Tribunal decisions

The decision

Upper Tribunal Appeal Number
(Immigration and Asylum Chamber) IA/11687/2013

THE IMMIGRATION ACTS

Heard at Field House Determination promulgated
On 22 November 2013 On 28 November 2013

Before

Deputy Judge of the Upper Tribunal I. A. Lewis

Between

Secretary of State for the Home Department
Appellant
and

Mehar Nessa Khatoon
(Anonymity direction not made)
Respondent
Representation
For the Appellant: Ms. E. Martin, Home Office Presenting Officer.
For the Respondent: Mr. M. Hassan of Kalam Solicitors.

DETERMINATION: ERROR OF LAW

1. This is an appeal by the Secretary of State for the Home Department against the decision of First-tier Tribunal Judge Callender Smith promulgated on 16 September 2013, allowing Ms Khatoon's appeal against the Respondent's decision dated 22 March 2013 to refuse her leave to remain in the UK. (A further decision also dated 22 March 2013 to remove Ms Khatoon pursuant to section 47 of the Immigration, Asylum and Nationality Act 2006, appears to have been appropriately withdrawn by the Secretary of State at the hearing: no specific reference is made to this in the First-tier Tribunal Judge's determination, but so far as it is decipherable there appears to be a note to this effect on the record of proceedings on file.)

2. Although in the proceedings before me the Secretary of State is the appellant, and Ms Khatoon is the respondent, for the sake of consistency with the proceedings before the First-tier Tribunal I shall hereafter refer to Ms Khatoon as the Appellant and the Secretary of State as the Respondent.

Background

3. The Appellant is a national of Bangladesh born on 11 November 1950. She entered the UK with entry clearance as a visitor on 10 March 2012. On 29 June 2012 she applied for indefinite leave to remain as the dependent relative of her son Mr MD Fazal Karim. The application was refused for reasons set out in a 'reasons for refusal' letter dated 22 March 2013 and the Appellant was formally refused variation of leave to enter or remain by way of a Notice of Immigration Decision of the same date.

4. The Appellant appealed to the IAC. The First-tier Tribunal Judge allowed the Appellant's appeal for reasons set out in his determination.

5. The Respondent sought permission to appeal which was granted by First-tier Tribunal Judge Landes on 4 October 2013.

Error of Law

6. The Respondent's decision was taken primarily with reference to paragraph 317 of the Immigration Rules, in particular paragraphs 317(i)(d), (iii), and (v); the Respondent also had regard to paragraph A277B and Appendix FM of the Rules.

7. Paragraph 317(i)(d) makes it a requirement that an applicant who is a dependent parent under the age of 65 be "living alone outside the United Kingdom in the most exceptional compassionate circumstances". It is well established that when making an application under paragraph 317 from within the UK an applicant must demonstrate that she would meet the substantive requirements of paragraph 317 if she were still in her own country: see MB (para 317: in country applications) Bangladesh [2006] UKAIT 00091, and in particular at paragraph 9 - "The correct question is what the applicant's position would be if, instead of being in the United Kingdom, she were in her own country."

8. In the instant case, having set out primary findings at paragraphs 21-24 of the determination, the First-tier Tribunal Judge reaches the following conclusion in what appears to be the determinative paragraph in his determination, paragraph 26:

"The evidence I have considered is cogent and credible and I am satisfied, to the required standard, that there are the most exceptional compassionate circumstances that merit her been [sic.] permitted to remain in the United Kingdom with her eldest son, the sponsor, who provides for her needs and looks after her now."

9. In my judgement this does not represent a statement of the correct test to be derived from paragraph 317(i)(d). The test is not whether the current circumstances in the UK amount to exceptional compassionate circumstances that merit an applicant being allowed to remain. The test implicit in the formulation of words adopted by the Judge does not demonstrate an enquiry into whether the circumstances in Bangladesh, were the Appellant to be there, would amount to her living in the most exceptional compassionate circumstances.

10. Although at paragraph 27 the Judge asserts that the Appellant "falls within the provisions of Paragraph 317", in light of the foregoing I am not satisfied that in stating as much the Judge had had regard to the proper test under paragraph 317. Nor am I satisfied that the determination of the Judge in favour of the Appellant is, as it were, 'saved' by his perfunctory reference to Article 8 in the alternative at paragraph 28. Paragraph 28 does not demonstrate a full and proper consideration of Article 8 by reference to the Immigration Rules or the established jurisprudence that predated the incorporation of Appendix FM. Further in this context I agree with the observations of Judge Landes in granting permission to appeal to the effect that Judge Handley came to his decision on Article 8 "For the same reasons" (paragraph 27) as his decision under the Rules, and accordingly any error in his approach under the Rules would have 'infected' his consideration under Article 8.

11. Accordingly in all the circumstances I find that there was a material error of law in that the First-tier Tribunal Judge misdirected himself as to the requirements of the Immigration Rules, and did not otherwise undertake a full and proper assessment under Article 8.

12. In considering the future conduct of the appeal I have had regard to the following matters:

(i) The Respondent has raised issues of credibility by reference to the Appellant's alleged failure to declare her true circumstances prior to entering the UK, and in particular, having failed to inform the Respondent at the Entry Clearance Manager's review stage of the death of her husband. In this context there may also be an issue in respect of the number of her children who were said to be still living in Bangladesh when the Appellant made her application for entry clearance as a visitor.

(ii) The presence of the Appellant's younger son in the UK as a student only became apparent during the course of the hearing before the First-tier Tribunal. There has been no exploration as to the basis upon which he demonstrated an ability to meet the financial requirements of the Rules, which may be a matter relevant to the issues in the instant appeal.

(iii) The Appellant has claimed in her Grounds of Appeal to the First-tier Tribunal that "Prior to entering the UK [her] intentions were to simply visit and return". In the premises the fact of being a widow, and the fact of her pre-existing medical conditions had not been such as to deter her from intending to return to her home. The plea of a change of circumstances since arriving in the UK requires further exploration, possibly with the assistance of further supporting evidence.

(iv) There remains an issue in respect of paragraph 317(v). The Judge records in his determination the Appellant's evidence to the effect that her daughter had married somebody with a good job, who earned well; although the Appellant stated that her daughter "would not welcome her as part of their house" (determination at paragraph 14), there was no clear evidence or finding as to the availability, or non-availability, of financial support.

13. Given the nature of the issues that now require to be determined, and including the possibility that the Respondent may wish to cross-refer to the Appellant's sons student applications (as was indicated by Ms Martin), both parties agreed that the most appropriate and fairest option was for the appeal to be heard afresh before the First-tier Tribunal. In my judgement this is the most just approach.

14. Accordingly I conclude that the decision in the appeal requires to be remade after a full rehearing, with all issues at large, before the First-tier Tribunal.

Decision

15. The decision of the First-tier Tribunal Judge contained an error of law and is set aside. The decision in the appeal is to be remade by the First-tier Tribunal by any judge other than First-tier Tribunal Judge Callender Smith with all issues at large.

Consequent Directions

1. The appeal is to be heard at Taylor House on 28 February 2014 with a time estimate of 2 hours, before any judge other than First-tier Tribunal Judge Callender Smith.

2. In the event that the Respondent wishes to rely upon any further evidence, including in particular any evidence in relation to the Appellant's student son, and/or wishes to amend or supplement the reasons relied upon for denying the Appellant leave to remain in the UK, any such evidence, or further reasons, is to be filed and served within 14 days from the promulgation of this determination.

3. Any further evidence upon which the Appellant wishes to rely, must be filed and served at least 7 days prior to the next hearing..

4. An interpreter in Sylheti is required for the hearing.

Deputy Judge of the Upper Tribunal I. A. Lewis 22 November 2013