Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11465/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16th September 2016
On 23rd September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

chetnaben arvindbhai patel
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Miah of Counsel instructed by Imperium Group
Immigration Specialists
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of India whose date of birth is recorded as 3rd October 1983. She appealed the decision of the Secretary of State dated 18th March 2015 refusing to grant her leave to remain in the United Kingdom on human rights grounds. The appeal was heard by First-tier Tribunal Judge James, sitting at Hatton Cross on 17th February 2016. Judge James dismissed the appeal.
2. Not content with the decision of Judge James, by Notice dated 15th March 2016 the Appellant made application for permission to appeal to the Upper Tribunal contending that the judge had erred in reading the summary of the skeleton argument provided on behalf of the Appellant as including a concession that the Appellant did not meet the Immigration Rules. The grounds point particularly to paragraph 11 of the decision which reads:
"The skeleton argument submitted for the appeal concedes on page 4 of the Appellant's bundle that she does not meet the criteria of the rules for private life or family life under the Immigration Rules, and moreover she does not qualify for leave outside the rules under article 8 ECHR. However no withdrawal of this appeal has been made by the Appellant."
3. Quite why the judge thought there was a concession is difficult to understand because it is perfectly clear that although there was a skeleton argument at page 4, all that appears is a summary of the Reasons for Refusal in which the Secretary of State was to say that the Appellant did not qualify for leave under the Immigration Rules, private and family life and did not qualify for leave outside the Rules but further down, under the heading, "Legal arguments" it is perfectly clear that there was no such concession at all.
4. Was there an error of law? I have no difficulty whatsoever in finding that there was an error of law and indeed neither party sought to persuade me otherwise. The question for me is whether the error is material; this is not a case in which the judge then simply disposed of the matter. This decision then runs to 41 paragraphs and even allowing for the last four (which are simply matters under the heading "Notice of Decision") there are findings of fact which were clearly open to the judge on the evidence; indeed it is clear that she actually did address statutory matters such as the exception at Section 117 of the Nationality, Immigration and Asylum Act 2002 and the best interests of the child.
5. At paragraph 12 of the Decision, Judge James looked to submissions made on behalf of the Appellant. She noted the antenatal tests but explained why she found the evidence on the point lacking. She noted that some of the evidence was indecipherable.
6. This was a case in which the Appellant had first asked for an oral hearing. It was not a case in which the judge merely went ahead to deal with the matter without giving the Appellant the opportunity to be heard. A formal request was made to the Tribunal for the matter to be dealt with on the papers and so the judge did the best she could on the available evidence.
7. There was an index in the bundle that said there was a witness statement to follow but there was no witness statement. The judge explained sufficiently in my judgment why the Appellant and her child failed to meet the criteria under the Immigration Rules regarding private and family life.
8. The judge made reference to appropriate guidance from the Upper Tribunal in coming to her decision and went on, quite properly, to consider that this appeal, having regard to the wider application of Article 8 directing herself to the guidance in the case of Razgar now trite law in this jurisdiction.
9. This was I find but for the strange reference to a concession, that was not made, a decision in which the judge clearly considered the evidence that was before her quite properly and made findings that were open to her. It does not seem to me that her apparent belief that a concession was made actually affected the decision that she made, that she made that decision based on the evidence. I was concerned that it might be argued that the fact of the judge believing a concession had been made infected the rest of the decision but it is perfectly clear to me, reading the decision as a whole, that that is not the case.
10. I was very grateful to Mr Miah for the submissions that he made and the realistic manner in which he made them but notwithstanding those submissions I find that the error of law is not material and if I am wrong about that, were I to remake the case on the basis of the findings made by the judge, I would have come to exactly the same view. In the circumstances the appeal is dismissed and the decision of the First-tier Tribunal is affirmed.

Notice of Decision

The appeal to the Upper Tribunal is dismissed.

Signed Date

Deputy Upper Tribunal Judge Zucker