Upper Tribunal (Immigration and asylum chamber), 2018-08-30, HU/11424/2016 & HU/13124/2016

JurisdictionUK Non-devolved
Date30 August 2018
Published date13 September 2018
Hearing Date23 July 2018
CourtUpper Tribunal (Immigration and Asylum Chamber)
StatusUnreported
Appeal NumberHU/11424/2016 & HU/13124/2016


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/11424/2016

HU/13124/2016



THE IMMIGRATION ACTS



Heard at Field House

Decision & Reasons Promulgated

On 23 July 2018

On 30 August 2018




Before


UPPER TRIBUNAL JUDGE SMITH



Between


MD shariar [k]

mrs anita [i]

Appellants

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation:

For the Appellant: The Appellants appeared in person

For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer



DECISION AND REASONS

BACKGROUND

  1. These appeals came before me on transfer from Upper Tribunal Judge Reeds who, by decision promulgated on 21 June 2018, found an error of law in the decision of First-tier Tribunal Judge Barber promulgated on 11 October 2017, dismissing the Appellants’ appeal. Although, as the Appellants pointed out at the start of the hearing, Judge Reeds had intended to conduct the resumed hearing to re-make the decision herself, she was unable at the last minute to conduct the hearing and the appeals were therefore transferred to me. Her very full error of law decision clearly identifies the background facts and issues for resolution and I therefore considered that I was in a position to re-make the decision. I did not consider it to be in the interests of justice, nor indeed in the interest of the Appellants themselves, for the appeals to be adjourned to a later date. Accordingly, I indicated that I would hear both appeals.

  2. Much of the background chronology is set out in Judge Reeds’ earlier decision and I do not need to repeat that. However, some of that chronology has been clarified by later material and I will therefore need to expand on or clarify some of the chronology. I will though deal with those clarifications when considering the issues and the evidence.

  3. I had a substantial amount of material before me and it is therefore convenient to set that out, particularly since some of it was filed late in the day:

  • The Respondent’s bundle of documents;

  • Letter dated 28 February 2010 from the Home Office to Corbin & Hassan and other documents relating to the First Appellant’s EEA application in 2010;

  • Respondent’s skeleton argument dated 20 July 2018 (annexing a translation of a Slovakian judgment in relation to the divorce of the First Appellant’s ex-wife);

  • Appellants’ skeleton argument dated 20 February 2018 (annexing page from the EEA application made in 2010 and G-CID notes) and reply to the Respondent’s skeleton argument dated 21 July 2018 (annexing a document entitled “Muslim Marriages and Divorces (Registration) Act 1974”, the birth certificate of the Appellants’ child and certificates awarding a MBA to the First Appellant on 3 August 2011 and a MSC to the Second Appellant on 1 December 2010);

  • Appellant’s bundle of documents lodged for the First-tier Tribunal hearing running to 349 pages (cited hereafter as [AB/];

  • Appellant’s supplementary bundle of documents lodged on 13 July 2018 running from A00 to D55 (which includes also the Appellant’s second skeleton argument) (cited hereafter as [ABS/];

  • USB stick: Mr Wilding confirmed he was unable to view this and, although I have now received this (after the hearing), I am similarly unable to do so for IT security reasons; it appears in any event that the material on this USB stick relates to the marriage in Bangladesh which the Respondent has accepted for the purposes of these appeals did take place and so there is no need for me to consider this;

  • Letter dated 31 January 2018 from HMRC to the First Appellant relating to his pay and tax details;

  1. I also heard oral evidence from both Appellants who gave their evidence in English. They were cross-examined by Mr Wilding for the Respondent. Both Appellants confirmed that they did not need an interpreter and that they were content to give evidence in English. They were able to understand the questions and to answer them without difficulty.

  2. In addition, the First Appellant made oral submissions on behalf of both Appellants and I heard oral submissions also from Mr Wilding for the Respondent. I deal with the relevant submissions and evidence in the context of each of the issues below.

THE ISSUES

  1. As I have noted above, Judge Reeds’ decision, at [46], sets out the factual issues between the parties which require determination. Those issues have expanded somewhat as a result of later documents submitted by both parties and it is therefore appropriate to reformulate the issues to some extent.

  2. I note first and foremost that the Respondent’s decision here under appeal is one dated 13 April 2016 in relation to the First Appellant and 6 May 2016 in relation to the Second Appellant. Both of those decisions are made after 6 April 2015 in relation to applications made respectively on 27 November 2015 and 30 November 2015. As such, the Appellants can appeal the decisions on the sole ground that those decisions breach the Human Rights Act 1998. I accept Mr Wilding’s submission that I cannot allow the First Appellant’s appeal on the basis that he satisfies the Immigration (European Economic Area) Regulations (“the EEA Regulations”). Although the First Appellant did appeal at an earlier date against the revocation of his EEA residence permit, he withdrew that appeal.

  3. The Appellants have raised an issue about the risk in particular to the First Appellant on return to Bangladesh. However, he has not made a protection claim, he has not asked the Respondent to consent to him raising that as a “new matter” and the Respondent has not therefore consented to him doing so. As such, that is not an issue which I can consider. For the same reason, I cannot consider the position of the Appellants’ child who was born on 20 March 2018 or the position of the Appellants in light of the birth of that child. In any event, the birth of the child could make a difference only if that child were British and there can be no suggestion that he could be unless the First Appellant is able to establish that he was entitled to be treated as settled in the UK at the time of the child’s birth, at which point the Appellants may need to make further applications dependent on that position.

  4. I also take into account that, as the only ground is whether the decisions breach the Human Rights Act 1998, it is not open to me to conclude that the decisions are “not in accordance with the law” or “not in accordance with the Immigration Rules” (“the Rules”) were I to find that the First Appellant has been lawfully resident in the UK for ten years as he asks me to do. The issue of the Appellants’ entitlement to remain under the Rules is however relevant to their claim to remain on Article 8 grounds and I do therefore need to consider whether paragraph 276B of the Rules is met by the First Appellant’s length of residence and lawfulness of that residence.

  5. With that introduction, I set out the issues which I need to resolve as follows:

In relation to the First Appellant

        1. Has the First Appellant resided in the UK lawfully for ten years as a result of the continuation of his leave under Section 3C Immigration Act 1971 (“Section 3C”) (as the result of the lodging of an appeal in 2009 which was not determined: see [46(1)] of Judge Reeds’ decision);

        2. If not, has the First Appellant resided in the UK lawfully pursuant, initially, to his leave granted as a student and then as the family member of an EEA (Slovakian) national exercising Treaty rights in the UK (“LM”). In that context, I need to consider whether the First Appellant became entitled to retained rights of residence or permanent residence either, directly, as a family member (spouse) or as a family member combined with the period spent as an extended family member (partner). In addition to the marriage in the UK on 10 July 2009, the First Appellant now relies on a marriage which took place in Bangladesh on 27 October 2007 (see [46(2)] of Judge Reeds’ decision);

        3. The issue of the First Appellant’s potential rights under EU law may turn on the extent to which he and LM were in the UK and exercising Treaty rights during the relevant period and that is also a factual issue for me to determine, based on the documents and the First Appellant’s oral evidence (see [46(3)] of Judge Reeds’ decision). It also entails a consideration of the relevant dates for the dissolution of the marriage of the First Appellant and LM

In relation to the Second Appellant

        1. Although the Second Appellant’s position depends largely on that of the First Appellant, the Second Appellant has also raised an issue about whether she has continuing leave herself; she claims that when she appealed a previous refusal of leave in 2013/14, she did not receive the appeal decision and that therefore her leave continued (and continues to date) under Section 3C

        2. Thereafter, even if the First Appellant establishes that he has resided lawfully in the UK for ten years (and would therefore meet the criteria for indefinite leave to remain), that does not necessarily mean that the Second Appellant could succeed; this would turn on her own status and ability to...

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