Upper Tribunal (Immigration and asylum chamber), 2019-04-12, HU/11744/2018
| Jurisdiction | UK Non-devolved |
| Date | 12 April 2019 |
| Published date | 05 June 2019 |
| Hearing Date | 20 March 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/11744/2018 |
Appeal Number: HU/11744/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11744/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 20 March 2019 |
On 12 April 2019 |
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Before
UPPER TRIBUNAL JUDGE KAMARA
Between
SHC
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: No appearance
For the Respondent: Ms N Willocks-Briscoe, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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This is an appeal against the decision of First-tier Tribunal Judge Parkes, promulgated on 9 January 2019. Permission to appeal was granted by First-tier Tribunal Judge Keane on 12 February 2019.
Anonymity
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An anonymity direction was made previously and is reiterated below.
Background
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The appellant’s husband entered the United Kingdom using a British passport in the identity of a deceased person. The appellant and her son (S), now aged 9, were granted leave to enter the United Kingdom as a partner and minor child of the person named in her husband’s fraudulently obtained passport and entered the United Kingdom on 14 December 2011. The appellant and (S) were granted further leave to remain until 1 October 2016. The appellant gave birth to a daughter (R) in the United Kingdom in 2012 who is now aged 6. R was issued a British passport in 2014, however this was revoked in 2016. On 16 September 2016, the appellant’s husband was convicted of a series of offences involving the use of false documents and sentenced to consecutive prison sentences amounting to 53 months, in total. On 19 October 2016, the appellant’s husband was served with a decision to make a deportation order against him under section 32(5) of the UK Borders Act 2007.
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The appellant applied for further leave to remain under the 10-year family life route 24 August 2017 which remains outstanding. In addition, a human rights claim was raised in response to the Secretary of State’s decision to make a deportation order against her on 8 January 2018.
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The Secretary of State, in the decision letter of 28 January 2018, relied on paragraph 363(ii) of the Immigration Rules, considering it was appropriate to deport the appellant as a family member of a person ordered to be deported. It was emphasised that the appellant might relocate to Bangladesh voluntarily. Consideration was given to the appellant’s Article 8 claim, based on the presence of her husband and children in the United Kingdom as well as her own private life, established since her arrival in 2011. In short, it was noted that the requirements of paragraph 399(a) were not met because neither child had lived in the United Kingdom for at least 7 years and furthermore, it was not considered harsh for the appellant’s children, who were considered to also be Bangladeshi nationals, to accompany her and her husband to Bangladesh. Nor did the appellant meet the requirements of paragraph 399A given her short and unlawful residence in the United Kingdom. Consideration was given to whether there were any exceptional circumstances as the appellant had indicated that S had a health condition. The outstanding application for further leave to remain was refused under paragraph 322(1B) of the Rules because the appellant was subject to a deportation order as well as under S-LTR 1.6 owing to her association with her husband. Separate decisions were made, refusing the human rights claims of the appellant’s husband and each child.
The decision of the First-tier Tribunal
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Prior to the appeal hearing, Kalam Solicitors wrote to the First-tier Tribunal on 17 July 2108, in the following terms, “Appellant does not wish her appeal to be joined with her husband’s appeal. This is because she has been separated from her husband since October 2016. She has no communication with her husband since that date. Appellant do not want her children to see their father for the best interest of her children’s upbringing because of her husband’s present circumstances. “
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The application to unlink the appellant’s appeal from that of her husband was refused by First-tier Tribunal Judge M Robertson because the case papers indicated that the appellant had been visiting her husband in prison with the children throughout 2017.
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At the hearing before the First-tier Tribunal, the appellant’s appeal remained linked to that of her husband, which included an appeal against a refusal to recognise him as a refugee. There were no appeals in relation to the decisions to deport the children.
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The judge’s conclusions on the linked appeals are set out in a single decision. The judge found the asylum claim of the appellant’s husband to lack credibility and did not therefore accept that he was of adverse interest to the Bangladeshi authorities. The judge rejected the appellant’s claim that she was no longer in a relationship with her husband as a ruse designed to avoid deportation. By the time of the hearing, S had resided in the United Kingdom for 7 years, however the judge found that it was not unreasonable to expect him to leave the United Kingdom with his parents.
Permission to appeal
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The appellant appealed however her husband did not. Firstly, it was argued that the judge was wrong to find that it did not affect the outcome of the appeal whether or not the appellant and her husband were in a genuine and subsisting relationship because if they were not, the deportation order against the appellant would cease to have effect.
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Secondly, the judge was said to have erred in finding that the appellant remained in a genuine and subsisting relationship with her husband because the judge had taken into consideration the husband’s demeanour, which was an irrelevant consideration. Furthermore, the judge had not considered the appellant’s evidence that she visited her husband in prison for the sake of the children; that her husband had called her from the prison as opposed to the appellant calling her husband; that the judge engaged in speculation and that the appellant was not asked for an explanation as to the recent relationship breakdown.
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Thirdly, the judge’s findings as whether it was either unreasonable or unduly harsh for the children to leave the United Kingdom were said to be erroneous in a number of respects.
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It was contended that the judge did not engage with the findings in EV (Philippines) [2014] EWCA Civ 874; that the appellant’s case was not analogous to that of the claimant NS in KO (Nigeria) [2018] UKSC 53 because it was not the respondent’s case that she had engaged in deception; that the judge considered parental conduct in his reasonableness assessment and imposed unduly stringent requirement in failing to recognise that it did not need to be shown that the children would be without support or unable to reintegrate in Bangladesh, MT and ET (child’s best interests; ex tempore pilot) Nigeria [2018] UKUT 88 (IAC).
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Permission to appeal was granted on the following basis;
“a fair reading of the judge’s decision arguably established that the judge did embark upon speculation at paragraph 46 of the decision and did engage in unjustified speculation if regard was had to paragraphs 49, 50 and 52 of the decision and the judge arguably took into account irrelevant considerations.
Submissions
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The appellant did not attend the hearing of her appeal on 20 March 2019 and nor was she represented.
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An appellant’s bundle was emailed to the Tribunal in advance of the hearing, which lacked a detailed index but consisted of several hundred pages. Having examined the documents therein, it transpired that there was nothing there which was not already present on the case file.
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On 19 March 2019, Kalam Solicitors wrote to the Upper Tribunal in the following terms;
“We write to confirm that we are unable to instruct counsel to represent the above client at the hearing as the appellant is going (sic) extreme financial difficulties and could not arrange money for the hearing. The appellant has now instructed us to make a request to the Upper Tribunal to decide the appeal on papers on the file.
We are therefore requesting the Upper Tribunal Judge to decide this appeal in our absence on the basis of papers and in light of the grounds of appeal.”
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In view of the clear request from the appellant’s solicitors, I decided to proceed with the hearing in the absence of the appellant and her representative.
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I heard submissions from Ms Willocks-Briscoe which are summarised here. She confirmed that the appellant’s husband had not appealed the dismissal of his appeal, but that removal action had been postponed pending the outcome of the appellant’s appeal. The main argument of the appellant was summarised as that the judge should have accepted that the appellant and her husband were no longer in a relationship.
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Regarding the first ground, Ms Willocks-Briscoe accepted that the respondent’s guidance said that if an applicant no longer formed part of the family of a person subject to the Deportation Order, they would not be liable for deportation....
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