Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/20796/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th August and 2nd November 2018
On 11th January 2019

Before

UPPER TRIBUNAL JUDGE JACKSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

md amin
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr S Walker, Senior Home Office Presenting Officer
For the Respondent: Ms B Jones of Counsel, instructed by City Legal Partnership

DECISION AND REASONS
1. The Secretary of State appeals against the decision of First-tier Tribunal Judge Harrington promulgated on 7 February 2018, in which Md Amin's appeal against the decision to refuse his human rights application dated 16 August 2016 was allowed. For ease I continue to refer to the parties as they were before the First-tier Tribunal, with Md Amin as the Appellant and the Secretary of State as the Respondent.
2. Further to the hearing on 6 August 2018, I found an error of law in the decision of First-tier Tribunal Judge Harrington and set it aside for remaking pursuant to a further hearing. The background to this appeal and reasons for the error of law found are contained in the decision promulgated on 10 September 2018 annexed to this decision, the contents of which will not be repeated here.
The Respondent's decision
3. The Respondent refused the Appellant's application on 16 August 2016 following an assessment of his application for leave to remain on the basis of his relationship with his British Citizen partner, his son having not at that time born. The Appellant did not meet the requirements of paragraph E-LTRP.2.2 of Appendix FM of the Immigration Rules because he had no leave to remain at the time of his application, his leave to remain having been curtailed on 4 July 2014 to expire on 2 September 2014 and he had thus become an overstayer. In the alternative the requirements of paragraph EX.1 of the same were considered, the relationship Appellants being accepted but not that there were any insurmountable obstacles to family life continuing outside of the United Kingdom. The Appellant spent his formative years in Bangladesh, had only at that time resided in the United Kingdom for two years, speaks Bengali and has family residing in Bangladesh such that he would be able to reintegrate there. Separately, it was not accepted that the Appellants met any of the requirements for a grant of leave to remain on the basis of private life under paragraph 276 ADE of the Immigration Rules and there were no exceptional circumstances for a grant of leave to remain outside of the rules.
The evidence
4. in his written statement, the Appellant states that he never received a letter curtailing his leave to remain as far as he knew who leave to remain with you with the most recent application in May 2016. The Appellant undertook an Islamic marriage with his partner on 29th every 2016 and a civil marriage on 4 March 2016 and their son was born in August 2017.
5. The Appellant attended the oral hearing, confirmed his details and adopted his written statement dated 16 January 2018. He stated that he did not recognise the email address to which the curtailment notice was sent by the Respondent and believes that it may have been created for him by the student advisory service when he initially applied for his visa for entry clearance, but he was not aware of it at the time. He believes that they created the address to processes his file and he has used a different gmail address for all of his purposes, although he could not recall if he had provided his usual email address to the student advisory service.
6. The Appellant's son is now 14 months old and had initially made good progress after problems at birth with a period in intensive/special care but there was concern that there may be a developmental problem. There is a medical review every 3 to 4 months and massage therapy has been recommended for delayed mobility development.
7. In the United Kingdom, the Appellant's son has grandparents, an uncle and an auntie on his mother's side and in Bangladesh three uncles and two auntie's. The Appellant's son has never met his family in Bangladesh, although the Appellant's wife has visited as a child and again later, she has not been not since meeting the Appellant.
8. At home, the Appellant and his wife speak English as she struggles with Bengali. The Appellant does not speak Bengali to his son as he understands English better. In cross-examination the Appellant confirmed that he had never seen the email address on record with the Respondent before and had never used it.
9. The Appellant's wife, [JB], attended the oral hearing, confirmed her details and adopted her written statement signed and dated 16 January 2018. She confirmed that she spoke English with the Appellant and that all her family were in the United Kingdom. The Appellant's wife confirmed her son's developmental issues, that he was a little bit behind on walking and had only recently started crawling and appointment was awaited the referral for massage therapy and recommendations had been made for ongoing checks and care. The next appointment is scheduled for February 2019.
Closing submissions
10. The following submissions were made on behalf of the Respondent. In relation to the curtailment of the Appellant's previous leave to remain, the evidence showed that the Respondent used the email address provided on the Appellant's Visa application, although the Appellant has confirmed that this was not his email address, it was created by a third party and he never used it or received any email or the curtailment letter. It was accepted that the Appellant has always maintained that he never received the curtailment letter. However, the Respondent's position was that there was valid service of the curtailment letter in accordance with the relevant regulations, however it was also accepted that the Appellant was completely unaware of this.
11. When pressed, Mr Walker, somewhat reluctantly, submitted that it would be reasonable for the Appellant's son to leave the United Kingdom.
12. On behalf of the Appellant, it was submitted that there was sufficient evidence to show that the Appellant had never used the email address which the Respondent had on record and it was suggested that the email sent with the curtailment letter must have therefore bounced back and not been validly served. However, there was no evidence of that, only the Appellant's evidence which has been candid and consistent that he never received notice of curtailment and submitted therefore that it was not an effective curtailment.
13. On the issue of reasonableness, the Appellant did not deliberately overstay his leave to remain in the United Kingdom and had made a further application for leave to remain before his original period of leave to remain had expired. In any event that is no longer relevant as he relies primarily on section 117B(6) of the Nationality, Immigration and Act 2002. It was further submitted that if the Appellant made the same application now, he would be able to satisfy the requirements of paragraph EX.1 of Appendix FM to the Immigration Rules, which is a matter relevant to the proportionality exercise for the purposes of Article 8 of the European Convention on Human Rights.
14. In relation to whether it is reasonable for the Appellant's son to leave the United Kingdom, reliance was placed on the Supreme Court's decision in KO (Nigeria) the Secretary of State for the Home Department [2018] UKSC 53 and in particular the reference back to the Court of Appeal's decision in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 854 where the situation included one parent settled in the United Kingdom and one not. In the present appeal, the Appellant's wife and all of her family are in the United Kingdom and are British citizens, as is the Appellant's son who requires continuing medical monitoring and services and is entitled to the same from the NHS. Balanced against that, it was accepted that the child is very young and the most likely scenario is that the Appellant's son would remain with his mother in the United Kingdom while the Appellant returned to make an application for entry clearance and reliance was therefore place also on Chikwamba v Secretary of State for the Home Department [2008] UKHL 40.
15. In conclusion, it was submitted that the Appellant met all of the requirements of paragraph EX.1(a) of Appendix FM of the Immigration Rules and the proportionality balancing exercise should therefore be resolved in the Appellant's favour, that removal would be a disproportionate interference with his right to respect for private and family life under Article 8, as it would be of the same rights of his wife and child.
Findings and reasons
16. The first issue in this appeal is whether the Appellant had leave to remain at the time of his most recent application for further leave in May 2016, or whether this had been curtailed to expire on 2 September 2014. Although the Appellant maintains, and the Respondent accepts, that he never received the letter curtailing his previous leave to remain, there was no real dispute between the parties before me that that letter was validly served by the Respondent to an email address provided by or on behalf of the Appellant in his application for entry clearance as a student in 2013. It was suggested on behalf of the Appellant that as he had never used the email address, any messages sent to it would have bounced back, however this was pure speculation and it was accepted that there was no evidence to support such a suggestion. The letter of curtailment was validly served, albeit I accept that the Appellant was unaware of it. At the time of his most recent application, the Appellant did not therefore have any leave to remain in the United Kingdom, he was an overstayer and could not meet the main provisions of Appendix FM of the Immigration Rules for the reasons given in the Respondent's initial refusal letter in relation to the relationship with his partner. There is no specific reliance on or challenge to those conclusions in relation to the Appellant's relationship with his partner.
17. The Appellant's circumstances have however moved on since the Respondent's refusal, in particular that he and his partner had a son in August 2017 and it is that relationship which is primarily relied upon in this appeal, specifically section 117B(6) of the Nationality, Immigration and Asylum Act 2002 - that it would be unreasonable to expect the Appellant's son to leave the United Kingdom. There is no dispute that the Appellant is in a genuine and subsisting relationship with his son, a British Citizen who is therefore a qualifying child for these purposes.
18. The conclusions reached by the First-tier Tribunal in this appeal in relation to the best interests of the Appellant's son have not been challenged by the Respondent and I adopt the findings and reasoning in paragraphs 35 and 36 of Judge Harrington's decision on this point to the effect that the best interests of the Appellant's son are to remain with his mother and father in the United Kingdom where he can grow up with access to free educational facilities and healthcare in his country of nationality, including continuing access to specialist medical care which he is currently in receipt of.
19. For the purposes of assessing whether it is reasonable for the Appellant's son to leave the United Kingdom, as confirmed by the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, regard must only be had to the circumstances of the child and not the conduct of the parent, save that the assessment must be conducted in the real world in which the children find themselves, which will inevitably include consideration of whether a parent or parents are expected to leave because they have no right to remain in the United Kingdom.
20. In the present case, the Appellant has no right to remain in the United Kingdom and is therefore expected to return to Bangladesh, however his partner is a British Citizen and as such has a right to remain here. The question is in this case whether it is reasonable for the Appellant's son to follow the parent who has no right to remain here to Bangladesh.
21. In the Appellant's favour, his son is a British Citizen whose best interests are to remain in the United Kingdom to continue to receive specialist medical treatment and in the future to access education and the other benefits of growing up in the country of his nationality, together with extended family on his mother's side. At present, the Appellant's son is spoken to primarily in English rather than in Bengali, but given his age, of only 14 months, this is a relatively neutral factor given his language skills will only just be starting to develop at all and there is nothing to suggest he would not be able to learn another language with the assistance of the Appellant.
22. The factors which may suggest it would be reasonable for the Appellant's son to leave the United Kingdom are that he would be returning with a parent (or parents as his mother would also be able to return with them) who is able to reintegrate into Bangladesh and other than a potential short-term period of disruption following the move, there was nothing to suggest that he would not be provided for in Bangladesh, nor that there is any specialist medical care that he requires which would not be available there. The Appellant's son is at an age where his only focus is on his family and he has not yet established any wider links or private life in the United Kingdom.
23. The assessment of whether it is reasonable for the Appellant's son to leave the United Kingdom is finely balanced given his young age, however taking into account all of the circumstances, I find that it is not reasonable to expect him to leave the United Kingdom to relocate to Bangladesh with his father, primarily because it is in his best interests to remain, he is a British Citizen (as is his mother), and due to the ongoing specialist medical care he is receiving in the United Kingdom. The terms of section 117B(6) of the Nationality, Immigration and Asylum Act 2002 are met on the facts of this appeal, such that the Appellant's removal would be a disproportionate interference with his right to respect for private and family life under Article 8 of the European Convention on Human Rights and I therefore allow the appeal.
Notice of Decision
For the reasons set out in my first decision, the making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it was necessary to set aside the decision.
The decision is remade as follows:
The appeal is allowed on human rights grounds
No anonymity direction is made.
Signed Date 28th December 2018
Upper Tribunal Judge Jackson

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/20796/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th August 2018

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Before

UPPER TRIBUNAL JUDGE JACKSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

md al amin
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr L Tarlow, Home Office Presenting Officer
For the Respondent: Ms K Wass of Counsel, instructed by City Legal Partnership

DECISION AND REASONS
1. The Secretary of State appeals against the decision of First-tier Tribunal Judge Harrington promulgated on 7 February 2018, in which Mr Md Al Amin's appeal against the decision to refuse his human rights application dated 16 August 2016 was allowed. For ease I continue to refer to the parties as they were before the First-tier Tribunal, with Md Al Amin as the Appellant and the Secretary of State as the Respondent.
2. The Appellant is a national of Bangladesh, born on 31 December 1993, who entered the United Kingdom on 25 January 2014 with leave to remain as a student initially granted to 31 May 2016 but which the Respondent stated was curtailed on 4 July 2014 to end on 2 September 2014. That curtailment was in dispute in the course of the appeal proceedings as being relevant to the refusal of the Appellant's application for leave to remain on 16 August 2016.
3. The Respondent refused the application the basis that the Appellant could not meet the eligibility requirements for leave to remain as a partner under Appendix FM of the Immigration Rules because he had overstayed his initial period of leave to remain since curtailment on 2 September 2014 and could not in the alternative meet the requirements set out in paragraph EX.1 as there were no insurmountable obstacles to family life continuing outside of the United Kingdom. The Appellant also failed to meet the requirements of paragraph 276ADE of the Immigration Rules for a grant of leave to remain on the basis of private life.
4. Judge Harrington allowed the appeal in a decision promulgated on 7 February 2018 on the basis that the Appellant's leave to remain had not been curtailed (first because the Appellant did not receive the curtailment letter and secondly, in any event the letter contained numerous errors such that it did not constitute effective curtailment) such that he had valid leave at the date of his application and met the requirements of R-LTRP.1.1(c) of Appendix FM to the Immigration Rules and therefore the refusal was a disproportionate interference with his right to respect for family life. By the time of the appeal hearing, the Appellant had also had a child with his partner who was a British Citizen, and in the alternative it was found that it would not be reasonable to expect that child to leave the United Kingdom such that paragraph EX.1(a) of Appendix FM applied.
The appeal
5. The Respondent appeals on four grounds as follows. First, at the hearing before the First-tier Tribunal, the Home Officer Presenting Officer had requested a short adjournment to obtain confirmation of service of the curtailment letter to the Appellant's email address which was refused. This amounted to procedural unfairness as the Respondent was prevented from adducing material evidence which could have been obtained on the day in a short period of time. Secondly, following on from the first ground, the failure to grant an adjournment led to the making of a mistake of fact by the First-tier Tribunal that the email with the curtailment letter had not been sent to the Appellant when it had. Thirdly, that the First-tier Tribunal erred in its assessment of the curtailment letter itself which included a typographical error in the dates but was otherwise clear and effective to curtail leave to remain. Fourthly, the First-tier Tribunal failed to take into account the fact that the Appellant did not undertake his studies as originally planned and failed to update his circumstances to the Respondent.
6. Permission to appeal was granted by Judge Alis on all grounds on 3 June 2018 and directions were given for the original Home Office Presenting Officer to provide evidence in written form of the hearing before the First-tier Tribunal and for steps to be taken to clarify it with the Appellant's representatives as to what happened.
7. When the appeal came before me on 6 August 2018, the directions contained in the grant of permission had not been complied with and there was no further evidence from the Respondent nor any prior agreement with the Appellant or his representatives as to what happened at that hearing. Instead the Respondent continued to rely on the initial note of hearing from the original Home Office Presenting Officer which had been submitted with the application for permission to appeal. That note, so far as relevant, only states that, "Appellant claimed that he was not served with an email containing leave, I asked for time to show that he was served though this was denied by the IJ."
8. At the hearing, the Counsel for the Appellant confirmed that what was said in the Respondent's hearing note from the First-tier Tribunal was correct. An initial adjournment of 15 minutes was given to the Respondent to take instructions, but the evidence could not be obtained within that time. The Home Office Presenting Officer requested an adjournment of the appeal to allow another day which was refused. It was accepted that the second request and its refusal was not referred to at all in the decision of the First-tier Tribunal.
9. As to the grounds of appeal, Mr Tarlow relied on the grounds as drafted and highlighted the inconsistency in the decision as to the second adjournment which was sought and refused by the First-tier Tribunal.
10. Ms Wass submitted that the issue of the curtailment letter was not a new one, it had been referred to in the Appellant's grounds of appeal and in his witness statement which although only a few days before the appeal hearing was sufficient time for the Respondent to consider and obtain any evidence on which he wished to rely. In any event, it was found in the alternative that the curtailment letter was not effective because it was so full of errors that the Appellant could not be expected to overlook. These errors included different dates given for the curtailment. There was no authority as to whether a curtailment letter was ineffective such circumstances.
11. As to the fourth ground of appeal, the First-tier Tribunal expressly considered the Appellant's lack of contact with the Respondent about his studies at paragraph 38(b) of the decision, such that it cannot be said that this was not taken into account. It was submitted that the second, third and fourth grounds of appeal amounted only to disagreement with the decision of the First-tier Tribunal did not amount to an error of law.
Findings and reasons
12. In relation to the first ground of appeal, although the Respondent did not comply with the directions given in the grant of permission to appeal for further written evidence from the original Home Office Presenting Officer, it was clear from the candid submissions on behalf of the Appellant that the decision of the First-tier Tribunal did not fully reflect the fact that a further application for an adjournment was made on behalf of the Respondent to obtain evidence of service of the curtailment letter which was refused. The reasons for refusal are therefore also not apparent on the face of the decision and it is therefore difficult to assess whether the First-tier Tribunal properly considered the fairness of a refusal to adjourn on the parties (in particular on the Respondent given the issue was central to determination of the appeal) in accordance with Nwaigwe (adjournment: fairness) [2014] UKUT 0018 (IAC).
13. In these circumstances, I find an error of law in refusing to grant the adjournment to allow the Respondent to produce further evidence of service of the curtailment letter which was of central importance to the outcome of the appeal given the Respondent's agreement that if not curtailed, the Appellant met the requirements of the Immigration Rules. If curtailed, then he did not, save for consideration under paragraph EX.1 of Appendix FM and any assessment under section 117B(6) of the Nationality, Immigration and Asylum Act 2002, to which the Appellant's immigration history would potentially be relevant. In the absence of any reference at all to the further adjournment request, it can not be inferred that the First-tier Tribunal properly considered whether the hearing could fairly proceed in the absence of this evidence and in all of the circumstances. On the evidence available to me, I find that the Respondent was prejudiced by not being given the opportunity to adduce evidence which would have been relatively quickly available. As such I find there was procedural unfairness.
14. I do not accept the Appellant's submission that any failure to adjourn was immaterial because the First-tier Tribunal Judge considered in the alternative that the curtailment letter itself was ineffective due to errors contained in it. I find a further error of law on the Respondent's third ground of appeal as to the effectiveness of the curtailment letter itself. On its face, the curtailment letter contains two typographical errors in dates, stating 2016 when self-evidently due to the date of the letter and consistent end dates for leave to remain given elsewhere in the letter, both dates should be 2014. In my view, the curtailment letter was sufficiently clear as to be effective. In any event, there is no authority for the proposition that a First-tier Tribunal can find that curtailment of leave to remain is ineffective in such circumstances and Ms Wass was unable to refer to any such authority. Further, the alternative could only be found if in fact the curtailment letter had been served, in which case, the Appellant would have had an opportunity to challenge it at the time, for example by way of Judicial Review, which he failed to do. It was an error of law to find that the curtailment of leave would in any event be ineffective both on the facts in this case and as a matter of law.
15. As to the second ground of appeal, that follows on from the findings above in relation to the first ground of appeal and becomes arguable. It is not however possible to find at the error of law stage that there was a mistake of fact capable of amounting to an error of law as to service of the curtailment decision, only that the First-tier Tribunal, having refused the adjournment request, had not taken into account all of the relevant evidence which would have been available had the adjournment been granted. For the reasons already given, the First-tier Tribunal decision contains errors of law such that it should be set aside and further findings will need to be made as to whether the curtailment letter was served on the basis of all of the evidence available, (including that now available from the Respondent) and in accordance with the relevant provisions as to notice of such decisions, when the decision is remade.
16. As to the fourth ground of appeal, although regard is had to the Appellant's evidence about why he had not notified the Respondent that he had ceased studying, I do not find that this gives adequate reasons for the finding made or attaches adequate weight to this factor. In particular, the statement that the Appellant can not be blamed for not notifying the Sponsor that his college had been suspended and was entitled to wait for a 60 day letter fails to resolve the conflict in the evidence - the Respondent's position on curtailment was that the Appellant had ceased studying, as opposed to loss of the Sponsorship licence. What is reasonable for a person to do is likely to vary in these different situations and it is not clear why the Appellant's evidence was preferred on this point.
17. The alternative conclusions further to paragraph EX.1 of Appendix FM have not been directly challenged by the Respondent in the course of this further appeal, but in any event can not stand because the assessment of the Appellant's immigration history and therefore the overall assessment is infected by the findings as to curtailment in which I have found an error of law. Although it may be that the same outcome is ultimately reached, it is impossible to say with sufficient certainty that it would be such that the errors identified would become immaterial and it was not suggested by the Appellant that the decision should in any event be upheld on this final alternative consideration under paragraph EX.1 of Appendix FM.
18. For these reasons, the First-tier Tribunal's decision contains material errors of law such that it is necessary to set it aside.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it is necessary to set aside the decision.
I set aside the decision of the First-tier Tribunal.
No anonymity direction is made.
Directions
The Appellant and the Respondent are at liberty to file and serve any further evidence that they wish to rely on, no later than 14 days before the relisted hearing.
Signed Date 6 September 2018
Upper Tribunal Judge Jackson