Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/15456/2018
HU/15458/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 June 2019
On 9 July 2019

Before

UPPER TRIBUNAL JUDGE CONWAY

Between

MIR JILAL UDDIN
MIR KAMAL UDDIN
(NO ANONYMITY ORDERS MADE)
Appellants
and

ENTRY CLEARANCE OFFICER - DHAKA
Respondent

Representation:
For the Appellant: Mr Iqbal, legal representative
For the Respondent: Ms Everett, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellants are citizens of Bangladesh born in June 1999 and April 2000. They appealed against a decision of the respondent made on 12 August 2017 to refuse them entry clearance to the UK as the children of their mother Mrs Bibi. The applications were made on 21 May 2017. They were refused under paragraph 297 of the Immigration Rules on three grounds: first, the relationship had not been established; second maintenance; third, accommodation.

2. They appealed.

First-tier Hearing

3. Following a hearing at Nottingham on 5 March 2019 Judge of the First-tier Tribunal Place dismissed the appeals.

4. Noting a DNA report she found that the relationship had been proved.

5. Turning to maintenance the judge, who heard evidence that the sponsor was working in a restaurant, found (at [13]) that "at the date of the respondent's decision the appellants did not satisfy the maintenance provisions of the Immigration Rules and that the respondent's decision was correct under the Rules."

6. However, she went on (at [14]) to "also find that at the date of hearing ?. Mrs Bibi's income was sufficient to meet the maintenance provisions of the Rules, assuming the appellants were still children at the date of hearing, which, of course, they were not."

7. Moving on to accommodation the judge noted the evidence that the sponsor had been living at an address in Bedford and that a report had been provided showing that the accommodation was adequate. However, the judge added that she did not have that report. She did, though, have a report in respect of a different address in Bedford, at which the sponsor was currently living. She stated that the evidence "satisfies the requirement of there being adequate accommodation owned or occupied by the appellants' parent." [15]

8. She concluded in respect of the Rules (at [22]) "At the date of the respondent's decision the appellants did not meet the requirements of the Immigration Rules. Time has passed and Mrs Bibi's income has within the last month gone up to just above the level required. Adequate accommodation is also now available. This does not alter the fact that the respondent's decision was correct when it was made."

9. In the remaining paragraphs, in considering proportionality, the judge found under s117B that the appellants would not be financially independent and cannot speak English. Also, as they are no longer children their best interests were not a relevant consideration. Further, "As they are no longer under 18, they do not satisfy the age requirements of paragraph 297, even though the maintenance and accommodation provisions are now satisfied." [23]

10. In final comments the judge found that the respondent's decision did not mean that family life between the appellants and their mother has to be permanently interrupted. She lived with them alone in Bangladesh for 10 years and she could do so again. Financial support from family members here would be available to them there.

11. The appellants sought permission to appeal which was granted on 15 May 2019.

Error of law hearing

12. The thrust of Mr Iqbal's submissions was that the judge failed to correctly apply section 85(5) of the Nationality, Immigration and Asylum Act 2002. Reference was made to DR (ECO: post decision evidence) Morocco [2005] UKIAT 38. The evidence presented at the hearing which satisfied the judge on maintenance and accommodation related to "circumstances appertaining at the time of the decision to refuse."

13. It was pointed out that that version of section 85 had been superseded. Section 85 (4) states that the tribunal "may consider?any matter which it thinks relevant to the substance of the decision, including?a matter arising after the date of the decision" unless it is a "new matter" which requires the respondent's consent. There is no issue of a "new matter" in these appeals.

14. Ms Everett's position was that as this is a human rights appeal the relevant date is date of hearing. While that appeared to benefit the appellants in respect of the post decision evidence which satisfies the maintenance and accommodation provisions of the Rules, at the date of hearing they were over 18 with the result that it was more difficult for them to succeed.

Consideration

15. This is a human rights appeal. As such the Tribunal may consider any matter relevant to the substance of the decision including a matter arising after the date of decision and evidence bearing on such a matter will be admissible. This is so for both in country and out of country appeals. The public interest considerations are also assessed as at the date of hearing rather than date of decision. The duel questions of whether Article 8 is engaged, and if so, whether the decision under appeal is proportionate must therefore be evaluated as at the date of hearing.

16. The judge properly made findings as to maintenance and accommodation as at date of decision and date of hearing. However, she erred in apparently taking date of decision as the crucial date in her assessment of proportionality. In doing so and in disregarding the (unchallenged) findings that the maintenance and accommodation requirements were satisfied at date of hearing, she made inadequate findings on the issue of proportionality. Such amounted to a material error of law such that the decision must be set aside to be remade. It was not suggested that any further evidence or submissions were required.

17. As Ms Everett properly noted the appellants are now both over 18 years of age. The first has just turned 20, the second 19. There is no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8 nor is there any requirement of exceptionality. It all depends on the facts. A child enjoying a family life with his parent does not suddenly cease to have a family life at midnight as he turned 18 years of age. On the facts of this case the evidence is that they are, essentially, alone in Bangladesh. Their father died in 2007. Their mother raised them alone with financial help from brothers in the UK. She came lawfully to the UK in late 2018 intending that her children should join her soon after, but there was delay due to errors by lawyers in Bangladesh. They remain dependent on her for financial and emotional support. I find that family life has continued with their mother.

18. I find that the refusal to grant entry clearance is of sufficient gravity to interfere with the appellants' right to respect for family life. The refusal is in accordance with the law and for a legitimate reason.

19. The issue is proportionality. Immigration control is in the public interest, and the s117B factors (not able to speak English, not financially independent) do not assist the appellants. However, there is no challenge that the appellants through their mother now satisfy all the requirements of paragraph 297. She has had sole responsibility for their upbringing. They are unmarried and not living independent lives. The fact that they show they meet the requirements of the Rules which were applicable when their applications were made and remain applicable until the conclusion of proceedings in their appeals under that application, weighs heavily in their favour. In that regard paragraph 27 of the Rules has relevance. It states: "an application for entry clearance is to be decided in the light of the circumstances existing at the time of the decision, except that an applicant will not be refused entry clearance where entry is sought [under paragraph 297] solely on account of his attaining the age of 18 years between receipt of his application and the date of the decision on it." Further, in light of the nature of their relationship with their mother and their individual circumstances in their home country I am satisfied that in this case the balance of proportionality lies in favour of allowing the appeals.

20. Accordingly, the Article 8 appeals are allowed.

Notice of Decision

The decision of the First-tier Tribunal showed material error of law. It is set aside and remade as follows:

The appeals are allowed.

No anonymity orders made.

Signed Date

Upper Tribunal Judge Conway 4 July 2019