Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/13268/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 October 2016
On 20 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

GHINA [J]
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Representation:

For the Appellant: Mr A Burrett, Counsel, instructed by Saracens Solicitors
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS
Background
1. The appellant in this case is a citizen of Lebanon born on 7 July 1989. The respondent, in a decision dated December 2015, refused the appellant's application for leave to remain as the spouse of a person present and settled in the UK.
2. In a decision promulgated on 8 April 2016, made on the papers, Judge of the First-tier Tribunal Mensah dismissed the appellant's appeal under the Immigration Rules and Article 8. The appellant appealed with permission.
Error of Law
3. The appellant appealed on the grounds that she was refused because she did not meet the requirements of the English language test at paragraph 284(ix)(a) and Appendix FM of the Immigration Rules. It was argued that the judge failed to take into account documents lodged with the appellant's notice of appeal of relevance to Article 8; secondly, it was argued that the judge had failed adequately to engage with the original grounds of appeal, with reference to the question of whether there were insurmountable obstacles to family life in Lebanon; thirdly, the judge had failed to adequately consider, or to consider at all, the best interests of the appellant's child and the interests of her husband; fourthly, that the judge had failed to undertake a proportionality assessment under Article 8; fifthly, that the judge had failed to consider the public interest assessment as required under Section 117B of the 2002 Act; and finally that the appellant challenged the legality of certain aspects of the Immigration Rules. Permission was granted on all grounds bar the grounds that sought to challenge the legality of aspects of the Immigration Rules.
4. It was conceded by Mr Bramble at the outset, sensibly in my view, that there was a material error of law. In the grounds of appeal the appellant listed documents submitted on appeal and these included, in addition to the refusal documents, copies of her husband's passport, her son's indefinite leave to remain, her spousal visa, a school letter, marriage certificate, birth certificate, tenancy agreement, council tax, water bill, P60, and bank statement. In addition, the appellant had submitted grounds of appeal indicating that her son had indefinite leave to remain in the UK and was settled with his father and attended North East School in Neasden, London. Being his mother it was argued that the appellant's presence was vital to give the child care and attention. It was also argued that as a mother the appellant could not stay away with her child and if she was to take him abroad with her he would be missing school for the remainder of the academic year and the year after, and it was not possible to get him registered for this year and the year to follow. The appellant also argued that her husband worked full-time and as a result her husband could not give their son enough attention if he was to remain in the UK without the appellant.
5. It was also set out that the appellant's husband is a British citizen person present and settled in London and that he also requires the support and presence of the appellant and cannot risk moving abroad to leave behind a successful career and stable life in the UK. The grounds argued the family unity would be jeopardised and splitting the family would be disastrous in all aspects and that the purpose of their marriage would not be fulfilled. The appellant stated that she had received her initial leave to remain in the UK for the purpose of joining her husband and child and that she needed to continue to stay with them. It was further argued that she had not breached the terms of her initial leave to remain visa. She argued that she was not tied to Lebanon any longer and that she was totally dependent on her husband and her life had gone through a "radical change".
6. Finally the appellant cited the current security and political situation in Lebanon and the Middle East and that it was not stable or safe. In light of these points the appellant argued that it would be unreasonable to expect any family separation and this would adversely affect the interests of both the child of the appellant and the sponsor and the family as a whole. It was argued that the removal of any member of the family would result in severe consequences for the family.
7. The judge at [6] indicated that she had considered documents including the notice of appeal, the notice of decision and the appellant's letter of 1 February 2016 with two enclosures. The notice of appeal contained the grounds of appeal as set out in the preceding paragraphs of this decision as well as the list of enclosed documents referred to above. There was no suggestion that the judge did not have these grounds of appeal or documents. The judge failed to engage with these grounds of appeal and materially erred when she said at [9] that the appellant had not sought to dispute "any other matter in the decision other than she has raised the fact that her husband has purchased a property for them to reside as a family in the UK".
8. The judge's failure to take into account the grounds of appeal also resulted in a failure to consider the best interests of the chid in this appeal and the judge did not adequately consider or give adequate reasons why therefore the appellant did not meet the requirements of Appendix FM or paragraph 276ADE.
9. In addition the judge was of the view that the information provided did not address any exceptional circumstances justifying departure from the immigration rules. However the judge was focusing only on the information provided in the appellant's letter of 1 February 2016 which addressed on the English language test issue and the fact that the sponsor had bought a home and not on any of the issues raised in the grounds of appeal with additional documents.
10. I am satisfied that the error is material as conceded by Mr Bramble. It was agreed by both parties before me that given the lack of findings of fact and the nature and extent of the findings which must be made the appeal should be remitted to the First-tier Tribunal.
Decision
11. The decision of the First-tier Tribunal contains a material error of law such that it is set aside. The decision is remitted to the First-tier Tribunal for an oral hearing before any judge other than Judge Mensah.
Anonymity
No application for anonymity was sought or is made. Although there is a child in this appeal there was no identifying information in the decision such that an anonymity directing would be appropriate.

Signed Date: 19 October 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee application was sought or is made.

Signed Date: 19 October 2016

Deputy Upper Tribunal Judge Hutchinson