- Case title:
- Appellant name:
- Status of case: Unreported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-003381
First-tier Tribunal No: HU/55294/2021
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 28 April 2023
UPPER TRIBUNAL JUDGE LINDSLEY
(NO ANONYMITY ORDER MADE)
SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr M Biggs & Mr M West, of Counsel, instructed by Barclays Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer
Heard at Field House on 14 March 2023
DECISION AND REASONS
1. The appellant is a citizen of Bangladesh born on 2nd February 1952. She is therefore 71 years old. She arrived in the UK on 29th January 2020 as a visitor with six months leave to enter. She overstayed her leave, and then on 30th August 2020 made an application to remain in the UK under Appendix FM of the Immigration Rules with her son Mr Tanvir Ahmed. This application was refused on 2nd September 2021. The appellant’s Article 8 ECHR human rights appeal against the decision was dismissed by First-tier Tribunal Judge Richard Wood in a determination promulgated on the 23rd May 2022.
2. Permission to appeal was granted on the basis that it was arguable that the First-tier judge had erred in law in failing to take into account three statements filed for the appellant. A Presidential Panel decided, in an error of law decision of 7th February 2023, that the First-tier Tribunal had erred in law for the reasons set out in their decision, which I append as Annex A to this decision.
3. The Presidential Panel preserved findings of the First-tier Tribunal in relation to the circumstances of the appellant and her family in the UK, her medical condition and the impact of her medical condition on her ability to self-care and her requirement for support and assistance. The appeal comes to me for remaking pursuant to a transfer order.
4. The issue that I must remake factually is solely that of support for the appellant in Bangladesh, particularly with reference to the bundle of additional statements/letters from the appellants’ children in Bangladesh which were found to have been over-looked by the First-tier Tribunal. I must then, of course, go on to remake the appeal decision by applying the relevant Article 8 ECHR law in the context of the factual findings. Is it accepted for the appellant that the terms of the adult dependent Immigration Rules cannot be met. I must therefore determine the Article 8 ECHR appeal by reference to paragraph 276ADE(1)(vi) of the Immigration Rules and more broadly outside of the Rules.
5. The appellant asked for permission to admit a small bundle of further medical documents pursuant to Rule 15(2)A of the Upper Tribunal Procedure Rules 2008. I admitted the evidence as Mr Tufan did not object, although he submitted that the medical conditions they evidenced were essentially the same as had been accepted as existing before the First-tier Tribunal, and ultimately Mr Biggs accepted that this new evidence did not take the medical issues any further than the findings made by the First-tier Tribunal.
Evidence & Submissions - Remaking
6. The appellant attended the Upper Tribunal and gave her evidence through a Sylheti interpreter. She recalled her statement made on 24th December 2020 and that she had confirmed that the contents were true at that time, but she had no recollection of doing this with respect to the statement of 31st January 2022. As a result this later statement was not formally adopted before me. It had, however, been adopted before the First-tier Tribunal and as such formed part of the evidence to be considered in this appeal. In essence the appellant’s evidence with regards to the situation for her in Bangladesh is that her three adult children in Bangladesh cannot support her there. They are all married with children (including her son Jahed Hussain) and do not have funds. She has been separated from her husband, who has a family with another woman, since her youngest son Tanvir Ahmed was three months old, and he continues to live in the large village of Kamar Gow where she had lived prior to coming to the UK. She said that her estranged husband had taken back the house where she had lived since she left, although in the statements she says that she had lived in her own house in Kamar Gow. If she were to be returned to Bangladesh her evidence was that she would live alone and just receive funds from her UK based children. She said that her son Jahed Hussain lived in Kamar Gow in a separate house from the one she had occupied. She gave evidence that she had come to the UK because those in Bangladesh could not support her, and so she wanted to live with her UK based children.
7. Mr Tanvir Ahmed also attended the Upper Tribunal and gave evidence in support of his statement of 31st January 2022. His evidence in short summary is as follows. He is the appellant’s youngest son and was born on 7th December 1993. He emphasised the strong loving relationship he and his family have with the appellant, as do the other UK relatives, her brother and and his eldest brother and their families. They want to support the appellant in her day to day life, and believe it would be a great shock for her to have to live away from them in Bangladesh. With respect to the situation for the appellant in Bangladesh his evidence was that none of his siblings in Bangladesh had funds to support the appellant as they were all to some extent reliant themselves on those in the UK for financial support. They were unemployed and had their own families. His evidence was that his brother Jahed Hussain was unemployed and lived in Sylhet town, and the village Kamar Gow address on the entry clearance form for him was Jahed Hussain’s permanent address rather than his current place of residence. He did not know why the appellant said he lived in the village or why he would live in Sylhet town if he was unemployed and had a house in Kamar Gow. It was about 2 hours by car from Sylhet town for Kamar Gow. He did not know if Jahed Hussain had been an established businessman in 2109 when the entry clearance application was made, as is stated on the application form. One of Mr Ahmed’s sisters lives in the same sub-district as Kamar Gow in another village about an hour by road away. He could not answer the question as to whether the appellant had lived with Jahed Hussain prior to coming to the UK. He said that Jahed Hussain had no children, and that the appellant could not live with him on return to Bangladesh. He accepted that money could be sent for the appellant in Bangladesh, but he was concerned about other things such as living standards, conditions and surroundings for the appellant in Bangladesh. With respect to employing help in Bangladesh he felt that it would be hard for him and his UK relatives to ensure that they employed an honest and appropriate person.
8. Mr Asad Miah provided a statement to the Tribunal which states in short summary that he is the appellant’s brother, that he lives in the UK and says that in the UK the appellant is given a lot of day to day care and assistance from himself, his wife, her sons and their families, and that if she has to go back to Bangladesh she will be lonely and feel helpless even if the UK relatives provide her with money.
9. Mr Mohammed Ali is the appellant’s oldest son and lives in the UK. He provided a statement to the Tribunal in which, in short summary, he reiterates that it would be a grave shock not to be able to care for the appellant in the UK, and that in Bangladesh she will live alone in a village away from her other relatives who live in Sylhet city.
10. Mr Jahed Hussain, the appellant’s son who is resident in Bangladesh, writes in a letter dated 28th April 2022 to explain that he is not able to assist the appellant, his “beloved mother”, because of an issue between his wife and his mother, who did not get on well with the result that his brothers took their mother to visit them in the UK. He says that he also has no funds to support her being in low paid employment as an Imam in the local mosque. He gives his address as Kamar Gow village.
11. Mrs Nazu Begum writes a letter dated 1st May 2022 to confirm that she is not able to care for her mother, the appellant, as she lives with her husband, children and husband’s extended family and she feels that she cannot meet her health needs in these circumstances. She sets out her address as Pathantula, Jalalabad, Sylhet.
12. Mrs Misba Begum writes a letter dated 5th May 2022 stating, in summary, that she is married and lives with her husband and children and she cannot support her mother, the appellant, financially as her husband does not earn well and they are helped by her brother with finances. She gives her address as Kakura village, which is in the same subdistrict of Chhatak, in the main district of Sunamganj, as Kamar Gow.
13. Mr Tufan submitted for the respondent, in short summary as follows. He submitted that there were a number of credibility issues with the evidence as it had multiple inconsistencies. The appellant had said today before us that her estranged husband had taken her house in the village of Kamar Gow, but previously in her statements and entry clearance form she had said that she owned it. The appellant had said that her son in Bangladesh (Jahed Hussain) had children and lived in the village of Kamar Gow (which was consistent with the address given for him on the application form and his letter of 28th April 2022), whereas the other witnesses (her youngest son based in the UK), Mr Tanvir Ahmed, had said that he lived in Sylhet town and had no children. In the entry clearance application Mr Jahed Hussain was said to be a successful businessman, in his own letter of 28th April 2022 he was an imam on a small income, and according to Mr Tanvir Ahmed he was unemployed. In her statements the appellant said that she had not returned to Bangladesh at the end of her visit because of the Covid-19 pandemic but today in evidence the appellant had said she had come to the UK intending to stay permanently with her UK based children (her precise words, it was agreed with Mr Biggs, were “I came in this country to stay”).
14. Mr Tufan submitted that there were no very significant obstacles to integration for the appellant should she return to Bangladesh, and thus she was not able to succeed in her appeal by reference to the private life Immigration Rules at paragraph 276ADE(1)(vi). She had a house in her village of Kamar Gow, and even if it was currently being used by her estranged husband she could get access to that house if she went back to Bangladesh. Her medical conditions were not sufficiently serious to mean she could not integrate. She has a son who lives in the same village, and a daughter who lives in the same sub-district who could keep an eye on her. There was no evidence she could not access appropriate medical treatment, and indeed there was evidence that she had done this previously when living in Bangladesh.
15. When looking at the Article 8 ECHR appeal outside of the Immigration Rules Mr Tufan submitted that significant weight must be given to the public interest in removing the appellant as someone who cannot meet the Immigration Rules for adult dependent relatives or the private life Immigration Rules. In the end the desire of the appellant and her UK based children for the appellant to remain with them because they feel that this would be better is not sufficient to outweigh this public interest given that the appellant has family, property and can access medical treatment in Bangladesh.
16. Mr Biggs submitted, in short summary, as follows. I must start from the finding of the First-tier Tribunal that the appellant would be living on her own if returned to Bangladesh, as this was a preserved finding from the First-tier Tribunal made at paragraph 44 of the decision. He accepted that it was open to me when considering all of the evidence to find that her son, Jahed Hussain, would be living in the village of Kamar Gow but in a separate house from his mother based on his letter of 28th April 2022, and that the appellant had access to a property in that village as even if her estranged husband was currently using it she may still own it, and to find that she would have financial support from her relatives in the UK.
17. Mr Biggs argued however that the appellant would have very significant obstacles to integration because she would be an elderly woman living alone with medical conditions (she is in her 70s with a number of chronic medical conditions) with limited support from other family in Bangladesh. He drew may attention to the CPIN Bangladesh: Women Fearing Gender Based Violence, June 2020 Version 3 particular at page 22 onwards. He argued that paid help would not be sufficient as it would not provide the emotional support that her UK based family would provide for her.
18. Mr Biggs argued that if the Article 8 ECHR appeal were looked at more broadly the appellant’s removal would also be disproportionate given that she had been legally been able to make the application to remain due to the Covid-19 pandemic concession; he argued that I should not give significant weight to the fact that the appellant had before me said she had entered the UK intending to stay as it was possible that was simply her current desires colouring her recollection of what she intended when she entered; the appellant was a elderly person with medical needs; if allowed to remain in the UK she could support herself financially as she would be supported by her UK family; and the situation in Bangladesh was difficult with limited family support.
Conclusions - Remaking
19. The preserved factual findings from the First-tier Tribunal Judge are as follows:
The appellant suffers from stage 3 chronic kidney disease which causes high blood pressure, sleep problems, back pain and swollen feet and some modest mobility issues and is prescribed painkillers and has been (until August 2021) prescribed sleeping tablets.
The appellant has no cognitive impairments and has no significant mental health problems.
The appellant is able to look after herself and perform everyday tasks, does not have any significant impairment and can live independently.
The appellant is familiar with the language and culture of Bangladesh having lived there all of her life and has a large proportion of her family living there.
The appellant has a family life relationship with her two sons in the UK with whom she has a loving relationship, she lives with her sponsor (her youngest son) and is financially supported by them.
That the appellant had been living alone for at least a few months in Bangladesh before coming to the UK, possibly following a falling out with her daughter-in-law, and came to this country for a visit to see her UK based children and the application to remain longer happened as a result of the Covid-19 pandemic and not due to any particular medical need.
20. Focusing on the position that the appellant would find herself in if returned to Bangladesh I find, as these facts are not contested by either party and are supported by evidence, that the appellant has her own home in the large village of Kamar Gow, a village where her married son, Mr Jahed Hussain, also lives in another house, and that her UK family would be able to provide her with sufficient financial support. I also find that the appellant is entirely familiar with the culture, customs, religion and language used in this village in Bangladesh where she has lived for the vast majority of her life (66 years in 2019 according to her entry clearance application form). It was not argued otherwise before me. It was not argued by Mr Biggs that the appellant would not be able to obtain any necessary medical treatment or medications she needs for her chronic health conditions so I find that she would also be able to do this.
21. Mr Biggs argued that the appellant would have very significant obstacles to integration because she would be an elderly lady living alone and that this was of itself unacceptable due to the social structures of Bangladesh. The first problem with argument is that there was no evidence before me that the appellant would have to live alone. Whilst she does not need to have a home help or carer, as she has been found to be able to live independently in the preserved findings, I appreciate that at the age of 71 she might not wish to live alone for social or other reasons such as making her life more comfortable or so she would feel less vulnerable. It is accepted for the appellant that her son, Jahed Hussain, lives in the same village. I accept his evidence, as set out in his letter of April 2022, that he works as an imam in the village, as this is the most direct and up-to-date evidence on his work life. The witness, Mr Tanvir Ahmed, did not appear to have even basic information about his brother, he was not aware that he had children for instance, and so I discount Mr Ahmed’s evidence that he was unemployed and living in Sylhet town particularly as there would seem to be no reason why he would do this if he was unemployed and had a house in the village which he could occupy for free. Mr Jahed Hussain clearly loves his mother (he refers to her in his letter to her as “my beloved mother”) and does not say he is not willing to provide her with regular social support by way of visits and other help around the house – he simply says his mother and wife do not get along, which I find means that they cannot live happily in the same house. I find that Mr Jahed Hussain would clearly be in a good position to find a reliable home help/companion for the appellant due to his respected position as an imam in the village, and would be able to regularly check that this person was not abusing their position. As the UK children are accepted as being able to support the appellant financially, whether she is in the UK or Bangladesh, I find that there is no obstacle based on the appellant not being able to integrate back into her old life due to her having to live alone because I find that this is not the case and that a reliable live in or daily visiting home help/ companion could be found were the appellant to return to Bangladesh.
22. I have read the CPIN Bangladesh: Women Fearing Gender Based Violence June 2020 Version 3 as Mr Biggs drew my attention to this document and contended that it was evidence that it was not possible to live in Bangladesh without male support. Indeed at paragraph 4.7.1 it does state that in the opinion of a national human rights organisation: “To live without male support is almost impossible.” However, I find that the appellant is not in the same position as the vulnerable Bangladeshi women who are envisaged as being at risk in this document. She is not a single woman trying to rent a property or work, she has a secure home and financial support from her children. The appellant may also have the social protection of continuing to be a married woman, even if her husband in fact abandoned her several decades ago, however, in any case I find that she is definitely not without male support due to her having her son Mr Jahed Hussain, living in the same village and being able to arrange care and be part of her regular support network, and this is particularly the case as he is a man with the social/religious status of being the, or a, village imam. As a result, I find, that this country-of-origin evidence does not support a finding that the appellant would have very significant obstacles to integration on return to Bangladesh, and I find on the totality of the evidence she would not have any such problems and cannot succeed in the appeal by reference to the Immigration Rules at paragraph 276ADE(1)(vi).
23. This brings me to assess more broadly whether the appellant’s return to Bangladesh would be a disproportionate interference with her Article 8 ECHR rights. It is accepted that the appellant has family life relationships with her UK sons, brother and their families, and so I find that her removal to Bangladesh would be an interference that family life. The removal would be in accordance with the law. The question that remains is whether it would be a proportionate interference with her right to respect for family life.
24. In the appellant’s favour is the fact that she is elderly, has no partner, and has strong family life ties particularly with her youngest son in the UK and his family having lived together with them for the past three years, and has some vulnerabilities having a number of chronic health conditions and being 71 years old. I accept that she comes from a culture where living wither your children as you age is the norm. She and all her children believe that it is safest, in terms of her current and future aging and health, and best for the appellant to live with them in the UK and thus it is what they want for the appellant. I do not find that it adds weight in her favour that she was able lawfully to make an application to remain due to the Covid-19 pandemic. It is a neutral matter that she is financially independent, in the sense that she will be adequately financially support in the UK by her UK sons if allowed to remain.
25. Against the appellant is that she is unable to show compliance with either the elderly dependent relative (family life) or private life Immigration Rules and so there is a significant public interest in her removal as a person who cannot show compliance with the Immigration Rules the UK parliament has passed designating who should be allowed to remain on Article 8 ECHR grounds. Further, if returned to Bangladesh, I find that that she will have: family support, particularly from her son, Mr Jahed Hussain, who lives in the same village as the appellant; financial support which can properly extend to paying for a home help or companion arranged by Mr Hussain paid for by the UK based family; the home in which she has lived for her entire life bar the time she has spent in the UK since 2020 and on previous visits; there is no evidence that she cannot access adequate medical help for her medical conditions; and the ability to establish a private life given her life-long cultural, linguistic, religious and social ties to her home village.
26. When I balanced these matters I find that it is not a disproportionate interference with the appellant’s right to respect for family and private life as protected by Article 8 ECHR to require her leave the UK particularly as weight must be given to the fact she cannot meet the requirements of the Immigration Rules and will have adequate health care, and the opportunity and ability to re-establish private and family life ties in Bangladesh.
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. The Presidential Panel set aside the decision of the First-tier Tribunal dismissing the appeal but preserved some factual findings as set out above.
3. I re-make the decision in the appeal by dismissing it on Article 8 ECHR human rights grounds.
Judge of the Upper Tribunal
Immigration and Asylum Chamber
15th March 2023
Annex A: Error of Law Decision
(1) The effect of paragraph 6 of the Practice Direction and paragraph 7 of the Practice Statement is that where, following the grant of permission to appeal, the Upper Tribunal concludes that there has been an error of law then the general principle is that the case will be retained within the Upper Tribunal for the remaking of the decision.
(2) The exceptions to this general principle set out in paragraph 7(2)(a) and (b) requires the careful consideration of the nature of the error of law and in particular whether the party has been deprived of a fair hearing or other opportunity for their case to be put, or whether the nature and extent of any necessary fact finding, requires the matter to be remitted to the First-tier Tribunal.
(3) Applying AEB v Secretary of State for the Home Department  EWCA Civ 1512, in considering the question of whether the appeal should be retained or remitted it will be material to take account of the loss of the two-tier decision making process if the decision is retained. Not every finding of an error of law concerning unfairness will require the appeal to be remitted: the nature of the unfairness and the extent of its impact on the findings made overall will need to be evaluated as part of the decision as to whether the general principle should be departed from.
DECISION AND REASONS
1. The Appellant is a national of Bangladesh who was born on 2nd February 1952. She entered the UK on a visit visa on 29th January 2020 with leave to remain for six months. She did not return to Bangladesh and remained with her family in the UK, becoming an overstayer on 29th July 2020. On 30th August 2020 she made an application to remain in the UK on the basis that she qualified under Appendix FM of the Immigration Rules (“IR”). This was refused as it was concluded that she did not meet the requirements of IR paragraphs E-ECDR.2.2-2.5. The Appellant appealed against this refusal to the First-tier Tribunal (Immigration and Asylum Chamber) (“FtT”), and the appeal was heard on 23rd May 2022. At the appeal, which was a hybrid hearing, the judge was provided with what he described as a “stitched bundle” of documents and a skeleton argument from the Appellant. Whilst the judge did not specifically record receiving them, it is common ground in this appeal that the judge was emailed three letters from relatives of the Appellant, which are considered below. The judge indicated that he had “considered all of the documentation presented to me when arriving at my decision, even if a document is not specifically referred to in the written decision itself” (see ).
2. In his determination the judge noted that the emphasis of the Appellant’s case had evolved into principally a reliance upon Article 8 and its application outside the IR, it being accepted that there were difficulties in the Appellant satisfying the requirements of paragraphs E-ECDR 2.2 and 2.3. The judge concluded that, nonetheless he would need to make findings in relation to the matters addressed in paragraphs E-ECDR 2.4 or 2.5, as these questions and findings could be relevant to the consideration of whether any refusal under article 8 outside the IR would be proportionate. These paragraphs of the IR provide as follows:
“E-EDCR.2.4. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must as a result of age, illness or disability require long-term care to perform everyday tasks.
E-EDCR.2.5. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because –
(a) it is not available and there is no person in that country who can reasonably provide it; or
(b) it is not affordable.”
3. At the hearing the judge heard evidence from the Appellant and two of her sons. He also received some medical evidence relating to the Appellant’s clinical history and current condition. Having assessed this material the judge concluded that the suggestion made by the Appellant that she could no longer look after herself was not supported by the available evidence, and therefore she did not satisfy paragraph E-ECDR 2.4 of the IR. The judge then went on to consider paragraph 276ADE(1)(vi) of the IR, but again he was not satisfied that these provisions were satisfied and that there were obstacles to the integration of the Appellant upon return to Bangladesh. The judge observed:
“Mr West did not spend much time on this issue, preferring to concentrate on article 8 rights outside of the rules. I think his approach was realistic. I could see no adequate basis for arguing that this lady would be an outsider upon her return to Bangladesh. She had lived there all of her life. She was familiar with the language and culture of the country and had been absent only since early 2020. She has a very large proportion of her family still living there. I did not accept that her children and their families who are present in Bangladesh are in any way disinterested in the appellant. Beyond an argument with a sister-in-law, which may have taken place 5-10 years ago, there has been no explanation as to why her family there should not be supportive and attentive. I had little doubt that she would receive both financial and emotional support upon return, whether from her family there and/or in the UK.
49. Neither do I believe that the appellant’s health is in any way an obstacle to her returning to Bangladesh. As I have found above, what health conditions she has do not constitute a significant impairment for the purposes of looking after herself on a day-to-day basis. On the limited medical evidence I was presented, it seemed that her health at the time of the hearing, was broadly the same as it had been when she came to the UK. She had been able to care for herself in 2019/20. There was very limited support for any deterioration in any of her conditions between coming to the UK, and the hearing. There was nothing to support the proposition that she had gone from a woman who could care for herself, to someone who needed 24/7 support.”
4. The observation in relation to the argument with the appellant’s sister-in-law refers to the contents of a letter to which the judge alludes in  of his determination as follows:
“Mr Ahmed [the appellant’s son] was referred to a letter from Mr Hussain dated 28th April 2022, which was emailed to me by Mr Banham. In it, he seemed to suggest that the appellant had come to the UK motivated largely by a falling out with Mr Hussain’s wife, with whom she had been living at the time. Mr Ahmed said this was an error of translation. He said the argument had occurred roughly about 10 years ago.”
5. The agreed position at the hearing was that the letter referred to was one of three letters which had been emailed by both Mr West, who appeared for the appellant at the hearing, and also Mr Banham, who appeared for the Respondent before the FtT. In addition to the letter from Mr Hussain (in which he also explained that he would not be able to support his mother because as an Imam he only earned just sufficient to support himself), there were two further letters from the Appellant’s daughters explaining that they were impecunious and would not be able to support their mother were she to be returned to Bangladesh. This material was relied upon by the Appellant to support the submission that it would not be proportionate for the Appellant to be removed to Bangladesh. The judge’s conclusions in that regard were set out as follows:
“However, as I have found above, there is no medical need for her to remain in the UK. This part of the application finds little support in the evidence. I find that the appellant and her family have exaggerated her medical conditions in an attempt to strengthen the application. However, the medical evidence provides only the most limited support for any care issues. I have found that she is able to live independently. I accept that there may be some challenges in the light of her age. However, there are many 69-year-olds who can care for themselves on a day-to-day basis. This is not one of these cases where the mere fact of the appellant’s age is evidence of a need for care. Moreover, the appellant has many members of her family who remain in Bangladesh who would be prepared to provide either financial and/or practical support if needed. I have found that the appellant was caring for herself when she was last in Bangladesh, so their preparedness to support the appellant in this regard has not been tested. I have seen insufficient evidence that they cannot support the first appellant as and when necessary. It is difficult to understand why the circumstances pleaded on the appellant’s behalf should require her to be cared for specifically by her family in the UK rather than in Bangladesh.”
6. The submission of the Appellant is that the failure of the judge to identify the receipt and consideration of the letters, other than the passing reference to the letter of Mr Hussain in , supports the conclusion that the judge simply failed to have regard to the material parts of this key correspondence. This conclusion is materially reinforced by the contents of  in which the judge asserts that he had “no doubt that she would receive both financial and emotional support upon return whether from her family there and/or in the UK” and  where he asserted that “the appellant has many members of her family who remain in Bangladesh who would be prepared to provide either financial and/or practical support if needed.” These observations and conclusions are in such stark contrast to the content of the letters on the topic of her children’s unwillingness to support her upon return demonstrates the failure to have regard to the correspondence which was provided at the time of the hearing.
7. These submissions found favour with the FtT judge who considered the application for permission to appeal in this case. He granted permission on this ground and went on to observe that he considered that it might be of value for the Upper Tribunal to give guidance in relation to documents which were lodged and relied upon after the preparation of the “stitched”, by which is meant the hearing, bundle. The response filed by the Respondent pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008, akin to the skeleton argument filed by the Respondent for the purposes of the hearing, conceded that there was an error of law on the part of the judge. At the hearing it was clarified on behalf of the Respondent that the nature of the conceded error of law was a failure to have regard to a material consideration, namely the correspondence, in making the decision to refuse the appeal. The appellant contended that in addition to this species of error of law, there was also an error of law arising from an error of fact, in the form of the mistake that the judge made as to the existence of the correspondence. The appellant contends that this additional way in which the error of law could be characterised has ramifications which are addressed below.
8. The concession of the appeal in this case by the Respondent has given us considerable pause for thought. The judge refers in terms to one of the pieces of correspondence when setting out the evidence in the appeal in , so there is at the very least some evidence that this letter was received and taken into account. We accept, however, that the conclusions in  and  are in very sharp and surprising contrast with the material in the letters which makes clear that her children would not be able or prepared to support the Appellant were she to be returned to Bangladesh. We have borne in mind that the Respondent will no doubt have carefully reflected upon whether there are reasonable prospects of resisting the appeal prior to making the concession which has been made. Not without a little hesitation, and on balance, we accept that there has been an error of law by the judge in relation to the correspondence. The question which therefore arises as to whether this matter should be remitted to the FtT for redetermination, or whether it should be retained and remade in the Upper Tribunal (Immigration and Asylum Chamber) (“UTIAC”). Whilst both parties at the hearing suggested that remittal was the most appropriate result, for the following reasons we disagree: this case should remain with the Upper Tribunal for remaking.
9. We do not propose to give guidance in relation to the issue of documentation received after the FtT has prepared the hearing bundle. Suffice to say that in our view the issue can be perfectly well addressed conventionally by the use of directions and the discipline of ensuring that any additional late documentation is specifically recorded as having been taken into account in the terms of the determination reporting the FtT Judge’s decision.
10. The powers of the UT on an appeal from the FtT are set out in section 12 of the Tribunals Courts and Enforcement Act 2000. This section empowers the UT to set aside the decision of the FtT if it has involved the making of an error on a point of law and provides by way of section 12(2)(b) that in such an event the UT must either admit the case to the FtT with directions for its reconsideration or remake the decision. In remaking the decision, the UT may make any decision which would have been open to the FtT were it remaking the decision and may make such findings of fact as it considers appropriate.
11. In order to guide the exercise of this discretion there are Practice Directions and Practice Statements. These were fully set out in the recent decision of the Court of Appeal in the case of AEB v Secretary of State for the Home Department  EWCA Civ 1512 at  and  as follows.
“6. Part 3 of the current Practice Directions deals with the procedure to be followed on an appeal to the UT. Paragraph 3.1 provides:
Where permission to appeal to the Upper Tribunal has been granted, then, unless and to the extent that they are directed otherwise, for the purposes of preparing for a hearing in the Upper Tribunal the parties should assume that:
(a) the Upper Tribunal will decide whether the making of the decision of the First-tier Tribunal involved the making of an error on a point of law, such that the decision should be set aside under section 12(2)(a) of the 2007 Act;
(b) except as specified in Practice Statement 7.2 (disposal of appeals by Upper Tribunal), the Upper Tribunal will proceed to re-make the decision under section 12(2)(b)(ii), if satisfied that the original decision should be set aside; and
(c) in that event, the Upper Tribunal will consider whether to remake the decision by reference to the First-tier Tribunal’s findings of fact and any new documentary evidence submitted under UT rule 15(2A) which it is reasonably practicable to adduce for consideration at that hearing.
7. Paragraph 7 of the current Practice Statements provides:
Disposal of appeals in Upper Tribunal
7.1 Where under section 12(1) of the 2007 Act (proceedings on appeal to the Upper Tribunal) the Upper Tribunal finds that the making of the decision concerned involved the making of an error on a point of law, the Upper Tribunal may set aside the decision and, if it does so, must either remit the case to the First-tier Tribunal under section 12(2)(b)(i) or proceed (in accordance with relevant Practice Directions) to re-make the decision under section 12(2)(b)(ii).
7.2 The Upper Tribunal is likely on each such occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:-
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
7.3 Remaking rather than remitting will nevertheless constitute the normal approach to determining appeals where an error of law is found, even if some further fact finding is necessary.”
12. The circumstances of the case of AEB were as follows. Before the FtT an application to adjourn the proceedings was refused. The application was based upon the need for expert evidence from an independent social worker in respect of the impact on the Appellant’s children of his separation from them and the impact of his removal upon their best interests. In the UT it was held that this decision was procedurally unfair, firstly in circumstances where the consequences of the separation of the Appellant from his children was central to the determination of the appeal and the evidence would have been readily available and, secondly, because of the implication of the refusal of the adjournment that there was no subsisting paternal parental relationship between the Appellant and his children. The UT Judge decided to retain the remaking of the decision in the UT and proceeded to make a determination of the appeal. Before the Court of Appeal, it was accepted that the UT Judge’s decision was in error in its application of paragraph 7.2 of the Practice Statement by failing to have regard to paragraph 7.2(a) of the Practice Statement and, on the basis that he was departing from it, it was incumbent on the judge to provide reasons for his approach. The absence of reasons led to the concession that the judge had erred by failing to consider paragraph 7.2(a) and by solely referring to paragraph 7.2(b) when the UT Judge concluded “that it was appropriate to retain remaking in the [UT], given the narrowness of the scope of the issues as they had developed since the respondent’s initial refusal”.
13. Whilst the Respondent sought to uphold the decision on the basis that the loss of the normal two-tier approach to decision making was insufficient to require the remittal of the case Stuart-Smith LJ was unwilling to accept that proposition. He concluded as follows:
“47. It seems to me to be illogical and wrong to accept the rationale for the exception in paragraph 7.2(a) as expressed in MM (unfairness) Sudan and yet to assert that the loss of an uncontaminated two-tier decision-making process (with the possibility of a second appeal thereafter) is not a material consequence of the UT’s failure to remit. If, which I do not accept, there is a tension between what was said in JD (Congo) and in MM (unfairness) Sudan, that tension should be resolved in favour of ensuring that parties in general, and AEB in particular, should have had and should now have a two-tier process that is fair throughout. That, in my judgment, is the very purpose that lies behind paragraph 7.2(a). It does not mean that all cases where the hearing before the FtT have been unfair will necessarily fall to be remitted: but reasons for not doing so must be both cogent and expressed. Here there are none.
48. Put slightly differently, the admitted error by the UT has deprived AEB of (a) a fair hearing before the FtT; (b) the first appeal “standard” error of law test in respect of the range of factual findings and evaluative judgments which would have been made by the FtT; and (c) the opportunity to appeal against an adverse finding on a point of law which does not have to meet the second appeal test. Since the point of the paragraph 7.2(a) exception is to avoid those consequences, all of which flow from the unfairness of the original FtT hearing, these are losses that are substantial and which render the UT’s error material.”
14. Stuart-Smith LJ went on to conclude that the respondent was correct to concede that had the Upper Tribunal Judge addressed the issues properly it may have been that the case would have been remitted to the FtT.
15. In the present case, as set out above, it is submitted on behalf of the Appellant that the error of law can be characterised in two ways. Firstly, as conceded by the Respondent, it can be characterised as the failure to have regard to material considerations, namely the contents of the letters which bore upon one of the matters which the Judge had to consider, namely the question of whether the Appellant would be able to be supported upon return to Bangladesh. The Appellant contends that the same error of law can also be characterised as a material mistake of fact.
16. The jurisdiction in relation to material errors of fact was established in the case of E v Secretary of State for the Home Department  EWCA Civ 49 in which at paragraph 66 Carnwath LJ (as he then was) recognised that mistake of fact was capable of giving rise to a separate head of challenge in an appeal on a point of law. He expressed his conclusions as follows:
“66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal’s reasoning.”
17. The Appellant submits, correctly, that the jurisdiction arising in relation to a mistake of fact is a species of unfairness. Further, the Appellant submits that in the present case there was a mistake of fact arising on behalf of the FtT Judge in relation to the existence of the letters left out of account in his consideration of the issue relating to proportionality and the aspect of that assessment related to whether or not the Appellant would have support upon return to Bangladesh. There was a mistake as to the availability of evidence on that matter and it is uncontentious that the letters were made available to the judge. Since the Appellant’s representative was, along with the Respondent’s representative, involved in the provision of the letters, they cannot be held responsible for the judge’s mistake, and that material would have played a part in the judge’s assessment.
18. The Appellant also draws attention to the decision of the Upper Tribunal in MM (Unfairness; ER) Sudan  UKUT 00105 (IAC). This case concerned a claim for asylum based upon the Appellant’s religious convictions as a Coptic Christian which had led to her being arrested and detained on account of her inappropriate clothing and thereafter her rape by police officers. Her claim was that she had been arbitrally arrested on other occasions and indeed that the same police officers had attempted to rape her after detaining her some years after the first incident of rape. Her claim to asylum was rejected by the Secretary of State on the basis that it was unworthy of belief. The findings adverse to her credibility were based upon specific inconsistencies and discrepancies in her account. Further, it was suggested that it was not the Sudanese authorities but rogue officials who were in truth the cause of her fear and that she could in any event avoid them by relocating to another part of that country. After she had been interviewed by the Secretary of State’s officials her solicitors wrote to them reporting the Appellant’s complaints about the accuracy of the interpretation during the interview, and submitted no less than 21 clarifications of her answers including clarifications related to her answers in respect of the Christian faith. The Secretary of State did not reply to the solicitor’s letter prior to reaching a decision on the asylum claim, nor was a copy of that letter provided in the evidence of either party appearing before the FtT.
19. The case turned exclusively upon the credibility of the Appellant. In her evidence before the FtT the Appellant explained that the interview record was wrong, and she was then challenged as to why neither she nor her solicitors had contacted the Secretary of State’s officials to inform them that the record was wrong, and she pointed out that she had discussed this with her solicitor who said that a letter would be sent to the Home Office pointing out the mistake. The Judge concluded that the fact that the Appellant’s solicitors did not write to the Home Office pointing out the error in the interview record damaged her credibility. The FtT Judge found the claimant to be lacking in credibility and dismissed the appeal.
20. In reaching its decision the UT based its conclusion that there was an error of law in the FtT decision on firstly, the principles of procedural fairness generally, and secondly, the species of unfairness based upon a material error of fact, in this case the mistake of fact being the erroneous belief that the Appellant had not provided instructions to her solicitor in relation to the inaccuracies in the interview record and no letter had been written as a result of those instructions to the Home Office. This was a material error of law and the UT observed that there was “a fairly strong general rule, where a first instance decision is set aside on the basis of an error of law involving the deprivation of the appellants right to a fair hearing the appropriate course will be to remit to a new constituted First Tier Tribunal for a fresh hearing”. In the final decision the UT set aside the decision of the FtT and remitted it to the FtT with no findings of fact preserved, no doubt because since credibility was at the heart of that appeal none of the findings of fact could properly stand.
21. The question which arises in light of the conclusion that there has been an error of law in the present case is the proper application of the Practice Directions and, in particular, paragraph 7 of the Practice Statement in relation to disposal of appeals in the UT. It is submitted on behalf of the Appellant that this is a case to which paragraph 7.2(a) applies as an exception to the likely remaking of the decision in the UT contemplated by paragraph 7.2. It is submitted that because one way of describing the error of law is a species of fairness paragraph 7.2(a) applies and therefore the matter should be remitted to the FtT. As was accepted during the course of argument by Mr Biggs, paragraph 7.2 (a) is not an absolute rule in the sense that all cases involving some species of unfairness must be remitted to the FtT. That concession is consistent with the conclusions of Stuart-Smith LJ in  of AEB. However, as he points out, if a case in which unfairness has been found is not to be remitted there must be reasons for doing so in order to enable an understanding of how the provisions of 7.2 have been applied.
22. We have concluded that this case should follow the general procedure and be remade in the UT and not treated as an exception under paragraph 7.2(a) or (b). Firstly, whilst we accept one way of characterising the error of law in this case is to describe it as an error of fact it is equally, if not more, apposite to describe it as a failure to have regard to a material consideration, namely the letters, when that consideration was so obviously material that it ought to have been part of the FTT decision. This is a case, therefore, where the error of law is effectively a hybrid, and the error of law can be equally described at least equally as a breach of Wednesbury principals as much as a mistake of fact on the particular circumstances of the case before us.
23. Secondly, in exercising the discretion and applying paragraph 7.2 it is appropriate in this case to consider the extent to which the hearing before the FtT was affected by unfairness of the kind which has been conceded. This is not a case like MM where the unfairness was wholly dispositive of the issues in the appeal to the extent that the hearing before the FtT was of no value to the parties at all. The fact of the overlooking of the letters by the Judge solely impacted on a discreet strand of the proportionality assessment undertaken by the Judge; other strands of that proportionality assessment were fairly and effectively considered and resolved by him. This consideration bears upon both paragraph 7.2(a) and paragraph 7.2(b). No complaint is made, nor could it be made, in relation to the Judge’s assessment of the evidence in relation to the circumstances of the Appellant in the UK, her current medical condition, and the impact of her medical condition upon her ability to care for herself and her requirement for support and attendance. Those findings were soundly made and would stand in any remaking of this decision. The single discreet issue to be resolved, and the impact of that resolution fed into the proportionality assessment, is the extent to which in the light of the correspondence the Appellant can anticipate being supported were she to have to return to Bangladesh.
24. In reaching our conclusions we have had regard to the argument that remaking the decision in the UT has the effect of depriving the Appellant of the two-stage decision making process, and confining any appeal from the UT to a second appeals test. That is a factor which is to be weighed in the balance in the context of the exercise of discretion and the importance of the right to a fair hearing which was reflected by what was said by the UT in MM that remittal in cases of unfairness was “a fairly strong general rule”. Nonetheless in exercising the discretion under paragraph 7.2, which reflects that “fairly strong general rule” and does not provide an absolute requirement, it is appropriate to carefully scrutinise the nature of the error of law, the effect of the unfairness on the decision as a whole along with its nature and extent as part and parcel of the exercise of discretion. In relation to all the issues save the question of the availability of support for the Appellant in Bangladesh in reality a two stage appeal has been available to the Appellant. Having reflected upon the impact on the opportunity for the Appellant to have a two stage appeal process available to her we remain satisfied that in this case the appropriate disposal is as we propose.
25. To conclude, the error of law, which is conceded, and which can be characterised both as a failure to take account of the material considerations as well as a mistake of fact leading to unfairness, impacts upon a single discreet issue in the decision under challenge, and many of the conclusions reached by the FtT Judge were arrived at following a fair and effective adjudication. Taking those matters into account we are satisfied that as an exercise of the UT’s discretion in the particular circumstances of the present case set out above the appropriate approach to the disposal of this appeal is for it to be retained in the UT and remade preserving the conclusions of fact which FtT Judge made in relation to the circumstances of the Appellant and her family in the UK, her medical condition and the impact of her medical condition on her ability to self-care and her requirement for support and assistance.
Notice of Decision
The decision of the First-tier Tribunal is set aside for error of law and we direct that the appeal be re-determined in the Upper Tribunal.
Signed Sir Ian Dove Date 12th January 2023
The Hon. Mr Justice Dove
President of the Upper Tribunal
Immigration and Asylum Chamber