Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00734/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 February 2017
On 28 February 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

NA
(ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Mr P Armstrong, Home Office Presenting Officer
For the Respondent: Mr P Turner of Counsel, instructed by M-R Solicitors

DECISION AND REASONS

1. The appellant is the Secretary of State but I will refer to the original appellant, a citizen of Bangladesh born on 3 May 1996, as the appellant herein.

2. The decision challenged by the Secretary of State is a determination of a First-tier Judge following a hearing on 19 December 2016 allowing the appellant’s appeal on human rights grounds.

3. The appellant claimed asylum on 14 July 2008 after entering the UK illegally. He was granted discretionary leave to remain on 8 January 2009 until 7 January 2012 when he was aged 15 in accordance with the Secretary of State’s policy. He did not submit an application for further leave to remain until some eighteen months later.

4. The Secretary of State acknowledged that the appellant had not been advised of his right to appeal the earlier decision due to an administrative error.

5. The appellant applied for further leave to remain on 19 June 2013 and it was the refusal of that decision after some delay on 21 November 2014 that gave rise to the appeal proceedings herein.

6. The Secretary of State did not accept that the appellant had established a claim to asylum and this aspect of the decision was not the subject of challenge before the First-tier Judge – his then representative told the judge that the claim for asylum would not be pursued.

7. The judge heard from the appellant, who wished to pursue his studies in the UK. He had obtained an NVQ diploma in rail engineering and his ambition was to become a rail engineer. He said he had no support network in Bangladesh or family or accommodation there.

8. He had taken up boxing and his coach gave evidence in his support. The judge was told that the appellant was a very talented boxer with strong leadership skills.

9. The judge also heard from the appellant’s former foster parent, who regarded the appellant like a son.

10. The judge records that the appellant came to the UK when he was just 12 and at the time of the hearing was just over 20½. He had resided in the UK continuously since his arrival in 2008.

11. I paragraph 27 of his decision the judge stated as follows:

“27. By reference to Paragraph 276ADE of the Rules (Leave to remain on the grounds of private life) this appellant cannot satisfy the 20 years continuous residence in the UK having only lived in this country since he was 12 years of age, and since 2008. However, I need now to consider whether it would be reasonable to expect this appellant to leave the UK (iv) or whether there would be very significant obstacles to the appellant’s integration into Bangladesh (vi).”

The judge then reviewed the material about the appellant’s studies and his ambitions and states at the end of paragraph 28 of the decision:

“28. … If this appellant was now to be returned to Bangladesh he clearly would not be able to finish his apprenticeship and any opportunities to become a rail engineer would be extremely limited. In effect, whilst he might be able to use some of the experience and academic qualifications gained in this country, any aspirations he might have regarding a future career in engineering in particular, would at best be extremely limited, but more likely, not achievable in the near future.”

The judge then referred in paragraph 29 to the appellant’s boxing. He found the appellant to be committed and hardworking not only in his academic life but also in his sporting efforts and added: “Undoubtedly such boxing training and the likelihood of being associated with this sport would be an extremely unlikely association if returned to Bangladesh.”

12. The judge accepted the evidence that he had heard from the appellant’s foster mother and how the family had helped the appellant through difficult times.

13. The judge found in paragraph 30 that he could not be satisfied that the appellant could rely on any family support for practical or financial assistance, or for the provision of any accommodation: “He would effectively be returned as a single male whose asylum claim would have been refused and who had no further leave to remain in this country.”

14. The determination concludes as follows:

“31. The appellant has spent all his teenage life in the UK. I am satisfied that he has integrated and assimilated himself into the British culture and society. His education was completed here and he continues to participate in a Rail Engineering Apprenticeship Scheme intending to go to university once he completes his apprenticeship. The appellant is now 20½ years of age. He speaks the English language. In all these circumstances I do not find it reasonable to now expect the appellant to leave the UK by reference to Paragraph 276ADE(iv) of the Immigration Rules.

32. Even if I was not so satisfied, and I had to consider this matter outside the Rules, by reference to the decision in Razgar, I would be satisfied that Article 8 was engaged and that the appellant’s right to respect for his private life would be interfered with for all the reasons given in this determination. I would however not be satisfied that such an interference was necessary and that the decision of the Respondent would be disproportionate.

33. For completeness I should deal with the issue of Asylum and Humanitarian Protection, though neither is being pursued. It would appear that this appellant has little or nothing to add to his previous asylum claim which was refused on 8th January 2009 by the Secretary of State. I find that the appellant has not discharged the burden of proof to establish that he is entitled to the grant of Asylum, and conclude, that if the appellant was to be removed this would not cause the UK to be in breach of its obligations under the Qualification Regulations. Further, the appellant has failed to provide credible and reliable evidence that he would face a real risk of serious harm in Bangladesh, and therefore if he was to be removed would not cause the UK to be in breach of its obligations under Paragraph 339C of the Immigration Rules.

34. In reaching a decision I have paid regard to section 117B of the 2002 Act [as amended]. I am satisfied that my decision does infringe the consideration that effective immigration control is in the public interest. It is in particular in the public interest that persons who seek to enter or remain in the UK are able to speak English. This appellant has through his time in the UK learned the English language and had no need for an interpreter at this hearing.”

15. The Secretary of State applied for permission to appeal pointing out that the Rule relied upon by the First-tier Judge (276ADE(iv)) did not apply to the appellant because the appellant was 20½ and it was submitted that the Rule required an applicant to be “under the age of 18 years”. The judge had materially erred in considering the appellant’s case under this paragraph as the appellant was over the age of 18 years. The only applicable Rule within paragraph 276ADE was Rule (vi) but this paragraph contained a higher threshold of “very significant obstacles to the applicant’s integration” which had not been considered by the First-tier Judge when he had allowed the appeal. The appellant had not demonstrated he could satisfy that provision.

16. The Secretary of State went on to argue that the judge had failed to consider correctly the statutory considerations in Section 117B of the 2002 Act. Not all of the mandatory factors had been set out and reference was made to Dube (ss.117A-117D) [2015] UKUT 00090 (IAC). The judge had ignored considerations such as financial independence and the limited weight to be attached to a private life established with precarious immigration status. Dube made it clear that the considerations were not an “à la carte menu of considerations that it is at the discretion of the judge to apply or not apply.” Mr Armstrong relied on the grounds. The judge had erred in only relying on the appellant’s ability to speak English and not on the statutory considerations set out in Section 117B.

17. In relation to the appellant’s boxing ability and the judge’s comments in paragraph 29 about association with boxing being extremely unlikely in Bangladesh, Mr Armstrong lodged material from the Bangladesh Amateur Boxing Federation. This gives the history of the Federation from 1972. In international sports it achieved two gold, two silver and two bronze medals in 2010 and from 2009 it had participated in higher training in different countries organised by the International Boxing Association.

18. Mr Armstrong submitted that there was no reason why the appellant as an educated and healthy adult could not return to Bangladesh. He could fend for himself. The decision should be remade.

19. Mr Turner submitted that as at the date of application in June 2013 the appellant would still have been under 18. There had then been a long delay. He submitted that the judge had correctly considered matters as at the date of application.

20. With regard to the point made in relation to Section 117 there would be no need for a judge to deal with the statutory considerations where these were covered by the Rules. Counsel referred to AM (S.117B) Malawi [2015] UKUT 0260 (IAC).

21. If the Rules had been met it would not be necessary to consider a freestanding Article 8 claim. In the event that he could not comply with the Rules then the appellant could succeed under Article 8 having grown up in the UK since the age of 12 and he should still be treated as a minor although he was now a young adult. He would be in the care of Social Services until the age of 21 or 23. It was the Secretary of State’s delay that had caused him to be treated as an adult. The judge’s determination had been detailed and he had had regard to all relevant circumstances. The appellant came within the Immigration Rules and he had a bright future in the UK and it would be unreasonable to expect him to return to Bangladesh.

22. Mr Armstrong submitted that as at the date of the application the appellant would have been a minor but he had come in February 2008 and would not satisfy the second part of the Rule – “and has lived continuously in the UK for at least 7 years” - because he had not achieved seven years as at the date of application – he had only been in the UK for five years and four months.

23. In reply, while Counsel acknowledged the difficulties in the way of the appellant under paragraph 276ADE(iv), he submitted that in the circumstances of the instant appeal there would be no difference in the outcome if the words “very significant obstacles” in paragraph (vi) were to be substituted and he pointed out that the Secretary of State had caused the problem by underlining the wrong words in the grounds of appeal. The error was not material.

24. At the conclusion of the hearing I reserved my decision. I remind myself that I can only interfere with the decision if it was materially flawed in law.

25. As I have pointed out, the judge refers in paragraph 27 to both subparagraphs (iv) and (vi) and it is easy to see how in the circumstances of this case the Rule could lead to confusion as the appellant was indeed a minor at the time of the application. The respondent was confused in the grounds of appeal and this confusion was, I think it is fair to say, not confined to the respondent. The crucial part of the Rule so far as this case is concerned was in fact the second part of it and the appellant could not comply with that aspect because he had not been in the United Kingdom for seven years and it does appear common ground once Mr Armstrong had completed his submissions that the judge had applied the wrong Rule.

26. Counsel then submitted that this would not make any difference in the circumstances of this case and the judge’s findings could equally be read as covering “very significant obstacles” and he had not materially erred in his consideration of Section 117B.

27. Tempting as it is to gloss over the differences between the two Rules I am not satisfied that would be the right outcome. The Rules are clearly different and the judge applied the wrong ones.

28. The point taken in relation to Section 117B also has some merit. It may be that if the point arose in isolation the determination would not be fatally flawed but the judge’s approach in paragraph 34 to the statutory considerations is at best suboptimal. However, it is principally the point taken under the Rules which causes the problems in this case and I reject Counsel’s submission that the two Rules amount to the same thing.

29. It is clear that the appeal is materially flawed in law and must be reheard. On one view the judge’s observation that the appellant would “effectively be returned as a single male whose asylum claim would have been refused and who had no further leave to remain in this country” would put him on a par with many young adult returned failed asylum seekers. However there are arguably various features in the case which may benefit from testing against the correct test as set out in the Rules of very significant obstacles. It is hard of course not to feel sympathy for the appellant, who was let down by the Home Office in that his rights of appeal were not notified to him and who was then subjected to a lengthy delay before the decision was issued. He has also done well for himself in this country.

30. In looking at what would lie ahead for him in Bangladesh the judge appears to have assumed that there would be limited opportunities for boxing in Bangladesh but such observations are to be made with caution. Such opportunities as are or are not available to the appellant in Bangladesh need to be considered in the light of the country information or other reliable evidence.

31. I have come to the conclusion that the appeal must be reheard afresh. The evidence will need to be reconsidered in the light of the correct test under the Rules. It will be a matter for Counsel to decide whether further evidence is required to meet paragraph 276ADE(vi) and “very significant obstacles”.

32. I should mention that the judge considered Article 8 outside the Rules very briefly in paragraph 32. However, as he had approached matters under the wrong Rules it would be inappropriate to attempt to save the decision by reference to the alternative basis on which he sought to make his decision. It would be premature to consider Article 8 before a correct analysis of the case under the Rules.

33. The appeal will be remitted for hearing afresh before a different First-tier Judge. There is unlikely to be a challenge to the appellant’s history, qualifications and boxing skills and it will be a matter for Counsel as to what evidence is called at the fresh hearing to establish the appellant’s case under the Rules. The asylum appeal is no longer pursued. The appeal is remitted to consider the position of the appellant under the Rules and in relation to Article 8.

Notice of Decision

The appeal is allowed as indicated.

Anonymity Order

The anonymity order made by the First-tier Judge continues.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

TO THE RESPONDENT
FEE AWARD

The First-tier Judge made a fee award. I set that award aside in the circumstances. The matter must be redecided at the fresh hearing.

Signed Date 27 February 2017

G Warr,
Judge of the Upper Tribunal