Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11449/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke-on-Trent
Determination Promulgated
On 24th November 2016
On 25th November 2016

Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE MARTIN

Between

MR GABER MORSY
(Anonymity Direction Not Made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: The Appellant in person, assisted by his step-daughter, Ms K Hewitt
For the Respondent: Mr C Bates (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is an appeal to the Upper Tribunal by the Appellant, permission having been granted by a Judge of the first-tier Tribunal on 10th August 2016. The First-tier Tribunal Decision and Reasons under challenge is a decision of Judge Kempton promulgated on 9th March 2016. She decided the appeal on the papers in accordance with the Appellant's request, he having paid the fee for a paper consideration rather than for an oral hearing.
2. The Appellant, born on 27th November 1972 and a citizen of Egypt originally came to the UK as a spouse on 12th April 2011. He was refused further leave to remain, we understand on financial grounds and became appeal rights exhausted on 27th March 2015. He was then issued with a notice as a person liable to be removed from the UK. On 24th August 2015 he made an application for leave to remain on the basis of his family and private life in the UK. He is the spouse of a British citizen and while the Secretary of State acknowledged that the relationship was genuine and subsisting considered that he did not qualify under paragraph R-LTRP of Appendix FM to the Immigration Rules because he did not come within Ex.1 , there being no insurmountable obstacles to his enjoying family life in Egypt.
3. The Secretary of State also considered paragraph 276 ADE of the Immigration Rules and concluded that he did not meet the requirements of that paragraph either.
4. Judge Kempton set out the reasons for the refusal in some detail at paragraph 6 of her judgment and noted that the Appellant's grounds of appeal indicated that he wished to be with his wife because she needs him and that he is her carer. He said that he wished to live a normal life and not live in fear of deportation at any time. His wife was in a critical health situation. He had arrived in the UK legally but as he had insufficient money he was unable to apply for indefinite leave to remain.
5. At paragraph 8 the judge expressed her regret that the Appellant had opted for a paper appeal and was without a representative. There was a dearth of documentary evidence to assist the Judge and no witness statements. The Judge noted at paragraph 10 that whilst it was clear that the Appellant's wife had a poor spell of ill-health she did not know, on the basis of the evidence provided, how her health affected her at the date of her consideration of the case or what help she requires from others, in particular the Appellant. There was no statement from the wife indicating the care provided by the Appellant and no evidence about the issue of the couple relocating to Egypt or evidence of other ties that his wife had in the UK.
6. Judge Kempton dismissed the appeal.
7. The Appellant, still unrepresented, applied for permission to appeal. He did so providing further details as to his wife's state of health and clarifying the situation with regard to carer's allowance and benefits.
8. The First-tier Tribunal Judge who considered the application for permission to appeal noted that the grounds comprised statements of material fact not previously placed before the Respondent or before any First-tier Tribunal Judge. The Judge also noted that the conduct of the proceedings by Judge Kempton was, on the face of it, proper, in accordance with the Procedure Rules and evidence led. The Judge also noted that the Appellant had chosen a paper hearing and made little effort attempt to present evidence. The Judge also noted that the Decision and Reasons of the First-tier Tribunal was predicated on the finding that there was no evidence to justify a conclusion that there were insurmountable obstacles to married life between the Appellant and his British wife continuing in Egypt and no disproportionate interference to private and family life should the Appellant be removed.
9. The Judge should have stopped at that point and refused permission to appeal. However, astonishingly, the Judge went on to consider that if the new evidence showed that there were in fact insurmountable obstacles, there may be an injustice in the decision to remove the Appellant and found that it was "fairly arguable that the Appellant has suffered procedural unfairness and has not had adequate opportunity, given his lack of means and advice, to present his case."
10. A judgment of the First-tier Tribunal can only be set aside if it contains an error of law which if not made might have led to a different outcome. The Judge must have done something wrong either procedurally or in the way in which she dealt with the evidence or have been mistaken as to material facts before it can be said that she has made an error of law. The Judge who granted permission in this case made clear himself that the Judge had made no error of law. In granting permission to appeal, wrongly, the Judge has only achieved the giving of false hope to this Appellant. It is abundantly clear that Judge Kempton made no error of law in her Decision and Reasons. She made proper findings on the basis of the wholly inadequate evidence adduced. It has never been an error of law for a Judge to fail to take into account evidence that was not before her.
11. This is an example of a case where permission to appeal should never have been granted. Doing so has merely added delay and given false hope to the Appellant.
12. If the Appellant has evidence to indicate that his application should succeed then he should make a fresh application to the Secretary of State enclosing all relevant evidence. We and the Appellant had the advantage of Ms Hewitt who had attended to assist him. We explained all this to her and are confident that she fully understood.
13. The First-tier Tribunal's decision containing no error of law, material or otherwise, the appeal to the Upper Tribunal is dismissed.

Signed Dated 24th November 2016

Upper Tribunal Judge Martin