Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00604/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 20 January 2017
On 23 January 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

RESHMA AFROZE

Respondent

For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer
For the Respondent: Mr H Ndubuisi, of Drummond Miller, Solicitors

DETERMINATION AND REASONS
1. The SSHD appeals against a determination by the First-tier Tribunal, promulgated on 14 September 2016, allowing an appeal by a citizen of Bangladesh on Article 8 grounds "to a limited extent".
2. The rest of this determination refers to parties as they were in the FtT.
3. The position of the appellant's husband (also a citizen of Bangladesh) at the time of the hearing in the FtT was that he had no leave to remain in the UK. He was subject to a decision relating to deception (or alleged deception) in an ETS test, which carried a right of appeal exercisable only from outside the UK. He had not left the UK. He had made an application for judicial review to the Upper Tribunal. On the basis of the case law of the Court of Appeal, the UT refused permission. The UT further held that the application was totally without merit (and so could not be renewed orally). The appellant's husband applied to the UT for permission to appeal to the Court of Appeal, which was refused. He applied to the Court of Appeal for permission to appeal, and for an extension of time within which to make such an application, which remained outstanding. (Representatives agreed that the situation remained the same on 20 January 2017.)
4. The FtT held as follows:
[28] ? I am satisfied that the appeal should be allowed albeit on a limited basis.
[29] ? the proper course would be for the [appellant's husband] to be granted leave to remain pending determination of his current proceedings before the Court of Appeal. It would be for the respondent to determine what period of leave was appropriate ...
[30] I reached this view because it did seem to me that currently the appellant's husband has a right to remain in the UK. He has pending proceedings before the Court of Appeal which may be determined relatively soon. In my view, it would not be proportionate to require the appellant to leave the UK pending determination of that claim.
[31] She continues to suffer from complications arising from a recent operation. She is the mother of a very young child ? They are a close couple and I was entirely persuaded that the appellant's husband offers her clear care and support? and ? is in the main responsible for running the household and caring for his wife and infant child.
[32] It simply did not appear to me to be fair or right to require her to return to Bangladesh at this time, not least because what was sought ? was a limited grant of leave to remain pending the outcome of other proceedings.
[33] In reaching this view I also had regard to the best interests of the infant child. Those interests are for the child to be with both parents ?
[34] The public interest does not require removal at this time. The husband of the appellant has had his leave extended by virtue of his own appeal. There is no clear interest in removal at this time given this.
[35] Accordingly I allow the appeal on human rights grounds?
[36] It will be for the respondent to determine the period of leave ? No doubt that will be linked to the currency of the proceedings before the Court of Appeal.
5. The proceedings taken by the appellant's husband are not of a nature which gives him any right to remain in the UK. Mr Ndubuisi, although he made no concession, was unable to summons up any argument to the contrary.
6. The judge was handicapped by the absence of representation of the respondent, and there may have been in the background a misconception arising from those cases where leave is extended during a statutory appeal. However, the grounds and submissions for the respondent show that the judge unfortunately fell into clear error, in particular at paragraphs 30 and 34. The misconception that the appellant's husband had a right to remain in the UK was the crux of his decision.
7. Mr Matthews drew attention to the respondent's Enforcement Instructions and Guidance, chapter 60, to the effect that where it has been decided that permission to apply for judicial review is refused and that the application is totally without merit or that renewal is not to be a bar to removal, then removal may proceed. Removal is barred only where an applicant obtains an injunction or interdict. He also cited the case law which led the respondent to frame that policy.
8. The respondent's policy was not referred to in the FtT, although both parties were under a duty to draw attention to it. In any event, the error of law is plain, without reference to the policy and its underpinnings.
9. The grounds demonstrate another error in the decision, which is the absence of reference to section 117B of the 2002 Act, either explicitly or implicitly. As Mr Matthews submitted, the section sets out "public interest considerations applicable in all cases". They cannot be overlooked because a tribunal thinks that only short term leave is justified.
10. Mr Ndubuisi sought to justify the decision by reference to the fact that the respondent has not taken any active steps to remove the appellant's husband, but that is irrelevant, and does not imply approval of his continued presence in the UK.
11. Either of the two errors in the FtT's decision would require it to be set aside.
12. This is, as Mr Matthews submitted, a case which on proper inspection has only one answer. The appellant, taking away the misconception that her husband has even a short term right to remain, has established nothing by which it might be found disproportionate to expect her, her husband and their young child to remove from the UK to Bangladesh.
13. The determination of the First-tier Tribunal is set aside.
14. The decision substituted is that the appeal, as originally brought to the FtT, is dismissed.
15. No anonymity direction has been requested or made.

20 January 2017
Upper Tribunal Judge Macleman