Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/09327/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 31st March 2017
On 20th April 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

Mr. Fakhrul ISLAM
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Latif of Latif Solicitors.
For the Respondent: Mrs. R. Pettersen, Home Office Presenting Officer.

DECISION AND REASONS
Introduction
1. The appellant is a national of Bangladesh, born on 4 January 1985. He came to the United Kingdom in 2011 as a student. His visa was valid until April 2013.
2. In November 2013 he was granted further leave to remain until 22nd August 2015.
3. On 18 August 2015 he made a further application for leave to remain on the basis of his article 8 rights as the unmarried partner of a British citizen, Mrs Wells. His application was refused on 6 October 2015. In the application he stated they had been cohabiting since December 2014.The respondent pointed out therefore they had not been living together for at least two years in a relationship akin to marriage. Consequently, the definition of partner in the rules was not satisfied. Furthermore, his partner was married. Whilst the appellant stated she was in the process of obtaining a divorce the respondent was not satisfied that this relationship had broken down permanently. Furthermore, he had not provided the required evidence under appendix FM SE of his partner’s income. The rules required specified proofs to show the income threshold of £18,600 was met. His partners stated income amounted to £15,600.
4. The respondent referred to the exceptions to the requirements at EX1 but did not see any insurmountable obstacles to the relationship continuing in Bangladesh.
5. Regarding private life and paragraph 276 ADE, he had not been living here the necessary 20 years and it was felt he could reintegrate into life in Bangladesh.
6. The grounds of appeal contended that the couple had been in a relationship shortly after they met in April 2013 albeit they cohabited later.Mrs Wells was married in August 2009 but that relationship ended shortly afterwards and they have been apart for a number of years. Regarding income, it was contended that Mrs Wells had income from other employment. It was also contended that the appellant could benefit from EX1. A freestanding article 8 claim was also made on the basis that Mrs Wells lived with her 16-year-old son.
The First tier Tribunal.
7. The appellant's appeal was heard by First Tier Judge Hindson on 17 August 2016 and was dismissed on human rights grounds. Paragraph 8 of the decision states:
`Both representatives agreed that this is a stand-alone article 8 appeal. The application was made on 18 August 2015 and so there is no right of appeal under the Rules.’
This statement is repeated at paragraph 13.
8. The judge found that the couple were in a genuine relationship.Mrs Well’s son by that stage was also in a relationship and had a child born in March 2016. His partner and their child lived with the appellant and Mrs Wells but the child's father was working away from home. The judge mistakenly stated that the child's father was an adult. The judge found the existence of a family life between the appellant and Ms Wells but not the other members of the household. At paragraph 18 the judge stated:
The circumstances of the appellant (and) Ms Wells are covered by the rules and they are far from being able to satisfy them. Sensible immigration control is in the public interest and the rules provide for that in most cases. I can find no compelling circumstances for allowing this appeal outside those rules …
The Upper Tribunal.
9. Permission to appeal was sought on the basis the judge failed to deal with paragraph EX1 of the rules and the question of insurmountable obstacles. It was submitted this was raised in the grounds of appeal and at hearing.
10. It was also argued that the judge was mistaken as to the age of Mrs Well’s son and this affected the conclusion that he was not part of the family life enjoyed.
11. Permission to appeal was granted because of the judge's failure to engage with the immigration rules.
12. The respondent lodged a response under rule 24 opposing the appeal. It stated that both representatives had agreed this was a stand-alone article 8 appeal and there was no indication that the rules could be met. In any event, the judge concluded the rules were not met and there were no insurmountable obstacles to the couple living in Bangladesh.
13. At hearing, Mr Latif pointed out that he had appeared for the appellant in the First-tier Tribunal. He was adamant he had not conceded at hearing that a claim under EX1 of the rules was being abandoned. He said that his skeleton argument had argued grounds within and outside the rules. He stated that the immigration judge required time to consider the appeal rights and rose.
14. In response, Mrs. Pettersen submitted that if Mr Latif was giving evidence about what happened at the original hearing he should have filed a witness statement. Having made the point however she referred to the presenting officer's notes which refer to a discussion at the outset about the grounds of appeal open to the judge. The indication from the note was that Mr Latif had conceded that the requirements of appendix FM and FM SE could not be met but reliance was being placed upon EX1. I note from the judges note there is a short reference to a preliminary discussion but no details are recorded. Mrs. Pettersen accepted that the judge should have said more about EX1. in the decision.

Consideration.
15. It would appear from the decision that the judge mistakenly believed there was no right of appeal under the immigration rules. The reference to the date of the application at paragraph 3 would suggest that the judge has confused the limited rights of appeal in out of country appeals from those relating to in country appeals. Consequently, the judge erred in law in suggesting there was no right of appeal under the immigration rules. This meant EX1 was not considered.
16. It appears that the judge was mistaken as to the limited extent of the concession by Mr Latif: namely, that the requirements of the rules could not be met. Mr Latif was intending to rely upon EX 1. Mrs. Pettersen correctly points out that Mr Latif should have provided a witness statement to this affect in advance so the point could have been considered earlier. However, the evidence supports his contention.
17. I do not find the mistake as to the age of Mrs Wells’ son amounts to a material error of law in the article 8 evaluation. However, the exclusion of EX 1 from consideration, in the absence of abandonment by the representative, amounts to a material error of law. Consequently, the decision cannot stand. I direct that the appeal be relisted before the First-tier Tribunal for a de novo hearing.
Decision.
The decision of First tier Judge Hindson dismissing the appeal materially errs in law and cannot stand. The appeal is remitted for a de novo hearing to the First tier Tribunal.

Deputy Judge Farrelly 15th April 2017

Directions
1. Relist in the First-tier Tribunal for a de novo hearing before any judge except First tier Judge Hindson.
2. If an interpreter is required the appellant’s representatives should advise the tribunal.
3. The parties should prepare updated bundles as necessary.

Deputy Judge Farrelly
15th April 2017