Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10471/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 17 February 2017
On 21st February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr BADRUL ISLAM
(ANONYMITY DIRECTION NOT MADE)

Respondent
Representation:

For the Appellant: Mr P Singh, Senior Home Office Presenting Officer
For the Respondent: Mr A Miah (counsel) instructed by Londonium, Solicitors

DECISION AND REASONS

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. The Secretary of State for the Home Department brings this appeal but, to avoid confusion, the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Heatherington, promulgated on 10 October 2016, which allowed the Appellant's appeal on article 8 ECHR Grounds.

Background

3. The Appellant was born on 12 December 1986 and is a national of Bangladesh.

4. On 26 October 2016 the Secretary of State refused the Appellant's application for leave to remain in the UK.

The Judge's Decision

5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Heatherington ("the Judge") allowed the appeal against the Respondent's decision on article 8 ECHR grounds.

6. Grounds of appeal were lodged and on 4 January 2017 Judge Parker gave permission to appeal stating inter alia

I have carefully considered the decision. The Judge made no findings concerning the alleged deception; provided no reasons for considering the appeal outside of the immigration rules; gave insufficient reasons for finding that it would be unreasonable to expect the child to leave the United Kingdom and has placed little or no weight upon the public interest, including under s. 117B of the NIAA 2002, when considering proportionality. The decision contains an arguable error of law. Permission to appeal is granted.
The Hearing
7. (a) For the respondent, Mr Singh told me that there are two grounds of appeal. The second ground of appeal relates to a failure to properly consider the reasonableness test set out in section 117B(6) of the Nationality Immigration and Asylum Act 2002. The grounds argue that the consideration of section 117B(6) is incomplete. Mr Singh told me that between [8.3] and [8.6] of the decision the Judge takes correct guidance in law. He told me that he was only relying on the first ground of appeal and was not moving the second ground of appeal.
(b) The first grounds of appeal is that the Judge failed to engage at all with the principal reason for refusal of the appellant's application. The respondent considered the appellant's application under the immigration rules and asserts that the appellant has dishonestly obtained a TOEIC certificate. Mr Singh told me that there was documentary evidence before the Judge, but the Judge ignored that evidence and made no findings of fact at all about the TOEIC certificate relied on by the appellant in an earlier application. He told me that it was a central issue because it related to the appellan't suitability and character. He referred me to SM and Qadir (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC).
(c) Mr Singh told me that, because the dispute over the alleged use of deception is not resolved, and because no reasons are given for considering the appeal outside the immigration rules, the Judge's decision is incomplete. He told me that the Judges failure to make findings of fact are a material error of law. He urged me to set the decision aside and remit the case to the First-tier for a renewed fact finding exercise.
8. (a) Mr Miah, for the appellant, told me that the decision does not contain a material error of law. He told me that even if the absence of consideration of the allegation of dishonesty is an error, it is not a material error because the determinative question in this case relates to the application of section 117B(6) of the 2002 Act. He explained that notwithstanding the obvious errors made by the Judge in the last sentence of [8.2] and the first sentence of [8.5] (where he says that the appellant's daughter is neither a British citizen nor a qualifying child), the Judge's finding that the appellant is married to a British citizen and has a British citizen daughter draw the appeal properly into focus, and render the allegations surrounding a TOEIC certificate irrelevant.
(b) Mr Miah told me that at [8.4] the Judge takes correct guidance in law. At [8.5] and [8.6] he asks, and answers, the correct questions before focusing on the test of whether or not it is reasonable to expect the appellant's daughter to leave the UK. At [8.13] and [8.14] the Judge sets out the relevant findings of fact relating to the appellant's wife and daughter before concluding that the respondent's decision is a disproportionate breach of the right to respect for family life - because the effect of the decision would be to force the appellant's daughter to relocate outside the European Union. Relying on the case of Sanade & Others (British Childern - Zambrano - Dereci)[2012] UKUT 00048 (IAC) the Judge found in the appellant's favour.
(c) Mr Miah told me that the decision reached by the Judge is not necessarily the decision that every Judge would reach, but he insisted it is well within the range of reasonable conclusions that were open to the Judge. He told me that as the respondent moved the first grounds of appeal only, there is now no criticism of the manner in which the Judge approached the article 8 ECHR grounds of appeal. He urged me to dismiss the appeal and allow the decision to stand.
Analysis
9. What is missing from the decision is an analysis of the appellant's claim under the immigration rules. On the facts as the Judge finds them to be, the appellant is married to a British citizen and has a British citizen child. At [8.7], [8.8] and [8.9] the Judge appears to be making findings of fact which have relevance in considering the appellant's application under the immigration rules.
10. The Judge's findings at [8.7] , [8 .8] and [8.9] are contradicted by what he says at [8.2] & [8.5], (where he finds that the appellant's daughter is neither British nor a qualifying child). It is clear, however, that the Judge's findings are that the appellant is married to a British citizen, and that his daughter is a British citizen. Having made those findings, the Judge should have made an assessment of the appellant's claim under the immigration rules. The Judge should have considered the question of suitability. The Judge should have grappled with one of the central issue in dispute. The respondent insists that the appellant cannot meet the suitability requirements of the immigration rules because he dishonestly obtained a TOEIC certificate. The appellant insists that he did not employ dishonesty and that the TOEIC certificate is genuine.
11. The Judge's decision makes no findings of fact about the allegation of dishonesty. Nowhere in the decision is there a determination on whether or not the appellant meets the requirements of the immigration rules. That is an error of law, but is it a material error of law?
12. At [8.12] the Judge summarily declares
I undertook a proportionality exercise

13. The proportionality exercise undertaken by the Judge is no longer criticised by the respondent. The respondent now accepts that the Judge applied the correct legal test and considered reasonableness under section 117B(6) of the 2002 act.

14. Section117B(6) of the 2002 Act provides for the exceptional case where the public interest does not require the removal of a person who is not liable to deportation in a case where (i) he has a genuine and subsisting parental relationship with a child who is either a British citizen or has settled status and (ii) it would not be reasonable to expect the child to leave the United Kingdom.

15. Paragraph 11.2.3. of the respondent's IDIs on Family Migration provides the respondent's decision makers with guidance on cases involving British children. The August 2015 version states that, save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. The respondent's IDIs also state

where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer.

16. The findings that the Judge makes at [8.13] and [8.14] are brief, but there is no criticism of his reliance on the case of Sanade, nor is there now any criticism of his findings in relation to reasonableness. The only ground of appeal moved by the respondent is the first ground of appeal. That leaves only one question from me.

What difference does the absence of findings on whether or not the appellant used dishonesty in an earlier application make to the Judge's decision?

17. Even if the Judge had carried out a complete analysis of the evidence in this case and found that the appellant had employed dishonesty (as that is something which is not resolved, for the avoidance of doubt, I make no finding in relation to the ETS test), the Judge would still have had to move on to make the findings that he does on the question of the reasonableness of the removal of the appellant's British citizen daughter. Even if the Judge found against the appellant, the question of reasonableness of the removal of the appellant's British citizen daughter would have been determinative of this appeal.

18. There is now no challenge to the Judge's direction in law and findings of fact, nor his conclusions, on the question of reasonableness of removal of the appellant's daughter. As that part of the Judge's decision now goes without challenge, the errors made by the Judge in not engaging with significant parts of the evidence in this case do not amount to material errors of law because, whatever findings of fact could be made in relation to those neglected areas of this case, the decision would remain the same.
19. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the Judge draws from the primary data were not reasonably open to him or her.
20. The decision is tainted by errors of law, but it is not tainted by a material error of law.
CONCLUSION
21. The errors of law in the decision are not material errors of law. The Judge's decision stands.
DECISION
22. The appeal is dismissed. The decision of the First-tier Tribunal stands.

Signed Date 20 February 2017

Deputy Upper Tribunal Judge Doyle