Tribunal decisions

The decision

St

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08831/2016
HU/10987/2016, HU/10983/2016
HU/11002/2016, HU/09624/2016

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 31st March 2017
On 4th April 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

N.B.
S.B.
s.a
my
hk
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Mahmood, Counsel, instructed by Kubelaw Solicitors.
For the Respondent: Mrs. R.Pettersen, Home Office Presenting Officer.

DECISION AND REASONS
Introduction
1. It is the Secretary of State who is appealing in these proceedings. For convenience, I will continue to refer to the parties as they where in the First-tier Tribunal.
2. All of the appellants are Pakistani nationals. The first appellant obtained entry clearance as a spouse, namely, the wife of Mr. FA, a British national. The leave was valid from March 2013 to December 2015. The remaining appellants are their children.
3. In January 2016 application was made for further leave to remain on the basis of family and private life. This was refused in March 2016. The respondent had regard to appendix FM of the immigration rules. She did not meet the eligibility requirements because the sponsor was unable to demonstrate the required income of £29,600 by the proofs specified.
4. The respondent considered paragraph EX 1 and accepted the genuine and subsisting nature of the relationships. However, the respondent concluded family life could continue in Pakistan.
5. The requirements under paragraph 276 ADE were not satisfied, with the respondent concluding that there were no significant obstacles to integration into Pakistan. No exceptional circumstances were identified for a grant outside the rules.

The First tier Tribunal
6. The appeal was heard by Judge of the First-tier Tribunal Head-Rapson.The judge concluded that EX 1. did not apply.
7. The judge recorded that the sponsor did not have the required income. At the time of entry all the children were minors and were granted entry clearance as dependents. Three are now adults, though not living independently of the appellant and sponsor. The judge recorded that the family do not have any property in Pakistan, having left everything to start life afresh here. The sponsor is nearly 80 years of age and the judge concluded it was unlikely he would gain employment.
8. First tier Judge Head -Rapson allowed the appeals under the immigration rules and article 8. The judge concluded it was in the best interests of the youngest child to remain in the United Kingdom. Two of the other appellants are at College and one is working. The judge finished by stating:
`I have considered the legitimate aim of maintaining effective immigration control but find that the grant of leave outside of the rules is appropriate. I find that the degree of disruption if the appellant and her family were to return to Pakistan is not proportionate. If I am incorrect in my decision that I find that article 8 will be breached... I therefore find that the family can legitimately be said to have a private life in the UK such that it would be unduly harsh to remove them.'

The Upper Tribunal
9. The respondent sought permission to appeal. In a determination consisting of 76 paragraphs, 74 related to case law, statutes or generic matters. The findings at paragraph 75 where that it was in the best interests of the minor appellant to remain in the United Kingdom with his family and that it would be unduly harsh to remove the appellant. No reasons were given and it was submitted there had been no relevant analysis. The respondent pointed out that family life could continue in Pakistan and that the youngest appellant has only been in the United Kingdom since April 2013.
10. Permission to appeal was granted on the basis the findings and reasons made were inadequate.
11. Mr.Mahmood, Counsel for the appellants, advised that he appeared at the First-tier hearing. He frankly conceded that the decision was unsustainable. The respondent was not represented at the hearing but all relevant factors were raised by him in submissions. However, these are not reflected in the decision.
12. I am obliged to Mr Mahmood for his candour. The decision is clearly unsustainable. Essentially it consists of large chunks of extracts from case law and statute with no real application made to the facts of the appeal. The financial requirements under the immigration rules were not met. The few case specific statements are incorrect. For instance, it is stated EX 1 does not apply. It is applicable: the question is whether the appellants benefit. The respondent accepts the appellant has a genuine and subsisting relationship with her sponsor. The respondent concluded she did not benefit from EX1 rather than it not applying. In the conclusions the judge appears to allow the appeal on the basis of family life and in the alternative private life without giving any adequate reasons.
13. It was incumbent upon the judge to consider firstly whether the immigration rules were met, either substantively or on the basis of the exceptions. Case specific reasons had to be given. The judge then had to consider whether there was justification for freestanding article 8 assessments. In doing so the judge would have to highlight specific features which made this appropriate and indicate the public interest factors taken into account and explain why the decision was or was not proportionate. Generic statements are insufficient.

Decision.
14. The decision of First tier Judge Head-Rapson allowing the appeals materially errs in law and cannot stand. The appeals are remitted for a de novo hearing to the First tier Tribunal.

Deputy Judge Farrelly 31st March 2017