Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05006/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 March 2017
On 07 April 2017

Before

THE HONOURABLE MR JUSTICE MITTING
DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

K A
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr K Gayle, Solicitor instructed by Elder Rahimi Solicitors (London)
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a 55 year old Iranian national. He arrived in the United Kingdom in 2000. He applied for leave to remain outside the Immigration Rules in November 2000. He was granted indefinite leave to remain on 23 March 2010. He left the United Kingdom for a short trip to Iran in 2010, returning on 19 October 2010. He left again on 5 January 2011 and did not return. He said he was looking after two sisters, both of whom have since died, one in 2011 and the second subsequently. He applied for entry clearance as a returning resident on an unknown date in 2015. His application was refused under Rules 18 and 19 of the Immigration Rules on 26 August 2015. He gave no details of the reason for seeking entry clearance beyond the fact that he was a returning resident and had remained in Iran to look after his deceased sisters. He applied for administrative review. He gave an additional reason, that he had a disabled adult son in the United Kingdom and wished to return to live with his, the appellant’s, children. He provided no evidence to substantiate the condition of his disabled son or how his needs were met in his absence. The refusal was maintained.
2. He appealed to the First-tier Tribunal. In his notice of appeal drafted for him by one of his daughters, he said this:
“The last four years I was a full-time carer of my sick sisters with whom I was also staying in Iran. I had been supported financially by them. Since they passed away I don’t have any financial support. I already provided the death certificates. Now that my sisters passed away and I have nothing else to do in Iran I want to come back to UK to continue living with my children as I did before. I have a disabled son who needs my help. At the time when I was in Iran caring for my sisters my daughter was taking care of her disabled brother. It is hard for her to look after him as he is vulnerable and dependent on someone’s help full-time. As I am his father and I want to be there for him that’s why I want to return to the UK ... I don’t see any reason why I shouldn’t be allowed to come back to UK and see my children ...”.
3. In a decision and reasons promulgated on 1 September 2016 First-tier Tribunal Judge Jones dismissed his appeal on the simple basis that he did not satisfy the requirements of Rules 18 and 19 of the Immigration Rules. His decision on that aspect of the appeal was undoubtedly correct. He declined to entertain the appeal on Article 8 grounds on the ground that these claims had not been before the decision maker, the Entry Clearance Officer, accepting the submission of the Home Office Presenting Officer that Section 85(5) of the Nationality, Immigration and Asylum Act 2002 precluded him from doing so without her consent.
4. The appellant appealed with the permission of First-tier Tribunal Judge Brunnen given on the basis that the appellant could only appeal under Section 82(1)(b) of the 2002 Act. Therefore the appeal must be taken to have been made on the ground that the refusal of entry clearance infringed the appellant’s rights to respect for his private and family life and so was unlawful under Section 6 of the Human Rights Act 1998, see Section 84(2) of the 2002 Act.
5. Mr Armstrong for the Home Office realistically concedes that as Judge Brunnen observed this appeal had to be on human rights grounds, that was the only ground upon which it could be considered. Accordingly, looking at the substance rather than the wording of the appeal document it did raise human rights grounds which should have been considered.
6. Judge Jones was in error in declining to consider those grounds, his error was fundamental to his decision. We are not in a position to be able to make appropriate findings of fact. We therefore allow this appeal and remit it to the First-tier Tribunal for further determination.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 4 April 2017

Mr Justice Mitting

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date 4 April 2017

Mr Justice Mitting