Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ia/13968/2014
IA/09838/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th October 2016
On 28th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

Mr Prakash [C] (first appellant)
Mrs K.C. [S] (SECOND appellant)
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Singer, Counsel for Paul John & Co Solicitors, London
For the Respondent: Mr Nath, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellants are citizens of Nepal born on 28th August 1978 and 7th November 1984 respectively. The First Appellant appeals the Respondent's decision of 10th March 2014 refusing to vary his leave to remain in the United Kingdom on the basis of ten years' residence and to remove him by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006. The Second Appellant appeals the Respondent's decision of 20th February 2015 refusing her leave to remain in the United Kingdom on the basis of her family life under paragraph 284 of Appendix FM and paragraph 276ADE(1). The appeals were heard together by Designated Judge of the First-tier Tribunal Shaerf and Judge of the First-tier Tribunal Cassel as a panel, on 4th March 2016 and dismissed on immigration grounds and human rights grounds in a decision promulgated on 24th March 2016.
2. An application for permission to appeal was lodged and permission to appeal was granted by Judge of the First-tier Tribunal Hollingworth on 1st September 2016. The permission states that there is an arguable error of law which has arisen in the application of Section 55 of the Borders, Citizenship and Immigration Act 2009 and the duty of the Tribunal relating to the Appellants' young child and his best interests. The child is less than 4 years old and has been undergoing tests for a medical condition. There is a possibility that the juvenile arthritis diagnosis which was given is wrong and the child has been referred for an urgent bone biopsy following an abnormal MIR scan. The permission states that it is arguable that the Tribunal should have caused enquiries to be made in order to ascertain the diagnosis and prognosis of such a young child before reaching a final conclusion as to what was in the child's best interests.
3. There is a Rule 24 Response which states that the panel properly considered the appeal in respect of paragraph 276A relating to the First Appellant as there was a break in his continuous residence. The Response goes on to state that the panel properly considered the issue of Section 55 at paragraph 43 to 46 of the decision and whether it would be reasonable to expect the child to be returned with his parents to Nepal. It goes on to state that no adjournment request was made. There was no up-to-date or pending medical evidence put before the Tribunal and the Appellants cannot now seek to rely on events, post-hearing, to suggest that the Tribunal materially erred in law in the consideration of the best interests of the child.
The Hearing
4. There is now new evidence about the child's health. The child has been diagnosed with acute lymphoblastic leukaemia and is undergoing chemotherapy at the Royal Marsden Hospital. The treatment is highly specialised and is due to last for over three years. It requires close monitoring as he could relapse and the cancer could spread.
5. Both parties agreed that Section 55 now requires to be dealt with based on this new evidence. Both parties asked me to remit this claim back to the First-tier Tribunal with all the evidence, including the new evidence on the child's health, to be produced for that hearing.
6. Counsel for the Appellants asked that at the First-tier hearing the child's parents, being the two Appellants in this claim, be recalled to give evidence. He submitted that in the decision there is no clear finding as to what is in the child's best interests and that further enquiries should have been suggested. He also submitted that there is no reference to policy guidance relating to the discretion which might enable the gap in the ten year residence of the First Appellant to be ignored because of the extreme circumstances in this case, which were beyond the First Appellant's control.
7. Counsel referred to the first Appellant previously requesting a grant of student leave to enable him to remain in the United Kingdom until he had his degree certificate but the Respondent refused this and suggested that the First Appellant made an out-of-time application. Counsel submitted that this is why there is the ten month gap in his legal residence. He submitted that had this been granted this particular issue would not have arisen.
8. Based on the new evidence before me about the child's health I am prepared to refer this claim back to the First-tier Tribunal as requested. The 2 appellants in this case should be recalled to give evidence on all issues, in particular the health of the child and section 55 and the new evidence referred to herein on the child's health will form part of the evidence before the First-tier Tribunal.
9. No findings of the First-tier Tribunal can stand. Under Section 12(2)(b)(i) of the 2007 Act and Practice Statement 7.2 the nature and extent of judicial fact-finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal. Members of the First-tier Tribunal chosen to reconsider the case are not to include Designated Judge of the First-tier Tribunal Shaerf and Judge of the First-tier Tribunal Cassel.
10. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge I A M Murray 28th October 2016