Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00271/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Promulgated & Sent to Parties
on 7 March and 19 April 2017
on 21 April 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

BABAR ALI
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr J Bryce, Advocate, instructed by Maguire (Solicitors) Scotland Ltd
For the Respondent: on 7 March, no appearance; on 19 April, Mr M Matthews, Senior Presenting Officer

DETERMINATION AND REASONS
1. The appellant applied to the respondent on 20 April 2015 for leave to remain, based on family life with his partner and their daughter.
2. The respondent refused that application by a decision dated 12 May 2015, finding that the appellant’s claimed relationship with his spouse was not genuine, and that he had no role in the child’s upbringing.
3. In a decision issued on 11 August 2016 First-tier Tribunal Judge David C Clapham found that the relationship between the appellant and his wife was genuine and subsisting, and allowed the appeal.
4. The SSHD’s grounds of appeal to the UT essentially make the same point in several different ways: the judge resolved the appeal as if the genuineness of the relationship was the only issue, and did not consider the terms of the rules, or whether there was any basis on which to allow the appeal, available only on human rights grounds, absent compliance with the terms of the rules.
5. The appellant’s rule 24 response to the grant of permission was produced only on 7 March, but that was within time. It runs along these lines. It is unsurprising the judge thought there to be only one issue, because that is how the respondent approached the case. While it might be problematic to say there were “insurmountable obstacles” in terms of paragraph EX1 of the rules, the case was bound to succeed on the best interests of the child. Any error was immaterial, or any remaking should be in favour of the appellant.
6. By written request on 7 March the respondent sought an adjournment, due to non-availability at short notice of the presenting officer who was due to appear. The application was not opposed.
7. The appellant undertook to provide a copy of the rule 24 response to the respondent, and subsequently did so.
8. At the resumed hearing on 19 April Mr Bryce drew attention to SF and others (Guidance, post-2014 Act) Albania [2017] UKUT 00120(IAC) and to the respondent’s guidance (referred to therein) on when it would be unreasonable to expect a British citizen child to leave the UK.
9. Mr Matthews fairly and frankly acknowledged that the position the respondent now sought to advance faced some difficulties. Firstly, the respondent’s decision might have taken the point that the appellant failed to meet the suitability requirements of the rules, due to having previously sought to remain on the basis of a sham marriage to an EEA citizen, but did not do so. Secondly, while the respondent’s decision might strictly have been correct in not dealing with paragraph EX1, it might have been preferable to do so “in the alternative”. He accepted that those points were absent also from the submissions made by the presenting officer in the FtT (who was no doubt handicapped by having the decision as the starting point).
10. Mr Matthews submitted that those failures did not affect the judge’s obligations to consider and apply the law. Once he found, contrary to the respondent’s position, that family life did exist, he should have moved on to the terms of paragraph EX1, and he should have made an overall proportionality assessment. The judge said at paragraph 45 that the marriage to an EU national “may well” have been a sham, but he failed to make any clear finding. The partner route would not have assisted the appellant, there being nothing to show insurmountable obstacles to family life elsewhere. The key question should have been identified as whether it was reasonable to expect the child to leave the UK in terms of paragraph EX.1 (a) (or of s.117B(6) of the 2002 Act). The respondent’s guidance on when it would be unreasonable to expect a British citizen child to leave the UK had been before the judge (well buried in a bundle provided by the appellant). The guidance said that it might be appropriate to refuse leave “where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU.” Examples of such separation included “a very poor immigration history, such as where the person has repeatedly and deliberately breached the immigration rules”. The judge made adverse findings about the appellant’s immigration history – overstaying, no intention of leaving, and illegal working. The respondent had made a previous decision that there was a sham marriage, against which the appellant had not appealed. That was a serious matter, reflected in that an EEA national who is party to such a marriage is now liable to deportation. The appellant had a case to argue in terms of paragraph EX.1 (a), but it was one which might and in the respondent’s submission should go against him, so the judge’s error was material, and the decision should be set aside. A clear finding on whether there had been a sham marriage would be required, so there should be a further hearing, either in the FtT or in the UT.
11. Mr Bryce relied upon the response briefly summarised above, and submitted further as follows. The issue of suitability in terms of the rules was not raised in the decision appealed against, in the FtT, or in the grounds of appeal to the UT. It was contrary to the general requirements of the procedure rules and to natural justice to enable it to be raised at such a late stage.
12. It was identified at this stage that although the issue of a previous sham marriage was not a major theme of the proceedings in the FtT, the appellant’s evidence-in-chief (contained in his witness statement) was briefly to the effect that the marriage had broken down quickly but was not a sham; and that the contrary was put to him in cross-examination, and denied.
13. Mr Bryce continued his submissions. Although the sham marriage allegation was put to the appellant at the hearing, it was not pleaded as a point on suitability under the rules. The onus was on the respondent to establish such an allegation. There had been little evidence. As that marriage took place in June 2011, the matter was rather stale, and might well be difficult to revisit at any further hearing. There were degrees of “sham marriage”, and it would take one at the most serious end of the scale to justify the outcome now sought by the SSHD. The child is a UK citizen by birth. In terms of the rules, statute and case law (in particular, ZH v SSHD [2011] UKSC 4 at 31 – 33) the case that it was not reasonable to expect the child to leave the UK would be a very strong one. The UT should not set aside the decision of the FtT to enable that issue to be opened.
14. I reserved my decision.
(1) Did the FtT err on a point of law?
15. I note the appellant’s position that error was immaterial, induced by the respondent, and the FtT should not set aside, or should remake by allowing the appeal.
16. Whether it is an error of law not to consider issues not placed before a judge is I think to be decided by how obvious and how significant the issue overlooked was, by how the case was conducted, and by the other circumstances of the case.
17. As the respondent chose to make her decision and to conduct the appeal on the one question of the genuineness of the relationship, it would take a glaring oversight to establish error of law by failing to deal with other issues. That is a point ignored in the grounds (although not by Mr Matthews in his submissions).
18. The law and policy on the issues overlooked is not such that these were matters on which the appellant was almost bound to fail.
19. The judge might well have thought it was sensibly implicit in the approach of the respondent that if the relationship was established, the rest followed. The ideal course would have been to raise that with parties at the hearing, and to make explicit reference in the decision.
20. It might be said that the further issues should have been immediately obvious, but I am not persuaded in this case that it was an error of law for the judge to dispose of it precisely upon the issue pleaded before him by both parties.
(2) Alternatively, if the FtT did make an error on a point of law, should the UT set aside its decision?
21. Section 12 of the 2007 Act empowers but does not require a decision to be set aside where error is found on a point of law. The UT has discretion.
22. The form of application for permission to appeal requires an applicant to state “the result you are seeking”. The respondent did not comply with that requirement.
23. As Mr Bryce points out in the response, the grounds fail to assert how the case should have been disposed of differently in light of the findings of fact.
24. I uphold the submission that the respondent’s argument has been too long delayed. The right to a fair hearing includes the right to fair notice of the case of the other side. The right to appeal further is not generally a mechanism for parties to correct their oversights. The present case is not one where a new line of approach should be entertained at this very late stage.
25. Apart from passing reference in the final oral submission on what the outcome should be, if error were found, the respondent has made no application to introduce further evidence. Even if there was an oversight by the judge (as well as by the respondent) there is no reason why that should entitle the respondent to an opportunity to assemble the materials to make a better case on the sham marriage issue.
26. Both sides founded upon on the respective strengths of their cases on the merits of the issues not dealt with.
27. The facts of this case are rather different from ZH and from SF and others, and not in ways which appear to favour the appellant. The case for the appellant, based on having a UK citizen child, is pitched rather high in the response; less so in oral submissions.
28. On the other hand, the respondent did not establish in the FtT the facts by which her guidance might justify refusal of leave. I also see some tension between the respondent’s guidance and the terms of the rules and statute. The guidance asks when it would be reasonable to expect a parent to leave the UK and be separated from a child remaining here with the other parent, rather than the question in the rules and statute, when it would be reasonable to expect the child to leave.
29. I do not find the prospective argument for the appellant so strong that there could be only one outcome, and therefore no purpose in interfering with the FT decision; but there are other reasons for finding in his favour.
30. I do not find the prospective argument for the respondent so strong as to overcome the appellant’s several proper objections to re-opening the case.
31. The decision of the FtT shall stand.
32. No anonymity order has been requested or made.

20 April 2017
Upper Tribunal Judge Macleman