Tribunal decisions

The decision

IAC-AH-DN-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/01791/2015
IA/01810/2015
IA/01805/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16th September 2016
On 09th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Varinder [P] (1)
Mandeep [P] (2)
[a s] (a minor) (3)
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr M Aslam, Counsel
For the Respondent: Ms Z Ahmad, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellants are citizens of India. The first Appellant was born on 3rd January 1989 and the second Appellant on 19th November 1986. The third Appellant is their minor child born on 4th January 2012.
2. On 27th June 2014 the first Appellant made application for leave to remain in the United Kingdom on the grounds of family and private life. The second and third Appellants are his dependants. The application was refused by the Secretary of State on 17th December 2014. Consideration was given to the Appellant's family life under Article 8 which from 9th July 2012 had fallen under Appendix FM of the Immigration Rules. The third Appellant's application was considered as the dependant child of the first Appellant. All three applications were refused.
3. The Appellants appealed and the appeal came before Judge of the First-tier Tribunal O'Brien sitting at Newport on 11th March 2016. In a decision and reasons promulgated on 22nd March 2016 the Appellants' appeals were dismissed under the Immigration Rules and on human rights grounds.
4. On 30th March 2016 Grounds of Appeal were lodged to the Upper Tribunal. On 11th August 2016 Judge of the First-tier Tribunal Keane granted permission to appeal. Judge Keane noted that the grounds varyingly expressed a single proposition namely that the judge had made an arguable error of law in considering where the best interests of the third Appellant lay. He noted that the judge's assessment of the best interests question was to be found at paragraph 33 of his decision and that the judge had made an arguable error of law in failing correctly to direct himself to the test which he was to apply. He noted that the judge had to decide where the best interests of the third Appellant lay and instead approached his assessment by stating as the paramount issue which he was to resolve whether it would be unreasonable to expect the third Appellant to leave the United Kingdom. In a detailed grant of permission set out at paragraph 2 Judge Keane concluded that the judge arguably applied the wrong test in considering paramountly whether it would be reasonable to expect the third Appellant to leave the UK and not to assess the issue as to where his best interests lay.
5. On 18th August 2016 a detailed response to the Grounds of Appeal was filed by the Secretary of State under Rule 24. The Rule 24 response indicates that there is a complaint made that the First-tier Tribunal Judge had not considered the third Appellant's best interests. They submit that the judge at paragraph 40 of the determination clearly had considered his best interests and applied the ratio of the guiding authority of Zoumbas. Authorities were referred to at paragraphs 5 and 6 therein and that the judge had considered the correct approach. The Rule 24 response sought dismissal of the appeal.
6. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellants appear by their instructed Counsel Mr Aslam. The Secretary of State appears by her Home Office Presenting Officer Ms Ahmad.
Submissions/Discussion
7. Mr Aslam submits that a proposition in law that a case like this cannot succeed outside the "seven year Rule" is a flawed proposition and that each case is different. He submits that the starting point has to be in the making of a proper assessment of the facts and that the only assessment carried out is to be found at paragraphs 33 and 34 of the decision and what the judge has considered therein is either insufficient or reflects a failure to apply the facts of the case. He submits that the test is not one of reasonableness and that the judge has equated the test that he has applied to one of best interests and submits that this is the wrong approach. He contends that paragraph 34 of the decision is insufficient and that the judge should have looked at the Rules and as to whether or not there are compelling circumstances. He contends that the judge has set out the law perfectly properly but has then failed to apply it. He submits that if the assessment had been carried out properly then the judge would have found that is was disproportionate to remove the child and the family. He asked me to find that there are material errors of law in the decision of the First-tier Tribunal and to remit the matter back to the Tribunal for rehearing before a freshly constituted court.
8. Ms Ahmad submits that the judge has carried out an assessment and considered the best interests of the child which he was entitled to do. She refers me to paragraph 30 of the decision which sets out the law and that the judge has then gone on at paragraph 33 to consider different factors of the child's life. She acknowledges that the relevant paragraphs could have been worded better but that the judge was right in finding that it was in the best interests of the third Appellant to return with his parents as a family unit. She emphasises that I have to be satisfied that a different decision would be reached if the matter were to be reheard.
The Law
9. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
10. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings
11. The submission of the Appellants' representative is that the First-tier Tribunal Judge made a decision without having had proper regard to the need to safeguard and promote the welfare of the child, failed to identify what the best interests of the child were in this case and thereafter failed to form his own view as to the third Appellant's best interests and failed to properly factor those interests into its consideration.
12. The issue herein is whether or note the judge has materially erred in law in his decision or whether in fact the submissions of the Appellants' legal representatives merely amount to disagreement with the judge's findings. Ms Ahmad has indicated she acknowledges that the findings of the judge could have been worded better. I agree with that analysis. However that does not mean firstly that the judge has erred in law or secondly that if the matter were to be reheard that a judge would come to a different conclusion.
13. It is appropriate to consider what the judge has done. The judge has set out the evidence in some detail at paragraphs 12 to 16. The judge has then set out in considerable detail at paragraphs 17 to 30 the law. He has addressed paragraph 276ADE of the Immigration Rules and the requirement of paragraph E-LTRP.1.2 and E-LTRC.1.6. Thereafter the judge has analysed the position regarding Article 8 outside the Rules including giving due consideration to the lead authority of SSHD v SS (Congo) and Others [2015] EWCA Civ 387, the considerations to be addressed under Section 117B of the 2002 Act and the considerations pursuant to Section 55 of the Borders, Citizenship and Immigration Act 2009 including the conclusions reached, and the guidance given, in the authority of Zoumbas v SSHD [2013] UKSC 74.
14. It is against this background that the judge has made his findings. He has gone on in the conclusions to consider the position under the Immigration Rules and made findings at paragraph 32 that he was entitled to. Thereafter the position of the third Appellant has been addressed and the judge has considered whether there are any compelling circumstances justifying a grant of leave to remain outside the Rules. The judge has again made findings that he was entitled to. A more detailed set of findings may have led to a different decision being reached by the judge granting permission. However the First-tier Tribunal Judge has addressed the issues, has considered the facts of this matter and has made findings which ultimately he was entitled to and whilst he has only given scant reasons I am satisfied that they are sufficient to show he has considered all the relevant factors and that the decision consequently discloses no material error of law. In such circumstances the Appellants' appeal is dismissed.

Notice of Decision
The decision of the First-tier Tribunal Judge discloses no material error of law and the appeal is dismissed.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD
No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris