Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11453/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 27 January 2017
On 06 February 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

NURUL ASHRAF
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr I Graham, Eden Law
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Bangladesh. Despite having remained in the UK as an overstayer since early 2006, the respondent granted him leave to remain on family life grounds from 3 November 2012 until 3 May 2015. This was granted on the basis of his marriage in 2012 to a person present and settled in the UK. He and his wife have three children, all British citizens, aged 2, 4 and 5. On 6 April 2015 he applied for further leave to remain. This was refused on 10 November 2015. The appellant appealed. On 4 August 2016 First-tier Tribunal (FtT) Judge Parker dismissed his appeal. Judge Parker did find, however, that the respondent had been wrong to refuse him on suitability grounds.

2. The appellant's grounds of appeal were in essence that the judge failed to apply the requirements of the Immigration Rules correctly and failed to make a proper proportionality assessment. In her Rule 24 notice the respondent did not challenge any of the judge's findings of fact and expressed agreement with the grounds of appeal. In granting permission to appeal, Judge Keane noted that the judge erred in failing to consider whether the appellant could meet the requirements of EX.1(b) of the Rules.

3. I am grateful to both representatives for their concise submissions.

4. I find that the FtT judge materially erred in law. Having (for valid reasons) concluded that the respondent was wrong to find that the appellant failed to meet the suitability requirements, the judge's subsequent decision, that the appellant could not meet the requirements of the Rules because he failed to meet the financial requirements, was erroneous, since the appellant was entitled to be considered independently under EX.1(b). This failure on the part of the judge had a material effect on the outcome of the appeal.

5. With the consent of both parties I proceeded to hear their submissions on the decision I should re-make. Both agreed that there was no challenge to the judge's principal findings of fact and Mr McVeety confirmed that the respondent accepted that the FtT Judge was correct to find that the suitability requirements of the Rules were met. Mr McVeety also accepted that in light of the judge's findings there could be no dispute that the appellant and his wife were both in a genuine and subsisting relationship and that both continued to permanently live with one another as husband and wife. Mr McVeety also accepted that the three children were British citizens and, indeed, Mr Graham was able to produce their British passports to me. Mr McVeety also accepted that it was not realistic for the respondent to seek to argue in this case that it would be reasonable to expect the appellant's wife and three British citizen children to accompany the appellant to resume family life in Bangladesh. In my judgment, that was a sensible approach and one that I adopt.

6. I am entirely satisfied that the appellant is entitled to succeed under the Immigration Rules on the basis of EX.1(b) and that he also meets the suitability requirements. It is clear in my view that the only reason the respondent did not extend the appellant's leave to remain was because of her view that he did not meet the suitability requirements. Whilst it is understandable that the officer concerned wished to be vigilant to ensure that persons with a history of domestic violence were able to qualify under the Rules, it is clear that at the date of decision the domestic violence protection order issued against the appellant on 6 August 2015 (preventing him from contact with his spouse or entering her home) was limited to the period from 6 August 2015 to September 2016 (28 days) and had not been renewed; and the respondent's refusal decision itself noted on the last page that the appellant was back living with his partner and engaging in a parental relationship with the children. The unchallenged evidence before me confirms that the couple remain living together as husband and wife, the appellant continues to have a strong parental relationship with his three children and there are no continuing concerns as to the couple's relationship on the part of the Social Services.

7. For the above reasons I conclude that:

The FtT Judge materially erred in law and his decision is set aside.

The decision I re-make is to allow the appellant's appeal because he meets the relevant requirements of the Immigration Rules. This also means in the circumstances of this case that the inevitable result of my proportionality assessment outside the Rules would be to allow the appeal on Article 8 grounds.

No anonymity direction is made.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal