Tribunal decisions

The decision

IAC-AH-DP-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/06660/2015
HU/06663/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 9th January 2017
On 13th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr Rajiv [D] (first appellant)
[s d] (a minor) (second appellant)
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Ashraf - Counsel
For the Respondent: Miss J Isherwood, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellants are citizens of India. The first Appellant was born on 23rd July 1981. The second Appellant who is his minor daughter on 19th July 2008. Neither Appellants are British citizens. The first Appellant entered the United Kingdom on 16th July 2004 on a student visa. That visa was subsequently renewed on three occasions and thereafter the Appellant was granted leave to remain as a Tier 2 Migrant. That leave was curtailed on 4th September 2012 but prior to then the first Appellant applied for leave to remain outside the Rules on 14th May 2012 which was rejected. A further application for indefinite leave to remain on 1st August 2012 was also rejected. The current application was met with a Notice of Refusal dated 21st September 2015. Unless otherwise stated herein all references are to the first Appellant. The position of the second Appellant rises and falls as a dependant on that of the first Appellant. The only difference so far as her visa position is concerned is that all applications were made as a dependant and that she was born in the United Kingdom on 19th July 2008 and her first application for leave to remain as a dependant was made on 1st October 2009.
2. The Appellant appealed the Notice of Refusal and the appeal came before Immigration Judge Heynes sitting at Manchester on 29th June 2016. In a decision and reasons promulgated on 15th July 2016 the Appellant's appeal was dismissed both under the Immigration Rules and pursuant to Article 8 of the European Convention of Human Rights.
3. Grounds for permission to appeal to the Upper Tribunal were lodged on 25th July 2016. On 1st November 2016 First-tier Tribunal Judge Bird granted permission to appeal. Judge Bird noted that the Appellant sought permission to appeal on the grounds that the judge failed to properly assess whether or not the first Appellant qualified under Appendix FM R-LTRPT1.1(d) and EX.1 in that the judge failed to consider that the second Appellant was born in the United Kingdom and had spent seven years continuously living in the United Kingdom prior to the date of application. Judge Bird considered that in failing to consider whether or not the requirements of Appendix FM R-LTRPT1.1(d) and EX.1 were met the judge had made an arguable error of law. He considered the judge had only considered the application under paragraph 276ADE in relation to private life. He further noted that the grounds also argued that in relation to private life under paragraph 276ADE the judge was alleged to have made an arguable error of law in overlooking the evidence on whether or not the second Appellant spoke or understood English and his conclusions on this may be contradictory. Further the judge may have made an error by making an assumption that the second Appellant did not have a freestanding right under the Immigration Rules. Finally he concluded that in failing to consider this and the fact that the second Appellant had an appeal in her own right the judge had failed to take into account the human rights of the second Appellant as well as those of her grandparents and uncle.
4. On 21st November 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. The Rule 24 response notes that the judge had at paragraph 21 noted that the second Appellant had been in the UK for seven years and that the judge considered whether it will be reasonable to expect the second Appellant to leave the UK with her father. The Rule 24 reply points out that this is set out at paragraphs 22 to 30 of the First-tier Tribunal Judge's decision and that the judge properly considered all the relevant issues and made adequate findings of fact.
5. It is on this basis that the appeal comes before me to determine whether or not there are material errors of law in the decision of the First-tier Tribunal Judge. The Appellants appear by their instructed Counsel, Mr Ashraf. The Secretary of State appears by her Home Office Presenting Officer, Miss Isherwood.
Submissions/Discussions
6. Mr Ashraf starts by submitting that there was a failure by the First-tier Tribunal Judge to analyse the documents provided, consider the facts and arguments and submissions and erred in law by not following the principles laid down in case law and within the Rules. He points out that it is accepted that the second Appellant has been in the UK for seven years and that the judge erred by concluding that it was entirely reasonable to expect the second Appellant to leave the UK with her father even when there was evidence of family society, social and educational ties in the UK. He relies on the guidance given in Azimi-Moayed and Others (decisions affecting children; onward appeals) [2013] UKUT 197 (IAC). He submits that whether or not it is reasonable to expect the second Appellant to leave the UK is a burden that is placed initially on the Secretary of State and that there have been no real reasons given by the judge. He points out that the second Appellant speaks very little Hindu and that her first language is English.
7. In response Miss Isherwood submits there is no error of law and that the appeal of the second Appellant is dependent on the first Appellant and the skeleton argument concentrated on the reasonableness of return particularly on the second Appellant. She refers me to the authority of MA (Pakistan) and Others [2016] EWCA Civ 705. She acknowledges that the second Appellant was born in 2008 and that the judge has acknowledged the correct Immigration Rule being paragraph 276ADE(1)(iv). She acknowledges that the Appellant is under the age of 18 and at the date of application had continuously lived in the UK for seven years. Consequently Miss Isherwood points out the judge has recited the Rule and that this whole appeal turns on reasonableness. She thereafter takes me to paragraph 30 and submits that the judge has given reasons and that it is irrelevant that another judge might well have come to a different decision.
8. In response Mr Ashraf submits that the judge has not considered all the facts and evidence and the best interests of the child pursuant to Section 55 of the 2009 Act before concluding that it is reasonable for the second Appellant to leave the UK with her father. He points out that if she is returned English is not the official language and that the judge has placed far too much emphasis on her ability to speak English as being a perfectly good reason why she could return. He refers me to paragraph 30 of the decision. He emphasises that the decision is not balanced and the judge has not considered the welfare of the child. He reminds me that there is no mother around, that the second Appellant's grandparents live here and that she is doing well at school. He submits that it is ridiculous for it to be suggested that she could catch up in an Indian school and that the correct approach would have been for the judge to allow her to remain here and not disrupt her family life. Further he points out the judge has failed to address the issues as to why the second Appellant should remain and that the decision is perverse bearing in mind that the decision is to be made on a balance of probabilities. He further emphasises that the judge has not considered the relevant case law and addressed the matter on the balance of probabilities and carried out the appropriate balancing act. He points out that the second Appellant will only have the first Appellant available to look after her and none of the remaining family network would be with her. He asked me to find that there are material errors of law in the decision of the First-tier Tribunal Judge and to remit the matter back to the First-tier Tribunal for re-hearing.
The Law
9. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
10. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
11. This appeals turns on whether or not the First-tier Tribunal Judge erred in law in refusing the Appellant's appeal and his findings particularly with regard to the reasonableness factor to be applied as to whether or not she should or should not leave the United Kingdom when considering paragraph 276ADE(1)(iv). The question is whether or not the judge has given full and appropriate reasons or whether the submissions of the Appellant's legal representatives amount to nothing more than mere disagreement. As a starting point I acknowledge that the role of the Upper Tribunal when considering this matter is merely to determine whether there is an error of law. It is not the role of this Tribunal at this hearing to comment on whether or not a different judge would come to a different conclusion. Having said that I find that there are material errors in the decision of the First-tier Tribunal Judge. Whilst he has recited paragraph 276ADE(1)(iv) and noted factors at paragraphs 23, 24 and 26 his findings at paragraph 30 are limited in the extreme. There are contradictory paragraphs whether or not the second Appellant speaks Hindi, the judge has given scant consideration to the position of the Appellant's grandparents and family life that is enjoyed between them and has failed to give due and proper consideration to the fact that the Appellant would be returning to India with her father and not her mother. He also seems to have failed to have given due consideration to her education and overall family life and importantly fails to have applied the principles at all to be found in Section 55 of the 2009 Act in considering the best interests of the child.
12. Whilst the First-tier Tribunal Judge at paragraph 33 contends it is not necessary to recite case law that in fact is contrary to the role of the First-tier when providing necessary assistance to the court. Guidance is given in MA (Pakistan) [2016] EWCA 705 and in particular in the Court of Appeal in MM (Uganda) [2016] EWCA Civ 450 where Elias LJ held that the fact of seven year residence must be given "significant weight" and that there would need to be strong reasons for leave not to be granted in such circumstances. It seems clear that unfortunately the judge has failed to give due and proper consideration to the most recent authority of Court of Appeal guidance. That is not to say that another judge will come to different conclusions to those of the First-tier Tribunal Judge but what is important is that the law is properly considered. That unfortunately has not been the case in this appeal and I find for all the above reasons that the decision is not one that merely amounts to disagreement but contains material errors of law. I consequently set aside the decision of the First-tier Tribunal Judge and give directions herein for the re-hearing of this matter.

Notice of Decision
The decision of the First-tier Tribunal Judge contains material errors of law and is set aside. The matter is remitted to the First-tier Tribunal for re-hearing. Directions are set out herein after for the re-hearing of this matter.
(1) That the appeal is remitted to the First-tier Tribunal sitting at Manchester on the first available date 28 days hence.
(2) That the appeal is to be before any Immigration Judge other than Immigration Judge Heynes.
(3) That none of the findings of fact are to stand.
(4) That the estimated length of re-hearing is two hours.
(5) That there be leave to either party to file and serve a bundle of up-to-date subjective and objective evidence upon which they seek to rely, along with any skeleton arguments and/or authorities upon which they seek to rely at least seven days prior to the restored hearing date.
(6) That in the event that the Appellant requires an interpreter his legal representatives do advise the Tribunal within seven days of receipt of these directions.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris