Tribunal decisions

The decision

IAC-HX-MH/11-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01413/2015

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 30 November 2016
On 13 December 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Secretary of State for the Home Department
Appellant

and

juhena Chowdhury
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr McVeety, Senior Home Office Presenting Officer
For the Respondent: Ms Hussain, Maya Solicitors

DECISION AND REASONS
1. I shall refer to the appellant as the respondent and the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, Juhena Chowdhury, was born on 1 September 1989 and is a female citizen of Bangladesh. By a decision dated 25 June 2015 the appellant was refused leave to remain in the United Kingdom on the basis of her family and private life. She appealed to the First-tier Tribunal (Judge D N Harris) which, in a decision promulgated on 7 March 2016, allowed the appeal on human rights grounds. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. The Secretary of State argues; (i) By allowing the appeal on Article 8 ECHR grounds, the judge completely ignored the requirements of the Immigration Rules. This prevented the judge from considering the Article 8 appeal "through the lens" of the Immigration Rules. (ii) The judge did not identify any compelling circumstances for considering the appeal on Article 8 grounds. (iii) Having failed to engage with the Immigration Rules at all, the judge had not considered the public interest concerned with the appellant's removal. (iv) The judge had allowed the appeal by applying Section 117B(6) of the 2002 Act (as amended) finding it would "not be reasonable to expect the child to leave the UK". This was a finding "completely unsupported by any reason".
3. Judge Harris has undoubtedly short-circuited his analysis in order to achieve (in a little over three pages of A4) an outcome which he clearly believed was obvious in the light of Section 117B(6) of the 2002 Act. That section provides as follows:
In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
4. In my opinion, the grounds are correct in stating that the judge has bypassed the Rules entirely, an approach which, prima facie, would lead the Tribunal to conclude that the judge had erred in law. A question, however, remains as regards materiality. Before I continue, I make the following observations: (i) The Secretary of State no longer considers that the appellant has failed to establish that she is in a genuine and subsisting relationship with her husband. The Secretary of State also appears to accept that her husband's former relationship had broken down completely; (ii) The children of the appellant and her husband are British citizens.
5. It is important to consider the position the Secretary of State had adopted by the time this case reached the First-tier Tribunal. I have regard to Appendix FM R-LTRP.1.1(d):
Section R-LTRPT: Requirements for limited leave to remain as a parent
R-LTRPT.1.1. The requirements to be met for limited leave to remain as a parent are-
(a) the applicant and the child must be in the UK;
(b) the applicant must have made a valid application for limited or indefinite leave to remain as a parent or partner; and either
(c)
(i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
(ii) the applicant meets all of the requirements of Section ELTRPT: Eligibility for leave to remain as a parent, or
(d)
(i) the applicant must not fall for refusal under S-LTR: Suitability leave to remain; and
(ii) the applicant meets the requirements of paragraphs E-LTRPT.2.2-2.4. and E-LTRPT.3.1-3.2.; and
(iii) paragraph EX.1. applies.
6. The Secretary of State does not argue that the appellant falls for refusal under Section S-LTR. At the date of the refusal letter, the Secretary of State considered that the appellant failed to satisfy E-LTRP.1.7, 1.8 and 1.9. Sub-paragraph 1.7 concerns the genuine and subsisting nature of the relationship; the Secretary of State now accepts that the appellant and her husband enjoy such a relationship. Sub-paragraph 1.8 requires that the applicant and her partner if married or in a civil partnership must be validly married. No doubt has been cast on the claim by the appellant that she is validly married to her husband. Sub-paragraph 1.9 requires that a previous relationship of the applicant or their partner must have broken down permanently; the First-tier Tribunal Judge was satisfied that the husband's previous relationship had ended and that finding has not been challenged by the Secretary of State. The question, therefore, given that the appellant satisfied the requirements of E-LTRP.1.2-1.12 and E-LTRP.2.1 is whether EX.1 should apply;
EX.1. This paragraph applies if:
(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
(ii) it would not be reasonable to expect the child to leave the UK; or
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.
7. Judge Harris made no firm finding as to whether there were insurmountable obstacles to family life with the appellant's husband continuing outside the United Kingdom. What was, however, accepted by the Secretary of State is that it would not be reasonable to expect the British citizen children to leave the UK. Mr McVeety, for the Secretary of State, accepted that, in light of the findings made by Judge Harris and the circumstances of the appellant now accepted by the Secretary of State, it is not possible to argue that the appellant and her husband should remove their family life together to Bangladesh whilst the children remain in the United Kingdom. He accepted that, even though Judge Harris may have erred by moving directly to consider Article 8 ECHR outside the Immigration Rules, the proper application of the provisions of the Rules should have led him to allow the appeal on the basis that the appellant could meet the requirements of EX.1. I agree. In his haste to apply Section 117B(6) outside the Rules without first considering the Immigration Rules, the judge may have overlooked the fact that the appellant met the requirements of the Rules as at the date of the hearing before him. In the circumstances and notwithstanding that the First-tier Tribunal erred in law, I have exercised my discretion to refrain from setting aside the First-tier Tribunal's decision.

Notice of Decision

Appeal dismissed.

No anonymity direction is made.

Signed Date 10 December 2016

Upper Tribunal Judge Clive Lane