Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-005268
First-tier Tribunal Nos: HU/51159/2021
IA/03969/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 April 2023

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR
DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

MR ARIF MOHAMMAD SHAJIB
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Collins (Counsel)
For the Respondent: Mr S Whitwell (Senior Home Office Presenting Officer)

Heard at Field House on 3 March 2023

DECISION AND REASONS
1. This is an appeal against the determination of FtT Judge French, promulgated on 13th January 2022, following a hearing at Birmingham Priory Courts on 11th January 2021. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before us.
The Appellant
2. The Appellant is a male, a citizen of Bangladesh, who was born on 30th October 1986, and who appealed against the refusal by the Respondent of his application for leave to remain in the United Kingdom on the basis of his private life, which was over a period of more than ten years of continuous residence in the UK.
The Appellant’s Claim
3. The essence of the Appellant’s claim before the First-tier Tribunal was that he was a registered carer for his aunt with whom he lived, had been away from Bangladesh, the country of his origin, for some fourteen years, and would face insurmountable obstacles in being able to sustain himself in that country were he to be forced to return, where he has no visible forms of support and where he would face ensuing problems of reintegration back into that society.
The Judge’s Findings
4. The judge had regard to the contents of the refusal letter dated 30th March 2021. It was noted that the Appellant had no claimed partner or dependent children, as recounted in the refusal letter. He did not qualify for leave to remain under the ten year private life route either, as the refusal letter concluded. In order to qualify under paragraph 276ADE(1)(iii) of HC 395 he needed to have lived in the UK continuously for twenty years, which he had not done, because he had only arrived in this country in 2009. He could also not show that there would be very significant obstacles to his integration into the country of his origin because he had lived in Bangladesh up to the age of 22 years and was familiar with the life, language, and culture there. Although the Appellant claimed to have a viable private life in this country, he had entered as a student in 2009, and developed his private life thereafter. However, he had done so because he had overstayed his leave to remain. He claimed to be providing care for his aunt but she had four children of her own, two of whom lived in Birmingham where the aunt lived, and the Respondent took the view that the primary responsibility for her care lay with her own children, and it was implausible that they would fail to ensure that she was well cared for, in the event of the Appellant being required to return to Bangladesh.
5. Having set out the reasons given by the Respondent for the refusal of the Appellant’s application, the judge gave her own decision based on the evidence before her. She found that, “the Appellant has made a number of previous applications, which have already been considered by other judges” and that this was one of the issues “that I need to address” (paragraph 13). Her next sentence after this was that she was “conscious of the principles set out in Devaseelan [2002] UKIAT 00702, which established that the first decision by a judge “should always be the starting point” (paragraph 13). In the same paragraph, the judge then referred to a number of applications that the Appellant had made over a period of time to remain here, including a judicial review application which by consent was settled in the Appellant’s favour.
6. When it was suggested in the skeleton argument that the Appellant only became an overstayer “because his previous representatives neglected to submit an application in time”, the judge held that “that is not the case” (paragraph 14) and gave reasons for that. As she reasoned, “he became an overstayer because he did not leave the UK, after his leave had expired” (paragraph 14). More serious, however, was the fact that the judge considered that “there are a number of inconsistencies” (paragraph 15) in the Appellant’s evidence. He had claimed that his aunt supported him financially, but in her evidence she suggested that she “had very limited means”. He had also claimed that he had a “special relationship” with his aunt, but the judge held that “she had four children of her own, two of whom lived locally and visited her every week” and the other two children visited monthly. There was no suggestion, as the judge found, of any estrangement within the family. Looking at the aunt’s circumstances, the judge recorded that “the only help she said she needed was reminding her to take medication, doing housework, cooking and shopping”, and that “there was no reason as to why the aunt’s children would be unable to provide that level of support ...” (paragraph 15).
7. The judge then considered whether the Appellant would face “very significant obstacles” if he had to return to Bangladesh given the requirements of paragraph 276ADE(1)(vi). She concluded that he would “have no difficulties in reintegrating into Bangladesh”. He had lived there until 22 years of age, was in regular contact with his family members and especially his father, and the judge held that “the Appellant would be assisted by his family upon return to Bangladesh” (paragraph 16). Although the Appellant had not completed his degree, on his own oral evidence, “he had A levels and level 5 NVQ” and as a result he was “in a much better position than the majority of people to obtain employment” (paragraph 16) were he to return to Bangladesh. The Appellant’s aspirations of working in banking were not frustrated, according to the judge, were he to return to Bangladesh as he could find similar work there (paragraph 16).
8. Finally, the judge had regard to the possibility of whether the Appellant had health difficulties but concluded that in that event his health needs could be meet in Bangladesh. Indeed, she was clear that she had not been provided with any evidence that the Appellant had a significant physical or mental health problem and he was not under the care of a specialist in this country (paragraph 17). The judge ended by observing that “there is no merit in this appeal, just as there was no merit in his two previous unsuccessful claims for leave to remain in the UK on human rights grounds”, and that “there are no exceptional circumstances” (paragraph 18).
Grounds of Application
9. The grounds of application state that the judge erred at paragraph 13 of the determination by purporting to apply the decision in Devaseelan and the principles that arose under that case because, although the Appellant had made two previous applications, they were refused without a right of appeal and there had not ever been a judicial consideration of those applications. Second, the judge wrongly concluded that the Appellant could not succeed under paragraph 276ADE(1)(vi) on grounds that there were no significant obstacles in the Appellant’s path in reintegrating into society in Bangladesh (see paragraph 16) because documentary evidence before the judge supported the Appellant’s assertion that his father would not be able to assist him in re-establishing himself in Bangladesh, and the judge did not assess this evidence. Third, the judge had also erred in concluding that there would not be unjustifiably harsh consequences to him upon his return because this failed to properly take into account a possible breach of Article 8 rights by the state in this country. Fourth, the judge had held that there was an inconsistency in the Appellant’s evidence (paragraph 15) in relation to his statement that he had a special relationship with his aunt, because the fact that the aunt had regular contact with her children did not prevent the Appellant from having a special relationship with her, given that he lived with her. In fact, there was no consideration of the emotional bond between the two. There was no consideration of the strength and depth of their relationship. Fifth, in stating that the Appellant’s children could meet his aunt’s care needs (at paragraph 15) the judge had failed to consider the evidence given by the Appellant that they were simply not in a position to do so, when only two of the children lived in Birmingham, and had duties and responsibilities towards their own families, such that they were unable to provide the necessary assistance to their own mother. The suggestion in the same paragraph that carers could be arranged to come and look after the Appellant’s aunt in this country failed to give due regard to the fact that the Appellant had an emotional bond with his aunt and vice versa, which could not be replicated with them. Finally, the judge had regard to an irrelevant matter (at paragraph 17) in considering the Appellant’s own health needs because this did not form any part of the Appellant’s case and was irrelevant to the judge’s assessment.
10. After permission to appeal was refused by FtT Judge Cox on the grounds that, although the judge erroneously referred to Devaseelan she did not apply the case, it was eventually granted on 30th November 2022 by Upper Tribunal Judge Keith. In applying Devaseelan (at paragraph 13), he held that it was arguable that the FtT Judge erred in law. Second, in stating that the Appellant’s earlier applications had no merit, “as part of his conclusions at paragraph 18”, Judge Keith held that this also could be an arguable error that was material. Third, the judge’s failure in having regard to the Appellant’s former representatives (at page B3 of the FtT bundle) which gave an explanation as to why the Appellant believed that an in time application had been made by his previous representatives, when it had not been, was also arguably an error, because of a failure to engage with this issue. Although the other grounds were regarded as being much less strong, Judge Keith granted permission on all grounds.
Hearing & Evidence
11. At the hearing before us on 3rd March 2023, Mr Collins, appearing on behalf of the Appellant, submitted that the grounds were self-explanatory and he would not have much to add to them. The main point was that it was difficult to know to what extent the judge’s reference to Devaseelan and the decision by previous judges had infected her assessment of the merits of the current appeal. We asked that whereas that was plainly correct, the determination showed that after her erroneous citation of Devaseelan, the judge had returned back to the correct facts before her and considered them on their own merits. Mr Collins replied that that was a conclusion that was difficult to reach with any degree of confidence because the judge had also referred to the Appellant’s previous applications having been “considered by other judges”, which took the assessment of the merits of the appeal beyond what were actually the facts in existence before the judge. We pointed out that the “starting point” principle in Devaseelan was not a legal straitjacket and that it permitted subsequent judicial fact-finders to depart from the earlier judicial decision on a principled and properly reasoned basis (see MW v SSHD (Fast Track appeal: Devaseelan guidelines) [2019] UKUT 00411 (IAC)), and that this is what the judge would also have had in mind. Mr Collins replied that “it is just difficult to know”. We explained, that it was entirely plausible that at the end of the day the judge was looking at the body of the evidence before her and what had been decided by the judge below before her.
12. Mr Collins moved on to his second point, which was that there was no evidence that other family members would be able to support the Appellant and that the judge had erred in this respect as well. The judge had also erred in concluding that the application of the Appellant had not been rejected because it had not been made on time. That was plainly the case. Indeed, the evidence had been furnished to this effect before her, submitted Mr Collins. The extent of the errors, submitted Mr Collins, was such that the judge was not only factually wrong with respect to such matters, but was disbelieving the Appellant on the basis of those cumulative errors of fact. The Appellant was effectively being blamed for not having made his application on time when this was not so and that this demonstrated a lack of care by the judge. Mr Collins concluded with the observation that in the circumstances, the appropriate course of action was for a remittal back to the First-tier Tribunal, and for the appeal to be considered on the basis of the correct facts.
13. In his reply, Mr Whitwell submitted that whereas it was plainly correct that the first sentence of paragraph 13 was wrong, the fact was that this could be excised from the remaining part of the same paragraph, because after that initial error, the judge made her own findings of fact on the evidence as it stood before her. This was plain to see if one has regard to the last sentence of that paragraph which reads that, in the absence of the judge being provided with any detailed information in respect of the two earlier applications, “in the circumstances I shall focus on the merits of the current application”. This shows, submitted Mr Whitwell, that the judge had not viewed the previous applications disfavourably. She simply had no information in relation to those applications. She disregarded them. Second, the judge was entitled to conclude as she had done (at paragraph 16), because the judge not only said that, “I see no reason why the Appellant would be unable to provide for himself financially in Bangladesh”, but had also added, “I have no doubt that the Appellant would be assisted by his family upon return to Bangladesh”. When the Appellant said that he wished to pursue a career in banking and had “not considered any other career” the judge concluded that it was not necessary for the Appellant to confine himself just to banking as “he is able-bodied” and could find work in another trade. Third, as to the Appellant’s relationship as a carer for his aunt, the fact that her two children lived locally and visited her every week, and her remaining two children visited her monthly, showed that the Appellant alone did not have a “special relationship” with the aunt (paragraph 15). This was especially so given that the only help she needed was being reminded to take her medication, doing housework, cooking and shopping. It was important, submitted Mr Whitwell, to look at the actual care that the aunt required and was receiving. That was absent.
14. In his reply, Mr Collins submitted that it was not possible to clinically excise the first sentence of paragraph 13 from the rest of it when it referred to the Appellant’s previous applications having “already been considered by other judges”, because the body of that paragraph shows it to have been clearly infected by that judge’s initial comment made right at the outset and that comment was one which was plainly erroneous. Second, as far as the Appellant’s care of his aunt was concerned, the fact that she also had care from her own children, did not mean that the care that the Appellant gave to her, on a regular day-to-day basis on account of living with her, did not create a special relationship between him and her. The judge’s error was plainly material.
15. We reserved our decision.
No Error of Law
16. Notwithstanding Mr Collins’ valiant efforts to persuade us otherwise, in submissions that were measured and temperate in tone, we have concluded that there are no material errors of law in the judge’s decision. Our reasons are as follows.
17. First, whereas it is plainly incorrect of the judge to have started her assessment of the evidence on the basis that, “one of the issues that I need to address is that the Appellant has made a number of previous applications, which have already been considered by other judges” (at paragraph 13), she does conclude that she “ha[d] not been provided with any detailed information as to exactly what the specific claims had been in respect of the two earlier applications”. That being so, the judge assessed the evidence on the basis that, “in the circumstances I shall focus on the merits of the current application” (paragraph 13) and that is what she did.
18. Second, although the Appellant’s case was that he only became an overstayer because his previous representatives had neglected to submit an application on time (as set out in the skeleton argument referred to at paragraph 14), the judge was correct to say that the Appellant had no leave to remain in the UK after 15th September 2013. His representatives, however, only made an application for leave on 25th October 2013, which was after the expiry of his current leave to remain in the UK as a student. As the judge concluded, “he became an overstayer because he did not leave the UK, after his leave had expired” (paragraph 14).
19. Third, the judge was entitled to conclude that there were “numerous inconsistencies” in the evidence of the Appellant. For example, he claimed his aunt supported him financially. However, she said that she had “very limited means” (paragraph 15). He claimed that he had developed a special relationship with his aunt on account of the care that he provided but the only effective care “needed was reminding her to take medication, doing housework, cooking and shopping” (paragraph 15). That was a finding that the judge was entitled to make on the evidence before her. He claimed to be facing “very significant obstacles” if returned to Bangladesh, but the Appellant “was familiar with the language and customs” having “lived there until he was 22 and continued to have regular contact with family members there, in particular his father” (paragraph 16). The judge was entitled to conclude that there was “no reason why the Appellant would be unable to provide for himself financially in Bangladesh” (paragraph 16) and especially given that “he had O levels and a level 5 NVQ” and “was therefore in a much better position than the majority of people to obtain employment”. Equally, the judge was not in error in her finding that, “I do not accept that it is reasonable for the Appellant to say that if he could not work in banking he could not work” (paragraph 16).
20. Finally, any quibble with the judge having addressed the Appellant’s health needs on account that he had none, and as someone who was not under the care of a specialist, and who was returning somewhere with “a functioning healthcare system in Bangladesh” (paragraph 17) was not an error of fact, but only a consideration of the entirety of the circumstances before the judge. It is noteworthy that this is at the end of her determination and it was undertaken for the sake of completeness.
Notice of Decision
21. There is no material error of law in the judge’s decision. The determination shall stand.
22. No anonymity order is made.

Satvinder Juss

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15th March 2023