Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA037122014
IA007802014
IA008242014

THE IMMIGRATION ACTS

Heard at Field House
Determination & Reasons Promulgated
On 1st April 2016
On 13th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

MR SUKHDEV (1)
MRS KAVITA KAVITA (2)
[K B] (3)
(ANONYMITY DIRECTION NOT MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr M Hussain (LR)
For the Respondent: Mr S Walker (HOPO)

DETERMINATION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge N B Hussain, promulgated on 13th August 2015, following a hearing at Richmond on 3rd July 2015. In the determination, the judge dismissed the appeal of Mr Sukhdev, Mrs Kavita Kavita, and [KB]. The Appellants subsequently applied for, and were granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellants
2. The Appellants are nationals of India. The First Appellant, who is the principal Appellant, was born on 15th December 1981, and is a male. The Second Appellant, who is his dependent wife, was born on 2nd October 1988. The Third Appellant, who is their dependent child, was born on [ ] 2010. The Appellants made their application for leave to remain in the UK on 20th September 2013, and these applications were refused on 29th November 2013 on the basis that the bank statements submitted with the application were not genuine and valid. This was important because the principal Appellant had made an application for leave as a Tier 4 (General) Student, and had to show that he could meet the maintenance requirements in paragraph 245ZX of the Immigration Rules.
The Judge's Findings
3. The judge held that this was a case where the Respondent Secretary of State had alleged that the bank account of the principal Appellant was false, but the burden of so proving rested on the Secretary of State, and in this case the Respondent Secretary of State "has provided a detailed verification report which includes evidence emanating from the bank that issue the documents relied on by the Appellant." The judge went on to say that, "despite being given an adjournment to obtain a response to this, other than assertions made in the Appellant's representative's letter referred to above, no documentary evidence has been produced in rebuttal" (see paragraph 10).
4. The judge accordingly dismissed the appeal under the Immigration Rules. The judge did, then however, have also to consider any obligations arising upon the Secretary of State under human rights law and under international law. He observed that, although the Grounds of Appeal asserted rights under Article 8 of the Human Rights Convention, and that "it is asserted that the Appellant's wife is pregnant and due to give birth in December," because the Appellant and his dependent wife and children had not attended court, "it is not possible for the Tribunal to carry out any meaningful assessment of the Appellants' rights under Article 8" (see paragraph 13). That being so, the judge held that these related issues could be considered at the time when enforcement action was taken against the Appellants.
Grounds of Application
5. The grounds of application state that the judge erred in not considering Article 8 of the ECHR.
6. On 17th February 2016, permission to appeal was granted on the basis that the judge had recognised that the Second Appellant was pregnant, and yet went on to dismiss the entire appeal, without considering Article 8 and that, "irrespective of what evidence was before the judge, it is open to argument that Article 8 should have been considered bearing in mind that it had been pleaded in the Grounds of Appeal."
Submissions
7. At the hearing before me on 1st April 2016, Mr Hussain, appearing on behalf of the Appellants repeated the Grounds of Appeal and stated that there had been a failure to consider Article 8 and the judge was wrong to have said that there could be no meaningful assessment in the absence of the Appellants' presence before the Tribunal.
8. For his part, Mr Walker submitted that there was no Appellants' representative in attendance, and the Appellants themselves did not come to court, and the judge was entitled to take into account the fact that the Appellant had only been in the UK for a short period of time, and even that on a temporary basis, so that even if Article 8 was not in terms considered, there would be no material error, because the appeal was bound to have been rejected.
9. In reply, Mr Hussain submitted that it was not just the fact that Article 8 had not been considered under the ECHR, but the Section 55 obligation under the BCIA 2009 had not been considered either, and there was an international obligation to consider the "best interests of the child" whenever an administrative decision was taken against an Appellant child. It is noteworthy, as Mr Hussain accepted, that Section 55 had not even been pleaded by those representing the Appellant.
Error of Law
10. I am satisfied that the making of the decision by the judge involved an error on a point of law, but this is not such as one to justify the setting aside of the decision. This is because the Upper Tribunal may (but need not) set aside the decision of the First-tier Tribunal (see Section 12(2)(a)) where this is unwarranted. I find it to be unwarranted for the following reasons. First, whereas it is the case that if Article 8 had been raised in the grounds, it ought at least in principle to have been determined by the judge, determining it would not have led to a result any different from that which the judge did in the event come to. The Appellant cannot succeed under the Immigration Rules. The only other possibility is a freestanding Article 8 jurisprudence.
11. In the case of Singh [2015] EWCA Civ 74, it has been made clear that MM (Lebanon) does not undermine the judgment of Sales J in Nagre and in any event Sales J's approach in Nagre has been endorsed in the Court of Appeal in MF (Nigeria) [2013] EWCA Civ 1192, namely that a two-stage process is necessary, whether it takes place within the consideration of the case under the Immigration Rules or outside the Rules, and that what the decision maker must do is apply the principles that emerge from the strata of jurisprudence in that event.
12. Applying these principles, it is clear that the Appellant could not have succeeded because he has only been in this country on a temporary basis as a student, and the case of EA makes it clear that this does not imply with it a right to remain in this country. As far as Section 55 BCIA was concerned, although this was a basis of the decision letter itself, being carefully addressed in that refusal decision, it never formed part of the Grounds of Appeal before the Tribunal.
13. The Appellant chose not to attend and chose not to send a representative on his behalf. Although Mr Hussain submitted that the Third Appellant was born in 2010 and is almost 6 years old, he neglected to add that the child only came to the UK in June 2011, and has only been here five years, so that he is young enough to accompany both parents back to India with no adverse impact being on his "best interests." In fact, as is clear from established case law his "best interests" are kept intact by keeping the family together: see Zoumbas [2013] UKSC 74.
14. Further, I should just add that both with respect to Article 8 ECHR and Section 55 BCIA 2009 the evidence submitted on behalf of the Appellant before Judge N B Hussain was jejeune and parsimonious. In fact, a look at the witness statement of the First Appellant, dated 7th March 2014 makes no reference whatsoever to either.
15. On the other hand, the Grounds of Appeal (see pages 14 to 21 of the Appellants' bundle) only referred to the fact that the Appellant has expended "substantial amount of money for his tuition fee with a view to obtain a prestigious UK degree" (see paragraph 23 on page 20), and it is well-established that this in itself would not have aided his Article 8 ECHR application to remain in this country.
Notice of Decision

There is no material error of law in the original judge's determination such that it should be set aside. The determination shall stand.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 11th June 2016