Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/09132/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 September 2016
On 5 October 2016

Before

UPPER TRIBUNAL JUDGE FREEMAN

Between

Fahmida [A]
(ANONYMITY DIRECTION NOT made)
appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr R Khosla, solicitor, D J Webb & Co
For the respondent: Mr I Jarvis,

DECISION AND REASONS

1. This is an appeal against a decision of Judge Manjit Obhi sitting at Birmingham. The appellant was born in Bangladesh on 10 January 1987, and in 2014 she was given leave to enter as a student until August 2015 when she applied, in time, for further leave to remain on the basis of her private and family life with her husband, who had been given indefinite leave to remain on 24 February last year.

2. On 12 October further leave to remain was refused, and the appellant appealed, on the basis that she was now expecting her husband's child, who was in fact born on 8 November. On 8 December both the appellant, who was acting in person at that stage, and her husband sent in typed letters to the judge at Birmingham, signed by them, with a copy of the child's birth certificate attached, and a copy of all that correspondence was faxed on the same day to the Home Office at Birmingham where it appeared on their file.

3. The judge dealt with the case without a hearing on 19 January, and dismissed the appeal on the basis that she accepted the child had been born; but not the child was a British citizen by birth. That being so, the case did not come within E-LTRP.2.2 or EX.1 of the Rules and she took the view that there would be nothing to stop the appellant and her husband returning to Bangladesh together with their new baby, and it would be reasonable to expect that child to go with them.

4. The main ground of appeal was that the child was indeed a British citizen by birth since, as I have already mentioned, her father had been given indefinite leave earlier in the year. However the Home Office say in their r. 24 response that this was a new matter under s. 85(6) of the Nationality, Immigration and Asylum Act 2002, as it now stands; so the judge had had no jurisdiction to consider the child as a person at all. S. 85(6) of the 2002 Act provides that a matter is a "new matter" if it constitutes a human rights ground, and has not been previously considered by the Secretary of State. Mr Jarvis is prepared to accept that the notice of appeal, mentioning the appellant's pregnancy, might be taken as a section 120 statement on her part; but the permissible evidence before the judge went no further than that.

5. It is of course quite true that pregnancies do usually lead to the birth of children and the Home Office guidance itself 'Version 3.0 Rights of Appeal' mentions at page 25 as a case amounting to new evidence but not a new matter, one where "an application has been made for leave to remain as a parent but additional children had been born". That is just an example; but it seems to me that it raises a different kind of point from the one we are discussing in this case. At the time the notice of appeal was given the appellant could not put herself forward as a parent at all. She only became one on 8 November and that fact was duly notified to the Home Office on 8 December.

6. The problem was that nobody on the Home Office side then considered it before the judge reached her decision on 19 January this year. This was, to say the least, not helpful. When the judge did reach her decision she did not consider whether or not the birth of the child was a new matter. That point had not been raised by the Home Office. If it had not been a point going to her jurisdiction to consider it, then there would have been no problem; but s. 85(5) of the 2002 Act, as it now stands, says in terms that the Tribunal must not consider a new matter unless the Secretary of State has given the Tribunal consent to do so.

7. With the best will in the world, I do not think I can spell consent out of the Secretary of State's silence between 8 December and 19 January, although some reaction to the letters and the birth certificate would have been desirable to say the least. It seems to me that the judge did not have jurisdiction to consider the appellant's situation as a parent, and the question is what the result of that conclusion should be.

8. The main point on which permission was given was the judge's mistake about the child's nationality, although it was said, as a consequence of this, that it was arguable the judge had not considered the appellant's family life in the correct context.

9. It seems to me that the judge should not have considered the applicant's situation as a parent at all, although, as it turned out, she did so on the wrong basis that the child was not a British citizen. Looking at the reality of this case, it seems to me that that was the only substantial ground on which this appeal could and no doubt should have been allowed, subject to the Secretary of State's consent to the judge considering the birth of the child, and the result is that the challenge for which permission was granted fails and the decision to dismiss the appeal stands.

10. However, the case does not stop there by any means, because Mr Jarvis has considered the evidence about the birth of the child, and undertaken that, on a fresh application, the appellant would be granted leave to remain. Given the fact that the appellant and her husband did their level best to make the Home Office aware of the situation by sending in the letters and birth certificate on 8 December, and the fact that she was acting in person at that time it seems to me that she ought not to be required to pay any fee for that application.

Appeal
(a judge of the Upper Tribunal)
5 October 2016