Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00194/2015
HU/00195/2015
HU/00196/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 June 2016
On 23 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

Secretary of State for the Home Department
Appellant

v

S N
A N
R N
(ANONYMITY ORDER MADE)
Respondents

Representation:
For the Appellant: Mr P Duffy, Home Office Presenting Officer
For the Respondent: Mr S Bellara, counsel instructed by Clearview solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department against a decision made by Judge of the First tier Tribunal Davies on 24 November 2015, allowing the appeal by Mrs Nauman and her two daughters against a decision refusing them entry clearance as the dependants of a PBS migrant. I shall henceforth refer to the former Appellants as the Claimants. The first Claimant is a national of Pakistan, born on [ ] 1978. The second and third Claimants are daughters of the marriage, which took place on 1 November 2005, born on [ ] 2007 and [ ] 2009 respectively.
2. The applications for entry clearance were made on 27 April 2015 and refused on 11 May 2015 on the basis that the main Claimant did not meet the requirements of paragraph 391C(d) and (e) viz the marriage was subsisting and the parties intended to live with each other permanently.
3. The appeals came before Judge of the First tier Tribunal Davies for hearing on 24 November 2015, when he heard evidence from the Sponsor and in a decision promulgated on 30 November 2015, he concluded that the decision of the Entry Clearance Officer was not in accordance with the law because there was no evidence whatsoever at the date of the application for the Respondent to conclude that the first Claimant was not the Sponsor's wife nor that the second and third Claimant were not his children; the Sponsor had indicated the existence of his wife and children in his application for entry clearance to the United Kingdom as a student and gave clear and reliable evidence that he has visited them in Pakistan on two occasions since he came to the United Kingdom. The Judge expressly found at [13] that the whole of the Sponsor's evidence was credible. He found at [14] that the Claimants satisfied him that at the date of application they met the requirements of the Rules. The Judge further found at [15] in the alternative that the Claimant's Article 8 rights were breached by virtue of the decision and did not further the public interest in relation to immigration control nor that it was in any way proportionate.
4. The Secretary of State for the Home Department sought permission to appeal to the Upper Tribunal in-time on 3 December 2015. The grounds in support of the application assert that the Judge misdirected himself in law on material matters, in particular, that owing to the amendments to the NIAA 2002 on 5 April 2015, the only available ground of appeal open to the Claimant was that the decision was unlawful on human rights grounds and it was not open to the Judge to allow the appeal on the basis that the decision was not in accordance with the law. It was further asserted that the Judge failed to provide adequate reasons as to why the appeal should succeed with reference to Article 8 of ECHR. The Judge failed to engage with the delay in registration of the children's births and the absence of evidence of a subsisting relationship and the evidence that there was post dated the decision. Moreover, no regard was had to the statutory considerations pursuant to section 117B of the NIAA 2002.
Hearing
5. At the hearing before me, Mr Duffy made submissions in line with the grounds of appeal and invited me to set aside the decision.
6. In his submissions, Mr Bellara on behalf of the Claimants submitted that the First tier Tribunal Judge did have jurisdiction pursuant to section 82(1)(b) of the NIAA 2002. He submitted that the Sponsor showed the First tier Tribunal Judge his full passport which has exit and entry stamps prior to the application being made in April 2015 and the Judge had regard to those. He submitted that at [13] the Judge took into account that the Sponsor mentioned in his previous application to enter the United Kingdom as a student that he was married with children and that this goes to credibility and family life and it was open to the Judge to find that the evidence was credible. In respect of the Article 8 claim at [15] Mr Bellara accepted that perhaps the findings could have been expanded upon but his submission was that the evidence and law have been set out quite correctly and the Judge clearly found family life was established and looked at proportionality. He submitted that there was no material error of law.
7. Mr Duffy replied briefly that the Judge erred in allowing the appeal under the Rules; he did not take account of the fact that the Sponsor is here with limited leave and this was not a settlement application, which must have some impact on proportionality and he failed to consider s117B of the NIAA 2002, which must also undermine the Judge's assessment. At [15] the Judge finds family life was established but does not make any other findings and arguably he does not even engage with proportionality because he has allowed the appeal wrongly inside the Rules.
Decision
8. The primary ground of appeal is that relating to jurisdiction. The version of section 84 of the NIAA 2002 in force since 5 April 2016 provides that: "(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998." The notices of refusal make no reference to the limited right of appeal but simply refer to the right of appeal pursuant to section 82(1) of the NIAA 2002. The version in force at the date of decision, pursuant to section 15 of the Immigration Act 2014, provides for the right of appeal to the First tier Tribunal only where the Secretary of State has decided to refuse a protection or human rights claim or has revoked protection status. By virtue of 2015 No. 371 (C. 18) The Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 the amendments that came into force on 6 April 2015 do not apply to decisions made after that date in respect of applications made before that date. However, the Claimants made their applications for entry clearance on 27 April 2015, after the coming into force of the amended section 82 of the NIAA 2002. Thus it is clear as a matter of law that the jurisdiction of the First tier Tribunal Judge extended only to whether or not the Claimants could succeed on human rights grounds.
9. It follows that the First tier Tribunal Judge erred in law in allowing the appeals on the basis that the decision by the Entry Clearance Officer was not in accordance with the law as there was no jurisdiction to allow the appeals on that basis.
10. The First tier Tribunal Judge further allowed the appeals in the alternative on the basis of Article 8 of ECHR. However, in so doing, the Judge failed to have regard to or make any findings in respect of the mandatory statutory provisions set out at section 117B of the NIAA 2002, regarding the public interest in Article 8 cases, which makes reference to the ability to speak English (2) and be financially independent (3). I further agree with Mr Duffy that the Judge's reasons as to the proportionality or otherwise of the decision are inadequate. The only consideration given by the Judge to Article 8 and proportionality is at [15] of the decision and there is a complete lack of both reasons and analysis as to why the Judge found that the decision was not proportionate, but simply a finding that he was satisfied that family life was established between the Sponsor and the Claimants.
Notice of decision
11. For the reasons set out above, I find that the decision of First tier Tribunal Judge Davies contains material errors of law so that it cannot stand. The appeal by the Secretary of State for the Home Department is allowed with the effect that it is remitted back to the First tier Tribunal for a re-hearing de novo before a Judge other than First tier Tribunal Judge Davies.

Deputy Upper Tribunal Judge Chapman

22 August 2016