Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/00938/2015
HU/00939/2015
HU/00941/2015

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 3rd February 2017
On 20 February 2017

Before

DEPUTY upper tribunal JUDGE RENTON

Between

SHAMIMA AHMED
MAIMUN FARAZ AHMED
MAHRUS FAYAAD AHMED
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms H Masih, Counsel instructed by Janet Melling
For the Respondent: Ms H Aboni, Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The Appellants are a family of citizens of Bangladesh. They comprise Shamima Ahmed, born on 7th June 1975, and her two sons Maimun born on 27th January 2004, and Mahrus born on 28th April 2006. Their father, Faizal Ahmed, came to the UK in 2009 as the Assistant High Commissioner of Bangladesh in Birmingham. The three Appellants entered the UK as his dependants on 3rd August 2009 on Exempt (Diplomat) Visas valid until 11th May 2014, extended until 30th April 2016. Faizal Ahmed returned to Bangladesh in April 2015, but the three Appellants remained in the UK. On 13th April 2015 they applied for leave to remain on the basis of their family and private lives in the UK. Those applications were refused on 12th June 2015 for the reasons given in the Respondent's letter of that date. The Appellants appealed, and their appeal was heard by Judge of the First-tier Tribunal Chapman (the Judge) sitting at Birmingham on 12th May 2016. He decided to allow the appeals for the reasons given in his Decision dated 1st June 2016. The Respondent sought leave to appeal that decision, and on 7th October 2016 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The Judge dismissed the appeals under the Immigration Rules. However, he went on to consider their Article 8 ECHR rights. He did so mainly on the basis that Maimun suffered from severe autism and learning disabilities. As recorded at paragraph 74 of the Decision, the Judge found Maimun's circumstances to be "exceptional and compelling" and which therefore carried more weight than the public interest.
4. At the hearing, Ms Aboni argued that the Judge had erred in law in a material respect in coming to that conclusion. The Judge had given inadequate reasons for his finding of compelling and exceptional circumstances. In the balancing exercise required for any assessment of proportionality, he had failed to attach sufficient weight to the public interest bearing in mind that this family had only come to the UK to join their husband and father who was here for the purposes of his employment. He had returned to Bangladesh, and there was no reason why the Appellants could not join him there. The Judge had failed to consider in depth the objective evidence dealing with the attitudes towards autism in Bangladesh and the facilities for victims there.
5. In response, Ms Masih submitted that there was no such error of law. The grounds of application amounted to no more than a disagreement with the decision of the Judge. The Judge had given comprehensive reasons for his decision. He had carefully analysed Maimun's medical condition and the consequences thereof at paragraph 67 of the Decision, and from paragraphs 27 to 32 inclusive had considered the expert evidence in detail. He had treated the best interests of the children as a primary consideration, for example at paragraph 56 in respect of Maimun. The Judge was entitled to come to the conclusion he did concerning compelling circumstances.
6. I find an error of law in the decision of the Judge which I therefore set aside. To begin with, having found that the Appellants did not meet the requirements of the Immigration Rules, the Judge proceeded to consider the Appellant's Article 8 ECHR rights outside those Rules without considering the test in SS (Congo) [2015] EWCA Civ 387. The Judge did subsequently consider Maimun's circumstances to be compelling, but only in the context of a proportionality assessment. Further, the Judge did not demonstrate that he had attached weight to the public interest, particularly as the Appellants did not meet the requirements of the Immigration Rules. There is only a brief reference to the public interest at paragraph 73 of the Decision. Instead, the Judge appeared to attach most weight to his finding that the medical and other facilities available to Maimun were not as good in Bangladesh as they were in the UK. This is referred to at paragraphs 59, 60, 65, and 66 of the Decision. A comparison between the facilities available in the UK and Bangladesh is not the appropriate test for exceptional and compelling circumstances.
7. Having set aside the decision of the First-tier Tribunal, I did not proceed to re-make the decision in the appeal. It is now some nine months since the First-tier Tribunal considered the circumstances of this family, and in particular those relating to Maimun, and there may have been developments since then relevant to an Article 8 ECHR assessment. The decision in the appeal will therefore be re-made by the First-tier Tribunal in accordance with paragraph 7.2.(b) of the Practice Statements.

Notice of Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside that decision.

The decision in the appeal will be re-made in the First-tier Tribunal.

Anonymity

The First-tier Tribunal did not make an order for anonymity. I was not asked to do so and indeed find no reason to do so.

Signed Date

Deputy Upper Tribunal Judge Renton