Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10805/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 17 November 2016
On 22 November 2016

Before

UPPER TRIBUNAL JUDGE KEKI?

Between

INOKA [A]
(anonymity order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Representation:

For the Appellant: Mr Z Hussain. Solictitor
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. This appeal is brought by the Secretary of State however for convenience I shall refer to the parties as they were before the First-tier Tribunal.

2. The appellant is a national of Sri Lanka born on 16 November 1977. She entered the UK in June 2008 as the dependant of her student husband but a subsequent application for indefinite leave to remain was refused on 13 April 2015. A further application was refused, on 25 July 2015. On 7 September 2015 the applicant sought to remain as a spouse. This was refused on 29 October 2015 because the appellant did not meet the requirements of D-LTRP.1.3., E-LTRP.2.2(b) and 3.2 (b), R-LTRP.1.1.(a), (c)(i) and (d)(i), (ii) and (iii), EX.1.(a) of Appendix FM and paragraph 276ADE(1)(iii), (iv), (v) and (vi) of the Immigration Rules.

3. The appeal against the refusal of the application was determined on the papers at Glasgow by First-tier Tribunal Judge Clough and in a determination promulgated on 26 May 2016, the appeal was allowed on article 8 grounds.

4. The judge found that the appellant could not meet the requirements of the Immigration Rules (at paragraph 9). She found, however, that the appellant had family life with her husband and child (both now settled in the UK), that removal of the child would interfere with family life, that failure of the life in the UK test was the "only reason" she had failed in her original claim and, that as she had a bad back, she had an excuse for that. She noted that the appellant spoke English and that her husband supported her financially and that these amounted to reasons why "I can consider article 8 over and above the Immigration Rules".

5. The respondent obtained permission to appeal on the basis of the inadequately reasoned findings and conclusions.

6. At the hearing before me on 17 November 2016, a preliminary issue on timeliness was raised by Mr Hussain. He argued that the respondent had made her application for permission to appeal a day late and he argued that the application should be rejected on that basis. I considered that this objection had been raised this morning for the first time and given that late objection and the minimal period of delay, I considered it was fair and just to extend time.

7. I then heard submissions from the parties. Mr Melvin submitted that the judge had failed entirely to consider whether there were obstacles to the continuation of family life in Sri Lanka or whether there were any compelling circumstances which warranted a grant of leave. There was no consideration of the rules and inadequate consideration of the matter outside the rules. The appellant's ability to speak English and maintain herself were neutral matters.

8. Mr Hussain submitted there was adequate consideration despite the brevity of the determination. The judge considered factors such as the child's schooling and she also considered the Razgar guidance and s.117B. She found that family life existed. Whilst the decision could have been more detailed and reasoned, the judge had done enough.

9. In response, Mr Melvin pointed out that the judge did not have any evidence before her of the child's schooling and so that was not a finding.

10. At the conclusion of the hearing I notified the parties that I would be finding that the First-tier Tribunal Judge had erred in law and that her detention would be set aside. I now give my reasons for that decision.

Findings and conclusions

11. The determination is brief and the findings are limited. There has been no application of the rules or any consideration of whether family life could continue in Sri Lanka. These are matters which should have been considered. The judge appears to have given weight to the appellant's ability to speak English and of her husband's ability to maintain her but at best these are neutral factors under s.117B and cannot advance her claim. There was no evidence before her of the child's schooling and nothing to suggest that the child could not be educated in Sri Lanka. In all, the judge gave weight to irrelevant matters and failed to have regard to matters which should have been considered. It follows that she made errors of law. Her determination is unsustainable and I set it aside.

12. The parties agreed that the matter should be remitted to the First-tier Tribunal for a fresh decision. Although the appeal had been determined on the papers, the appellant now seeks an oral hearing.

13. Decision

14. The determination contains errors of law such that the decision is set aside. The matter is remitted to the First-tier Tribunal for a hearing at which the decision shall be re-made.

15. There has been no request for an anonymity order and I therefore do not make one.

Signed

Upper Tribunal Judge

Date: 17 November 2016