Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA093682015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd June 2016
On 14th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

Miss Sabikunnaher
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: No Appearance
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS

1. For ease of comprehension, the parties are referred to by their appellate status and positions before the First-tier Tribunal.
2. The Appellant appeals with permission against the decision of First-tier Tribunal Judge Telford dismissing the Appellant's appeal against the Secretary of State's decision refusing to grant her leave as a Tier 4 (General) Student Migrant.
3. The First-tier Tribunal promulgated its decision dismissing the Appellant's appeal against the Respondent's decision on 29th October 2015.
4. The Appellant appealed against that decision and was granted permission to appeal by First-tier Tribunal Judge Andrew on the following grounds:
"The grounds complain that the judge did not consider Article 8. It is correct he did not. Article 8 is raised in the Appellant's written submissions and thus should have been considered by the judge."
5. The Appellant was unrepresented before the First-tier Tribunal and did not attend and consequently her appeal at the First-tier proceeded on the papers.
6. I received a letter dated 2nd June sent by fax from the Appellant confirming that she was unable to attend the hearing today due to her sickness and she requested that the appeal proceed on paper. Given the Appellant's request and there being no objection from the Respondent, I was happy to proceed in her absence particularly as she had attached to her letter of 2nd June further written submissions numbering some eleven paragraphs which I have fully taken into account in reaching my decision.

Error of Law
7. I do not find that there was an error of law in the decision such that it should be set aside. My reasons for so finding are as follows:
8. Judge Andrew is right in granting permission given that it is arguable that Judge Telford failed to consider Article 8. It is correct that Judge Telford did not consider Article 8. Article 8 was raised in the Appellant's written submissions to the First-tier Tribunal which appear in her bundle. Those written submissions state that in summary the Appellant has been living in the UK for a long time and has established her private life through her education and integration into society. It is said that she is a law-abiding and genuine student and is determined to further her career in this country and has an expectation of completing her higher education and that she invested time and money to achieve her higher education in the UK and that if the appeal was unsuccessful it would jeopardise her long-term career goals.
9. The submissions before the Upper Tribunal made by the Appellant on her behalf and considered by me in her absence argue further to that that the Respondent failed to engage with Article 8 in assessing her Tier 4 Student application and repeats the submissions that she has established her private life through her education and integration into society and that she wishes to complete her higher education. Reference is also made to the decision of this Tribunal in Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC), which establishes that Sections 117B(4) and (5) are not parliamentary prescriptions of the public interest but operate as instructions to courts and Tribunals to be applied where the balancing exercise is conducted in order to determine proportionality.
10. In my view Judge Telford did err in failing to consider Article 8. However, the error was not material for the reason that the submissions made on the Appellant's behalf did not have a prospect of success anyhow given the vague and unsubstantiated nature of her submissions regarding her Article 8 private life and particularly in light of higher court authority by which I am bound. In that respect I take into account the decision of Patel & Ors v Secretary of State for the Home Department [2013] UKSC 72 wherein the Supreme Court found as follows at [57]:
"It is important to remember that Article 8 is not a general dispensing power. It is to be distinguished from the Secretary of State's discretion to allow leave to remain outside the Rules, which may be unrelated to any protected human right. ? One may sympathise with Sedley LJ's call in Pankina for 'commonsense' in the application of the Rules to graduates who have been studying in the UK for some years ? However, such considerations do not by themselves provide Grounds of Appeal under Article 8, which is concerned with private or family life, not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under Article 8."
11. That decision of the Supreme Court was followed by this Tribunal in the decision of Nasim and others (Article 8) Pakistan [2014] UKUT 25 (IAC) wherein it was stated in the head note as follows:
"The judgments of the Supreme Court in Patel & Ors v Secretary of State for the Home Department [2013] UKSC 72 serve to re-focus attention on the nature and purpose of Article 8 of the ECHR and, in particular, to recognise that Article's limited utility in private life cases that are far removed from the protection of an individual's moral and physical integrity."
12. I am further fortified in my findings concerning the Appellant's private life not having any prospect of success in this appeal given the judgment of the Court of Appeal in Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195 where Moore-Bick LJ at [20] said the following which is of general analogy and application:
"? I think it is important to bear in mind that this court will allow an appeal against a decision of the Upper Tribunal only if it is satisfied that it involved a material error of law. The most that can be said of the decision in the present case is that the Tribunal failed to consider the merits of the Appellant's Article 8 claim. However, there was no evidence before the Tribunal capable of supporting the findings of fact necessary to enable their argument to succeed. I find it difficult to see, therefore, how it can be said that any such error was material since, if the Tribunal had considered that Ground of Appeal, it would have been bound to reject it."
13. Similarly, there is no evidence other than the vague written submissions made on the Appellant's behalf at the First-tier Tribunal and again before me in the Upper Tribunal. These submissions are incapable of supporting the findings of fact necessary to enable her argument to succeed. Consequently, I cannot see that there is any such error that was material since if Judge Telford had considered that Ground of Appeal he would have been bound to reject it.
14. In light of the above findings the decision of the First-tier Tribunal is affirmed.

Notice of Decision
15. The appeal is dismissed.

Signed Date 10 June 2016

Deputy Upper Tribunal Judge Saini