Tribunal decisions

The decision

IAC-FH-CK-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03243/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 February 2017
On 20 February 2017

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Baljit Aujla
(anonymity direction NOT MADE)
Respondent

Representation:
For the Appellant: Mr S Whitwell, Home Office Presenting Officer
For the Respondent: Mr R Sharma, Counsel, instructed by Justin Law Solicitors

DECISION AND REASONS

1. This is the appeal by the Secretary of State against a decision of a First-tier Judge who allowed the appeal of Mr Aujla against the Secretary of State's decision of 14 July 2015 refusing his application for leave to remain in the United Kingdom under the Immigration Rules and under Article 8 of the European Convention on Human Rights outside the Immigration Rules.

2. The judge dismissed the appeal under the Rules on the basis that the appellant, as he was before the judge, could not meet the suitability requirements set out in S-LTR of Appendix FM but allowed the appeal under Article 8 outside the Rules. The Secretary of State sought and was granted permission to challenge the decision on the basis that the judge had fundamentally failed to give any weight to the public interest when engaging with Article 8 outside the Rules and in particular failed to engage with the public interest factors set out in section 117B of the 2002 Act and challenged and criticised the judge's lack of findings in relation to the appellant's children, in particular given the fact that they are adults and a lack of finding as to whether or not his partner, if indeed they are in a genuine and subsisting relationship, could relocate with him to India, noting that she had visited India in the past without him as well and therefore it was argued that there would not be any insurmountable obstacle in continuing family life in India.

3. I heard helpful submissions from Mr Whitwell on behalf of the Secretary of State, to whom I refer hereafter as the respondent, and also from Mr Sharma on behalf of Mr Aujla, whom I refer to hereafter as the appellant. It comes down really to whether or not the evaluation of Article 8 in this case outside the Rules is one which contains any error or errors of law or not, and I agree with Mr Whitwell that there are real problems with this paragraph.

4. The judge from the outset failed to make clear findings on a number of points. He refers, for example, to there being considerable doubt about the overall credibility of the appellant's evidence, made no finding about his relationship with his children, there is reference to the children in the United Kingdom in the submissions that had been made on the appellant's behalf and there was, as Mr Whitwell says, no assessment of whether there was family life with them on a Kugathas basis. Mr Sharma says, well, the judge effectively accepted that there was but nevertheless it seems to me that there needed to be findings on that relationship if there was going to be a proper evaluation of his private and family life under Article 8.

5. There is also the fact that there is no clear finding on the amount of time he has been in the United Kingdom. A stay of no less than 15 years and possibly as long as 35 years is, with respect to the judge, I think unhelpful. There needed to be a clear finding as to the amount of time because of course that is relevant to private life and family life, and again, the judge expressed concerns about the credibility of the appellant's claimed resumption of the relationship with Linda Ponwaye. That is not a clear finding of course, and again, that must be relevant to the whole issue of whether or not there is private and family life, and again, there is the further difficulty adverted to in the grounds and submissions as to the lack of any proper evaluation of the public interest in this case.

6. There is no mention at all of the factors under section 117B that have to be taken into account in an assessment of proportionality. There is no setting out in any clear sense of the Razgar test of how Article 8 is to be approached outside the Rules, and as a consequence I consider that this paragraph is an unsatisfactory evaluation of Article 8 outside the Rules in this case and as a consequence there are material errors of law in this decision. The Secretary of State's appeal is therefore allowed.

7. As regards the proper disposal of this case thereafter, there is no cross-appeal with regard to the findings in relation to the conclusions under the Rules. It is therefore a matter of Article 8 outside the Rules only, and I think, on balance, Mr Sharma is probably right to say that this, as a discrete issue, is probably best dealt with in the First-tier. There is the further evidence that Mr Whitwell has produced. There is the need for clear findings to be made on the various relationships in this case. So, in my view, the matter will have to be reheard before the First-tier Tribunal in Hatton Cross.

Notice of Decision

The Secretary of State's appeal is allowed.

No anonymity direction is made.

Signed Date

Upper Tribunal Judge Allen