Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09720/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
on 20 October 2016
on 24th October 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

AFSAR SALEEM
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr Maleqe, of Leonards, Solicitors
For the Respondent: Mr Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of India, born on 12 April 1992. She appeals against a determination by First-tier Tribunal Judge Boyd, dismissing her appeal against refusal of further leave to remain on the basis of her family and private life in the UK.
2. The appellant was granted leave to remain in the UK on 11 December 2013, valid until 13 January 2015, as the dependent of her husband. He does not appear to have been originally to have been a UK citizen, but to have become one at some date after the application leading to these proceedings. At that time the couple had two children, born on 19 June 2012 and 20 October 2013, who at that time were nationals of India but not of the UK. In course of these proceedings the children (who did not appeal against refusal of their concurrent applications) became UK citizens. There is now also a third child of the family, who is also (or is entitled to become) a UK citizen.
3. The respondent refused the appellant's application for reasons set out in a letter dated 3 March 2015.
4. The material produced by the appellant is not summarised or analysed in the letter, but the decision proceeds on the basis that she did not present the specified evidence to meet the financial requirements with her application. The appellant does not seem to have disputed that.
5. The application fell also to be reused for non-production of a valid English language certificate.
6. The respondent considers paragraph EX1. It is accepted that the appellant has a genuine and subsisting relationship with her "settled partner", but there are no insurmountable obstacles or very significant difficulties to their continuing family life together outside the UK. The children were born in UK but no evidence has been provided that it would be unreasonable to expect them to leave the UK, "especially as part of the family unit".
7. In terms of her private life, there were no very significant obstacles to the appellant's reintegration into India.
8. The position of the children was found not to meet the requirements of paragraph 276ADE of the rules.
9. The respondent took account of the best interests of the children under reference to section 55 of the 2009 Act, but no evidence had been provided to show that they might not live in India.
10. There were no exceptional circumstances qualifying for a grant of leave outside the rules.
11. In her grounds of appeal to the FtT the appellant said that the respondent "failed to properly consider" her rights under article 8 of the ECHR, "failed to properly apply" the immigration rules, "failed to properly consider the best interests of the child", and that the decision was "not in accordance with the law? and against the weight of the evidence".
12. The respondent's decision is on its face watertight, and those grounds are vague. They contain nothing whereby the appellant might have expected success either by reference to the rules, or outside the rules.
13. The hearing in the FtT took place on 30 July 2015. The appellant and her husband gave oral evidence. After the hearing, the appellant's representatives provided evidence of the registration of the two older children as UK citizens on 30 July 2015. The judge had been told that such applications were pending.
14. It appears that for some time thereafter the judge was unable to complete the decision. The appellant's representatives in the meantime sought rehearing, but this did not take place. The judge's decision is dated 18 April 2016.
15. The judge found (correctly) that as to the financial limits he should take account of the situation at the date of decision, when the children were UK nationals. The evidence of income presented to him was not entirely clear, but even taking the best available view of it he found the appellant to fall short of showing the required income. He observed that the appellant might now be able to provide the required evidence in a fresh application. He did not find any reason to grant the appeal under article 8, outside the rules.
16. The appellant's grounds of appeal to the UT are headed firstly "delay". This is said in itself to render the determination unsafe and to require a fresh hearing.
17. The second heading of the grounds of appeal is "the best interests of the child". The judge is said to have failed to consider the best interests of one of the children, being British, and his ability to "utilise services such as the NHS available ? as a British nationality". The complaint is also made that the judge "improperly" referred to the child being "returned" or "removed" which could not happen due to the child's British nationality at the date of promulgation of the determination.
18. The third heading in the grounds is "maintenance calculation - appendix FM". The said that the judge having accepted post hearing evidence failed to place weight upon it, and that this was of great significance, as the judge's assessment "would take the appellant to a position where she would qualify? with ease".
19. (This ground rests on the underlying assumptions that amounts no longer need be added for the children, being British, and that the appellant could succeed by showing that although her application could not succeed at the time it was made, she was at the date of the hearing in a position to meet the different criteria governing an application hypothetically made at that date.)
20. In a written response under rule 24 to the grant of permission the respondent says that when read in the round it is plain the judge reached reasoned conclusions that the appellant, her husband and very young British citizen children might relocate to India and maintain family life there; the language was clumsy but the thrust of the reasoning was clear and disclosed no material error in law.
21. Having heard from both representatives, I indicated that I was satisfied that the decision does not err in any point of law such as to require it to be set aside.
22. It is unfortunate that there was a long delay, and that no explanation for it was provided. However, there is nothing to disclose that but for the delay the outcome might have been any different.
23. There is a slip by the judge in referring to return of the children to India and to their removal, when by the time the decision was issued no such enforcement could take place, as they were UK citizens. Again, however, that makes no difference to the outcome.
24. An appeal to the FtT is not conducted against an ever shifting target, or as if it were an ongoing process of application to the respondent.
25. In general, applications under the relevant part of the rules have to be accompanied by the evidence to support them, specified by the rules in detail. There is no free ranging opportunity to improve or perfect applications in course of an appeal, or to succeed by showing that the rules might be met at some later date. Nor did the appellant show that even on further evidence she was able to satisfy the rules.
26. The appellant could not bring herself within the rules on financial and on language aspects, and there was nothing to justify a finding that a family all of Indian extraction and nationality might not reasonably be expected to return to India.
27. There was at the date of the hearing (although not then established by evidence before the judge) a clear possibility that under shortly pending circumstances the appellant might be able to apply again with good prospects of success under the rules. That, however, is a good reason for refusing the appeal outside the rules, not for allowing it. There can be no disproportionate interference with family and private life where a party may apply and succeed under the rules. In other words, there is no human right not to make the proper application. If the appellant has a remedy, that is where it lies.
28. The determination of the First-tier Tribunal shall stand.
29. No anonymity direction has been requested or made.

20 October 2016
Upper Tribunal Judge Macleman