Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11520/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 October 2016
On 27 October 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SB
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr P Armstrong, Senior Home Office Presenting Officer
For the Respondent: Mr A Miah, counsel instructed by Sony, Sadaf & Haroon Solicitors

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Abebrese, promulgated on 28 April 2016. Permission to appeal was granted by First-tier Tribunal Judge PJM Hollingworth on 16 September 2016.
Anonymity
2. No direction has been made previously and no application was made, however owing to the fact that the respondent is a victim of domestic violence, I consider it prudent to make such an order.
Background
3. On 22 March 2012, the respondent arrived in the Republic of Ireland with leave to remain until 5 May 2012 as a spouse. On 3 July 2013, she first entered the United Kingdom with leave to enter as a visitor until 30 January 2014. The respondent returned to the United Kingdom, from Dublin, on 15 September 2014 and was once more granted leave to enter as a visitor until 29 December 2014.
4. On 27 December 2014, the respondent applied to vary her leave to enter the United Kingdom. In a covering letter to that application, she explained that she was seeking leave to remain outside the Rules on an exceptional basis. In the application it was said that the respondent was divorced in Bangladesh and in 2011 underwent an arranged marriage with an Irish national. After the respondent's arrival in Ireland, her spouse subjected her to violence, leading her to complain to the Irish authorities. The respondent left Ireland to be reunited with her elderly father and adult siblings in the United Kingdom. She stated that she has no family remaining in Bangladesh.
5. The aforementioned application was refused on 6 March 2015. Essentially, the Secretary of State noted that none of the requirements of paragraph 276ADE (1) were met and noted discrepancies between the account the respondent gave when seeking entry to the United Kingdom as a visitor and the account she was now providing. It was not accepted that the respondent had provided any compelling or compassionate reasons why she should be granted leave to remain outside the Rules.
The hearing before the First-tier Tribunal
6. At the hearing before the First-tier Tribunal, the respondent and her brother, a Mr Rahman, gave evidence. The judge allowed the appeal under the Rules, concluding that there would be very significant obstacles to the respondent's integration into Bangladesh because she had no relatives there and all her family members resided in the United Kingdom.
The grounds of appeal
7. The sole ground of appeal in support of this application is that there was a failure to give adequate reasons or to consider material facts. It was submitted that the judge failed to provide adequate reasons which identified the obstacles the respondent would face on return to Bangladesh. It was noted that the respondent had spent the majority of her life in Bangladesh without the presence of her father, siblings and other relatives. That was said to be a material factor not considered by the judge.

8. Furthermore, while the judge had considered section 117B of the Nationality, Immigration and Asylum Act 2002 (as amended), he failed to apply and consider the various factors which were relevant in view of the respondent's precarious residence in the United Kingdom.
9. Permission to appeal was granted on the basis sought.
10. No Rule 24 response was received by the Tribunal.
The hearing
11. Mr Armstrong handed up the cases of Forman (s117A-C considerations) [2015] UKUT 00412 (IAC), Rajendran (s.117B - family life) [2016] UKUT 00138 (IAC) and Nasim and others (Article 8) [2014] UKUT 00025 (IAC). He relied on the grounds and explained that the judge had not said why the respondent could not go back to live in Bangladesh. Mr Armstrong submitted that the only reason given by the judge was that the respondent had no family there, however he asked me to note that the respondent only left Bangladesh in 2012 for Ireland and was a 41-year old adult. He argued that it was irrelevant whether or not she had family members in Bangladesh. With regard to the respondent's family members in the United Kingdom, there was nothing to indicate anything other than normal emotional ties between them and the respondent. In view of the authorities referred to above, Mr Armstrong submitted that the weight placed on the respondent's private life should be limited. He urged me to find that the judge made a material error of law.
12. Mr Miah argued that the judge's findings regarding very significant obstacles did not relate only to the respondent's lack of family in Bangladesh. At [17] the judge had noted that the respondent was "tortured mentally and physically" during her marriage in Ireland. This experience of domestic violence was relevant to the respondent's private life. Furthermore, the judge had reached findings that all the family members were now in the United Kingdom. Mr Miah submitted that the judge's findings, while concise, were sufficient and that he was entitled to arrive at them. With regard to the judge's treatment of the considerations in section 117B of the 2002 Act, Mr Miah said that the judge adopted his findings in the preceding paragraphs. In response to my query as to the link between the respondent's experience of domestic violence and very significant obstacles, Mr Miah accepted that the judge did not spell it out. Nonetheless, he drew my attention to the mention of domestic violence at [17] and at [11] to the mention of medical evidence from a general practitioner. Mr Miah confirmed that there was no psychological or psychiatric evidence before the judge.
13. In reply, Mr Armstrong argued that it was the Secretary of State's submission that the respondent, who left Bangladesh aged 37, was able to return. He argued that at the time the respondent left Bangladesh the majority of her family had left the country. He maintained that the judge gave inadequate reasons for finding very significant obstacles in that he did not explore the respondent's life in Bangladesh such as who she lived with, whether she worked or whether her family could support her on return or whether they did so before.
14. Mr Armstrong argued that the respondent's application had been made outside the Rules because she knew she could not satisfy paragraph 276ADE(1). There was no psychiatric evidence and nor was there any evidence of physical injuries when she was examined by a doctor. At this point Mr Miah confirmed that the respondent's case had been presented before the judge as one under the Rules.
Decision on error of law
15. At the conclusion of the hearing, I announced that the judge made a material error of law in giving inadequate reasons for his finding that there would be very significant obstacles to the respondent's integration in Bangladesh. My reasons are set out below.
16. At [17] of the decision and reasons, the judge accepted that the respondent had resided in Bangladesh for a "significant part" of her life, that all of her family were British citizens residing in this country and that her married life with her Irish husband had been a "living hell" owing to his violence. There is not, however, any analysis of these factors in relation to the respondent's ability to reintegrate in Bangladesh. Elsewhere in the same paragraph the judge states as follows, "I do find on the evidence that the (respondent) has no close ties in Bangladesh and that this would have an effect on her ability to integrate?" Firstly, the judge does not state what effect the absence of close ties would have on the respondent on the facts before him and secondly, the test is that of very significant obstacles rather than whether various factors would have an effect on an individual's ability to integrate.
17. As accepted by Mr Miah, the judge's reasons did not refer to any nexus between the domestic violence she suffered and the very significant obstacles to integration required to be shown under the Rules. It cannot be inferred that the respondent's experiences in Ireland rendered her unable to reintegrate into a country where she had lived for 37 years, including without the presence of close relatives. There was no expert evidence before the judge which indicated that she was vulnerable to the extent that she could not be expected to return to Bangladesh. The judge's findings amount to a list of facts he accepted, however there is little to no assessment of these facts in relation to the requirements of paragraph 276ADE(1)(vi) or a consideration of the claim outside the Rules.
18. It is unclear from the judge's decision whether or not he considered Article 8 outside the Rules. His mention in [18] of section 117B of the 2002 Act indicates that he may have done. If he did, his treatment of these provisions was inadequate in that there was no consideration of the respondent's precarious immigration status or any number of other relevant matters which Mr Armstrong highlighted during his submissions. The judge does not explain why he concludes that it is in the public interest for the respondent to be permitted to remain in the United Kingdom.
19. I accordingly set aside the judge's decision but preserved his findings of fact, which were not in dispute. Those facts being that the respondent was a victim of domestic violence when she was living in Ireland, that her family were residing in the United Kingdom and that there were no relatives living in Bangladesh. I considered retaining the matter in the Upper Tribunal for remaking, however Mr Miah advised me that medical evidence was in the process of being obtained. In these circumstances I decided that it was in the interests of justice to remit the matter to the First-tier Tribunal for fresh findings to be made as to whether the respondent met the requirements of paragraph 276ADE(1)(vi) of the Rules and whether her proposed removal to Bangladesh was or was not a disproportionate response.

Decision
The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, with findings of facts preserved, to the First-tier Tribunal to be reheard at Taylor House, with a time estimate of 2 hours by any judge except First-tier Tribunal Judge Abebrese.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Upper Tribunal Judge Kamara 27 October 2016