Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01288/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 October 2016
On 5 October 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

MR MD abdul wadud
(anonymity directioN NOT MADE)

Respondent

Representation:
For the Appellant: Ms Z Ahmad, Senior Home Office Presenting Officer
For the Respondent: Mr M Aslam, counsel instructed by Linkworths Solicitors

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Majid, promulgated on 24 March 2016, in which he allowed the respondent's appeal against a decision to refuse to vary his leave to remain in the United Kingdom.
2. Permission to appeal was granted by First-tier Tribunal Judge Brunnen on 17 August 2016
Anonymity
3. No direction has been made previously, and there is no reason for one now
Background
4. The respondent is a national of Bangladesh, born on 1 March 1979. He last entered the United Kingdom during the year 2011, with leave to enter as a Tier 4 migrant, which was valid until 31 December 2013. He was granted an extension of stay under Tier 4 until 21 August 2015, which was curtailed so as to expire on 26 September 2014. On 24 September 2014, he sought leave to remain on the basis of his family and private life in the United Kingdom. In essence, he wished to remain in the United Kingdom in order to continue his relationship with SA.
5. The Secretary of State refused the application on 16 December 2014, concluding that the respondent failed to satisfy the suitability requirements of Appendix FM owing to his deception in obtaining leave to enter the United Kingdom in another identity in 2005. It was also said that he did not meet the eligibility requirements because the relationship with SA was recent, they were not married to one another and did not cohabit. Furthermore, it was not accepted that his relationship with SA, was genuine and subsisting. Owing to the respondent's failure to meet the suitability and eligibility requirements, the Secretary of State considered that the respondent could not benefit from the criteria set out in EX.1 of Appendix FM. The Secretary of State did not accept that the respondent met the requirements of paragraph 276ADE(1), nor that there were any exceptional circumstances.
6. The respondent appealed. In a signed witness statement which accompanied the grounds of appeal, the respondent admitted entering the United Kingdom in using his "other name" of Rayhan Hussain and that he had previously claimed asylum in that identity. The respondent further explained in the said statement that following his removal to Bangladesh, he decided to return to the United Kingdom because his life was in danger owing to political reasons. He argued that his relationship with SA was akin to marriage, but that they were unable to cohabit because she resided in a women's hostel.
The hearing before the First-tier Tribunal
7. The Secretary of State was not represented. The respondent and SA gave evidence. The judge found that the respondent was not to blame for the use of a false identity because this was the fault of an agent making an asylum application on his behalf in a false name. His appeal was allowed under the Immigration Rules because the respondent was required to give essential help to SA who is a victim of domestic violence.

The grounds of appeal
8. In essence, the grounds argued that the judge failed to give adequate reasons for findings on material matters. It was said to be unclear on what basis the appeal was allowed; the judge failed to address the basis of the refusal of the application under Appendix FM and 276ADE(1); if the judge allowed the appeal outside the Rules then there had been little in the way of a proportionality assessment and no considerations of section 117A-D of the Nationality, Immigration and Asylum Act 2002. There was a failure to give adequate reasons for his findings, which bore little relation to the issues before him. The decision was described as extremely difficult to read or understand and the judge's conclusion was irrational. Remittal to the First-tier Tribunal was sought for full consideration of the issues.
9. Permission to appeal was granted as it was considered that the Secretary of State had identified arguable errors of law.
10. No response under Rule 24 was received from those representing the respondent.
The hearing
11. Ms Ahmad relied on an extract from the authority of South Bucks District Council v Porter (2) [2004] UKJL 33, submitting that the judge failed to address the main issues in dispute. She argued that the decision under appeal raised suitability, eligibility and insurmountable obstacles with reference to EX.1 of Appendix FM. It was unclear on what basis the appeal had been allowed. While the judge found that the respondent was not involved in deception and that he had a genuine relationship with his partner, there was no consideration of eligibility under Gen 1.2 of Appendix FM. Thus it was difficult to see how the judge found that the Rules were met. Ms Ahmad asked me to note that the respondent's application confirmed his relationship began in January 2014 and that at the date of the application in September 2014, they were not married nor had they cohabited. If the judge allowed the appeal outside the Rules, there was no mention nor application of Secretary of State for the Home Department v SS (Congo) [2015] EWCA Civ 387 and no reference to section 117B of the 2002 Act.
12. Mr Aslam accepted that the judge's decision did not set out the correct law and while he argued that it was comprehensive, he conceded that there was no specific reference to the Rules or section 117B. He argued that the judge's decision could only be set aside if the errors were material. Mr Aslam submitted that the judge's principle focus was on the consideration of Article 8 outside the Rules. He conceded that the respondent did not meet the eligibility requirements, however the judge accepted that there was a subsisting, genuine relationship. In terms of the facts, he informed me that there were important features to this case including that the respondent had undergone an Islamic marriage with SA; that SA was a victim of domestic violence and forced into a marriage by her family; SA was still married to that partner but was seeking a divorce and continued to live in a women's hostel. Mr Aslam submitted that these unique features amounted to compelling circumstances and it was therefore open to the judge to make positive findings as to Article 8 outside the Rules.
13. Mr Aslam argued that even had the judge identified section 117B and set out both sides of the argument, the result would have been the same. The respondent's immigration history had been impugned by reference by an allegation of deception, however the judge considered that he had not used deception, albeit he was mistaken in finding that this was in relation to an asylum claim. Mr Aslam told me that the respondent's explanation in relation to the use of another identity emerged in oral evidence. At this stage I drew the respondent's admissions in his witness statement of 18 December 2014 to Mr Aslam's attention. He concluded by inviting me to uphold the judge's decision.
14. In reply, Ms Ahmed reiterated that there was no support in the judge's decision for Mr Aslam's submission that the appeal was allowed under Article 8 outside the Rules. She relied on SS (Congo), emphasising the importance of the assessment of the Rules as part of a consideration of Article 8 outside the Rules. Furthermore, section 117B of the 2002 Act was of relevance given the respondent's precarious status in the United Kingdom. Without these errors, a different conclusion could have been reached.
Decision on error of law
15. After hearing submissions from both representatives, I announced that the judge's decision displayed material errors of law. My reasons are as follows.
16. The first issue to be addressed is the basis on which the judge allowed the appeal. At [18] the judge states as follows; "This Appellant can benefit from the Rules?" and at [19] "in view of my deliberations in the preceding paragraphs?I am persuaded that the Appellant come (sic) within the relevant immigration law, as amended." I consider these paragraphs together with the complete absence of any mention of SS Congo, compelling circumstances, Razgar [2004] UKHL 27, proportionality or section 117B of the 2002 Act leads me to the conclusion that the appeal was allowed under the Rules alone.
17. The judge failed to adequately address the first issue in contention under Appendix FM, that of suitability. In the decision under challenge, the Secretary of State refers to the respondent's successful application for entry clearance in 2005 in a different identity. Yet, the judge at [9(b)] refers to the wrong name being given for the respondent by an agent in relation to an asylum claim. As Mr Aslam conceded, this was a clear error of fact. While the judge found that the respondent was not involved in deception, he makes no clear finding regarding whether his presence in the United Kingdom is or is not conducive to the public good in relation to the specific conduct identified by the respondent in relation to S-LTR 1.6 of Appendix FM.
18. A further issue went unaddressed by the judge, that of eligibility. At the time of the respondent's application for leave to remain in September 2014, the relationship was of 8 months' duration, the couple were not married to one another and did not cohabit. By allowing the appeal under the Rules, the judge was required to explain how he considered that the eligibility requirement was met under Gen 1.2 of Appendix FM to the Rules. He failed to do so.
19. If the judge was of the view that the suitability and eligibility requirements were met, this would mean that he was required to consider whether the respondent could satisfy EX.1 b. While the judge did indicate at [16] that the relationship between the respondent and SA was genuine, he did not consider whether there were any insurmountable obstacles to family life with that partner continuing outside the UK.
20. The judge's conclusions in relation to Article 8 within the Rules were deeply flawed and his consideration of the appeal outside the Rules was entirely absent.
21. For the foregoing reasons, the decision of the First-tier Tribunal is set aside, with no findings preserved.

Decision

The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.

The decision of the First-tier Tribunal is set aside.

The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Taylor House, with a time estimate of 2 hours by any judge except First-tier Tribunal Judge Majid. A Bengali interpreter is required.

Signed Date: 4 October 2016
T Kamara
Judge of the Upper Tribunal