to vary the appellants’ leave to remain in the UK, dated 19 August 2014. The appellants appealed the decisions of 19 August 2014 to the First-tier Tribunal. In a decision promulgated on 13 April 2015 the First-tier Tribunal allowed the appeals under the immigration rules. The respondent successfully sought permission to appeal the First-tier Tribunal’s decision. Deputy Upper Tribunal Judge Mailer found that the First-tier Tribunal materially erred in law in allowing the appeals under the immigration rules as the 2nd and 3rd appellants could not meet the requirements set out in paragraph 276ADE(iv) as neither had resided in the UK for a continuous period of 7 years prior to making their applications to vary their leave. The Deputy Judge proceeded to dismiss the appeals without any satisfactory consideration of the article 8 claims outside of the immigration rules. This itself constituted a material legal error, a matter recognised by both parties, and the matter was remitted back to the Upper Tribunal from the Court of Appeal by way of the Consent Order.

Background and Agreed Facts

  1. The appellants are all nationals of Bangladesh. The 1st appellant was born on 1 January 1973 and is the mother of the 2nd and 3rd appellants. The 2nd appellant is female and was born on 31 January 1999 and the 3rd appellant, who is also female, was born on 24 August 2000. At the date of the resumed hearing before the Upper Tribunal the 2nd appellant had just turned 19 and the 3rd appellant was 17 years old. Both Mr Clarke and Mr Eaton agreed that the factual summary contained in the Deputy Judge’s decision, from paragraphs 7 to 29 and 31 to 33, was accurate. These paragraphs were presented by both representatives as agreed facts. I now summarise the facts as agreed by the parties.

  2. Prior to entering the UK, the appellants had lived in Bangladesh for 2 years. They previously lived in Saudi Arabia and Abu Dhabi. The appellants entered the UK on 19 July 2007 as exempt diplomatic dependants of Mr Alam, the 1st appellant’s husband and the father of the other appellants. He worked as an Administrative Officer at the Bangladesh High Commission. On 30 May 2012 the appellants were granted further leave to remain until 30 May 2014 in line with that of Mr Alam. The appellants have always remained lawfully resident in the UK. The family only visited Bangladesh once since coming to the UK, for a period of about 3 to 4 weeks. Mr Alam left for Bangladesh in 2013 as a result of his work but the appellants remained living in the UK. Mr Alam has been in Spain since December 2014 because of his employment with the Bangladesh government. Although in contact with the appellants he has only provided limited financial support to his family. The 1st appellant was previously responsible for the financial maintenance of her daughters through her lawful employment.

  3. On 29 May 2014 the appellants applied to vary their leave to remain on the basis of article 8 considerations. The 2nd appellant is profoundly deaf. She suffers from bilateral profound congenital sensorineural deafness. She has lawfully accessed education in the UK since the age of 8 using British Sign Language (BSL) and has learnt to lip read in English. The 2nd appellant sat her GCSE exams using BSL. The 2nd appellant cannot speak, read or write in Bengali. It was accepted that the 2nd appellant would have significant linguistic difficulty in adapting to life in Bangladesh where she would be unable to communicate effectively. If required to leave the UK there would be a significant adverse impact on her ability to communicate with others and on her overall well-being. The 2nd appellant had become distant from Bangladesh and would experience difficulties adapting to life in that country.

  4. The 3rd appellant also suffers from a disability. She is not profoundly deaf but has bilateral moderate hearing impairment. The 3rd appellant spoke very little when she was in Bangladesh. At school in the UK she is required to use a head microphone and hearing aid, was in a support group at school, and required intervention from a specialist speech and language therapist and from a teacher of the deaf to develop her listening, learning and communication skills. She was on the school Special Educational Needs (SEN) register. It was accepted that if she went back to Bangladesh she would have difficulty in adjusting. Her studies had all been in English. The 3rd appellant only spoke a little bit of Bengali at home but could not write it.

  5. It was agreed by both parties that the 2nd and 3rd appellant had lived in the UK during the formative years of their development, in the case of the 2nd appellant from the age of 8, and in the case of the 3rd appellant from the age of 6. Neither child would be able to access the support for their deafness that they enjoy in the UK. The 1st appellant however would be able to work in Bangladesh and be in a position to financially support and provide for the 2nd and 3rd appellants. The appellants also had extended family members still living in Bangladesh.

Evidence at the resumed hearing

  1. The appellants provided a further bundle of documents running to 261 pages. This included statements from all the appellants and a statement from MA, the oldest daughter of the 1st appellant and sister to the 2nd and 3rd appellants. MA was granted Indefinite Leave to Remain in the UK on 3 August 2017 having lived in the UK for a continuous lawful period of 10 years.

  2. I summarise the statements. The 1st appellant felt compelled to stay in the UK in 2013 due to the well-being and best interests of her children. She remained responsible for their daily-to-day care and upbringing. The 2nd appellant accessed her education through BSL. In the last 10 years she learned to write and read in English while the medium of instruction in Bangladesh is Bengali. BSL is not an international language and people from different regions use different sign languages. In Bangladesh they use Inda-Pakistani Sign Language (IPSL). Although there were some common features with BSL, it was substantially different. The appellants had been informed that it could take around 6 years to learn a new sign language. Prior to learning BSL the 2nd appellant could not communicate and felt secluded and lost.

  3. The 2nd appellant is currently studying a BTEC Advanced Diploma in Design for Fashion and Textiles at Level 3 and has full-time support from educational communicators and teachers of the deaf. She hopes, if possible, to go up to university level. Owing to her disability the 2nd appellant remains heavily dependent on the 1st appellant for everyday support. The 1st appellant accompanies the 2nd appellant to GP and hospital appointments and when she goes shopping and travelling. The 2nd appellant’s family involves her 2 sisters and her mother. She is very attached to them and cannot live life without them. The 3rd appellant is very close to her sister and has learned sign language and helps the 2nd appellant to communicate with others. The 2nd appellant has developed many friends, both hearing and deaf, with whom she...

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