The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04844/2018


Heard at Birmingham Civil Justice Centre
Decision and Reasons Promulgated
On 16th May 2019
On 29th May 2019




Mr Chimanlal Damodar Thanki


For the Appellant: Ms E. Norman (Counsel)
For the Respondent: Ms H. Aboni (Senior Home Office Presenting Officer)

This is an appeal against the determination of First-tier Tribunal Judge Jessica Pacey, promulgated on 26th July 2018, following a hearing at Nottingham on 18th July 2018. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant is a male, a citizen of India, and was born on 12th May 1943. He appealed against the decision of the Respondent dated 3rd February 2018, refusing his application to remain in the UK on the basis of his family life with his wife, Mrs A. Thanki, a UK citizen. The Appellant had entered the UK on a visit visa in August 2015 which expired in May 2016. He and his wife both had medical conditions and their son was assisting with his care. The Appellant had no family, assets or home in India, as he claimed. His wife suffered from severe osteoarthritis and was in receipt of PIP. She was cared for on a day-to-day basis by her husband. He himself was a heart patient. He would need to readjust to life in India.
At the hearing before me on 16th May 2019, there was agreement between Ms Norman and Ms Aboni that the judge had erred in law in not considering the exceptional circumstances to the Appellant's claim under the Immigration Rules before turning to Article 8. Although the judge had cited the factual background as well as the relevant case law, she had reached the firm conclusion at the outset that, "the Immigration Rules have not been met because the Appellant is an overstayer. That being so, I turn to consider Article 8 outside the Rules" (paragraph 30).
This was in error because it was part of the Immigration Rules that EX.1 should be considered in terms of any applicable exceptional circumstances to the Appellant's claim. Moreover, the judge had then gone on to consider "the question of proportionality" on the basis of a decision which was a deportation case, but taking the view that "in my view it is appropriate to adopt the same decision-making process" (paragraph 31).
Furthermore, the judge was wrong to have treated the situation before her as one involving a "precarious" family life because the Appellant and his wife had a pre-existing family life at the time when they were already married and living together in India. Yet, the judge had approached the matter on the basis that, "I note that the family life the Appellant had built in the UK had been to some significant extent built whilst he had no leave to be here" (paragraph 36). It is well-established that where family life has already been in existence before a person infringes the Immigration Rules, the position may be materially different.
Ms Aboni submitted that the judge had not considered the Appellant's position in relation to his wife properly and the medical evidence applicable. Ms Norman stated that since the decision by the judge the Appellant had now undergone heart surgery and was not well. These are matters, however, which will need to be considered by another fact-finding Tribunal upon remittal.

The decision of the First-tier Tribunal involved the making of an error on a point of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is remitted back to the First-tier Tribunal, to be determined by a judge other than Judge Jessica Pacey, pursuant to paragraph 7.2(b) of the practice statement because the nature or extent of any judicial fact-finding which is necessary in order for the decision of the appeal to be remade is such that, having regard to the overriding objective in Rule 2, it is appropriate to remit the case to the First-tier Tribunal.
No anonymity order is made.
The appeal is allowed.

Signed Date

Deputy Upper Tribunal Judge Juss 24th May 2019