Upper Tribunal (Immigration and asylum chamber), 2015-07-24, IA/20888/2014 & Ors.

JurisdictionUK Non-devolved
Date24 July 2015
Published date20 October 2015
Hearing Date16 July 2015
StatusUnreported
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberIA/20888/2014 & Ors.

Appeal Numbers: IA/20888/2014

AA/08366/2014

AA/08375/2014


IAC-FH-NL-V1


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: IA/20888/2014

AA/08366/2014

AA/08375/2014



THE IMMIGRATION ACTS



Heard at Field House

Decision & Reasons Promulgated

On 16 July 2015

On 24 July 2015




Before


UPPER TRIBUNAL JUDGE blum



Between


mohiuddin hossain

rebeka sultana reba

anindya-taj jayita

(anonymity directionS not made)

Appellants

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation:

For the Appellants: Mr P Turner, Counsel instructed by Direct Access Barrister

For the Respondent: Mr T Melvin, Home Office Presenting Officer



DECISION AND REASONS

1. This is an appeal against a decision of Judge of the First-tier Tribunal Wiseman promulgated on 23 January 2015. There are three appellants. The first appellant entered the United Kingdom on 20 October 2003 with leave to remain as a student until 31 October 2006. He made applications for further leave as a student, which were granted, and the last period of leave granted to him was to expire on 15 January 2014. On 20 September 2007 the second appellant, who is the spouse of the first appellant, entered the United Kingdom as his dependant. They have two children, the third appellant being the oldest child who was born in the United Kingdom on 20 September 2008. The younger child was born in October 2014.

2. On 12 March 2013 the respondent curtailed the leave of the first appellant following the revocation of his college’s licence. On 22 October 2013 the first appellant applied for indefinite leave to remain in the United Kingdom on the basis that he had completed ten years’ continuous lawful residence. This application was initially refused on 16 March 2014. There was however a reconsideration in which the Secretary of State considered the position of the second and third appellants as well, but the applications were again refused on 1 October 2014. The Secretary of State reasoned that the first appellant had only accumulated nine years and seven months’ lawful residence in the United Kingdom and so could not meet the requirements of the Immigration Rules. In her decision the Secretary of State considered Appendix FM and paragraph 276ADE and made reference to Section 55 of the Borders, Citizenship and Immigration Act 2009 in respect of the children. The Secretary of State was not however satisfied that the appellants met the requirements of the Immigration Rules; nor was the Secretary of State satisfied that there were any particular factors outside of the Immigration Rules that could justify a grant of leave to remain under Article 8.

The appeal before the First-tier Tribunal

3. At the appeal hearing before the First-tier Tribunal an adjournment application was made to obtain a consultant clinical psychological report in respect of the third appellant. She was 6 yeas old at the time. This was refused by the judge. At paragraph 57 of his determination the judge stated:

I would of course have considered such a report had it actually been prepared and available and I do understand that a date in January was being aimed at in that respect because it was initially thought that that was when the hearing was going to take place. Whilst no Tribunal would do anything other than consider carefully such a report, it is difficult to see what assistance it would have given in this particular case and indeed the process might actually be counterproductive. I was not told that the child was even aware of the appeal and its implications but I was certainly specifically and properly told by Mr Chipperfield that she has no psychiatric or psychological problems. I suspect that she is simply getting on with the life she has always known and any assessment of her would describe her as well and happy in her life here and likely to have some difficulty in adjusting to life in another country altogether.”

The judge refused the adjournment application. The judge went on the hear evidence from the first and second appellant.

4. In dismissing the appeals the judge was of the view that the appellants’ removal would not breach Article 8. The judge noted that the first appellant was not present in a category leading to settlement. The judge found there were no very significant obstacles to reintegration of the appellants, this being a reference to the test contained in paragraph 276ADE(vi) of the Immigration Rules even though no specific reference was made to this paragraph in the actual determination. The judge considered that the third appellant had started primary school but was at an age where her relationships with her own family were more important than relationships she may have established outside the family. The judge made reference to the case of Azimi-Moayed (decisions affecting children: onward appeals) [2013] UKUT 197 and stated:

It has been made clear that it is in the best interest of the child to live with and be brought up by his or her parents; all the family would be returning to Bangladesh together and so there was no breach of family life rights at all although private life obviously changes. Assisted by parents with the full and lengthy knowledge of Bangladesh right through to significant adulthood, these children will have no real difficulty in that respect.”

The appeal to the Upper Tribunal

5. The grounds to the Upper Tribunal are twofold. There is first a challenge to the fact that the judge made no reference to paragraphs 117A and 117B of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014.

6. The second basis of challenge to the decision is the refusal of the judge to adjourn to enable the clinical report to be obtained. At the Upper Tribunal hearing I received a copy of a report by Dr Rozmin Halari. She is the same individual who was identified in the initial application to adjourn before the First-tier Tribunal as the expert who was going to be instructed. The date of the report is 5 May 2015.

Paragraph 117B

7. Paragraph 117B identifies a number of public interest considerations that are mandatory for any judge to consider when assessing the proportionality of an appealable decision. It is argued with some force by Mr Turner that the failure by the judge to identify or make any reference to the substantive considerations within paragraph 117B constitutes an error of law. I fully accept that the judge does not mention paragraph 117B or the English language proficiency of any of the appellants, although the judge does talk at length in respect of the first appellant’s hopes to become a barrister, he already being a qualified solicitor. I accept that there was a legal error in the decision.

8. The question then arises as to the materiality of that error. Mr Turner submitted that it was such a fundamental error as to be fatal to the decision. I do not accept this submission. With respect to section 117B the first appellant was relying on his and his family’s proficiency in English and his ability to financially support his family. I am assisted by the authority of AM (Section 117B) Malawi [2015] UKUT 0260 (IAC). Headnote 2 of that authority reads thus:

An appellant can obtain no positive right to a grant of leave to remain from either Section 117B(2) or (3) whatever the degree of his fluency in English or the strength of his financial resources.”

I consider also head note 4 of the same authority which reads:

Those who at any given date held a precarious immigration status must have held at that stage an otherwise lawful grant of leave to enter or remain. A person’s immigration status is precarious if their continued presence in the UK will be dependent upon their obtaining a further grant of leave.”

Having regard to the clear principles enunciated in AM I cannot see how, had the judge made specific reference to all of the factors in 117B material to this appeal, it would have materially assisted the appellants, and I therefore find the Judge’s omission does not constitute a material error of law.

The adjournment request

9. In relation to the adjournment request Mr Chipperfield, Counsel representing the appellants at the First-tier Tribunal, indicated that the third appellant had no psychological or psychiatric problems. There were various statements from the third appellant’s parents in the bundles before the First-tier Tribunal. These disclosed no issue of concern with the third appellant’s wellbeing or health. They stated, in effect, that she was settled and happy at school. The third appellant’s school report of 2014 indicated that she was a pleasure to teach, had a great imagination, was a confident girl and a highly motivated learner, helped others, and was always full of enthusiasm. In respect of the various areas of learning, including listening and attention, understanding, speaking, moving and handling, self-confidence, managing feelings and behaviour, reading, making relationships, numbers and writing, she was...

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