Tribunal decisions

The decision

IAC-fH-WYL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01442/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 November 2016
On 17 November 2016

Before

LORD BANNATYNE
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

Secretary of State for the Home Department
Appellant
and

sajmina daudbhai patel
(anonymity direction not made)
Respondent

Representation:

For the Appellant: Ms Ahmed, Home Office Presenting Officer
For the Respondent: Appeared on own behalf.

DECISION AND REASONS

1. For the sake of continuity we will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal to the Upper Tribunal.
Background
2. The appellant is a citizen of India, born on 10 November 1984 and she is now 32 years old.
3. The appellant entered the UK with entry clearance as a Tier 4 (General) Migrant on 23 July 2011, with entry clearance valid until 30 March 2013. On 29 March 2013 she applied for leave to remain, which was granted on 22 May 2013, again as a student. Leave was valid until 9 April 2016. On 19 December 2015 she applied for leave to remain as a spouse of a British citizen, Mr Huzaifa Patel.
4. The application was refused on a number of grounds by the respondent.
5. The appellant appealed in terms of Section 82(1) of the Nationality, Immigration and Asylum Act 2002 to the First-tier Tribunal.
6. The First-tier Tribunal held the decision of the respondent not lawful.
7. The respondent sought to appeal the above decision to the Upper Tribunal and was granted permission to appeal on 30 August 2016.
Submissions
8. The respondent did not challenge any of the findings of fact of the First-tier Tribunal.
9. The challenge to the determination of the First-tier Tribunal was this: the First-tier Tribunal erred in law in that it had failed accurately to identify the nature of the decision under appeal (saying that the appeal was against the refusal of leave to remain as a partner, rather than against the refusal of a human rights claim), and failed to identify and consider the only ground of appeal open to the appellant, namely that the decision was unlawful under Section 6 of the Human Rights Act 1998. The First-tier Tribunal had made no reference to Section 6 and had not analysed whether the decision breached the appellant's human rights.
10. Given the way that argument developed before us we did not require to call upon the appellant to reply.
Discussion
11. We are satisfied that having regard to the whole terms of the First-tier Tribunal's determination (which was determined on the papers) that it failed to identify the nature of the decision under appeal and failed to identify and consider the only ground of appeal open to the appellant, which was in terms of Section 6 of the Human Rights Act 1998. This is because the appellant's application was made on 19 December 2015, after section 15 of the Immigration Act 2014 came into force. We accept without difficulty that this is an error of law.
12. Having indicated to the parties that we considered that there was an error of law we raised with them the issue of the materiality of that error of law.
13. The bench put to Ms Ahmed that if the First-tier Tribunal had considered the matter as it should have done it would have required to have asked itself the well-known questions set out by Lord Bingham in Razgar v Secretary of State for the Home Department [2004] 2AC 368. Ms Ahmed accepted that this was a correct analysis.
14. Accordingly the first question which the First-tier Tribunal would have been required to ask itself would have been this: was there family life? Ms Ahmed accepted that there was family life.
15. Secondly, the First-tier Tribunal would have been required to ask itself this: would the proposed removal be an interference with the appellant's right to respect for her family life? Once more Ms Ahmed accepted that the answer to that would have been yes.
16. Thirdly, the next question would have been this: if so, would such interference have consequences of such gravity as potentially to engage the operation of Article 8? Once more Ms Ahmed agreed the answer to that question would have been yes.
17. The fourth question would have been this: if so, is such interference in accordance with the law? Ms Ahmed accepted this was the next question which the First-tier Tribunal would have been required to ask itself.
18. In that Ms Ahmed accepted that the foregoing was the proper analysis as to how the First-tier Tribunal should have approached its task we are satisfied that there was no material error of law. The First-tier Tribunal asked itself the question: was the interference lawful and held that the decision of the respondent was not lawful. The findings of fact made with respect to that question, the First-tier Tribunal's approach to that question and its decision in answer to that question were not challenged in the grounds of appeal. That being the case the First-tier Tribunal had in fact asked itself the correct question even though it had not identified the nature of the decision under appeal, had made no reference to the Human Rights Act 1998 and to the question of the appellant's human rights.
19. In the above circumstances we then asked Ms Ahmed to identify any material error of law and she was unable to do so. We are equally unable to identify any material error of law.
Decision
20. There being no material error of law we refuse the appeal.
21. We make no anonymity direction.

Signed Date

Lord Bannatyne
Sitting as a Judge of the Upper Tribunal