Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/13500/2015
ia/13503/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 November 2016
On 23 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE PEART

Between

ms Shweta
[V S]
(anonymity direction not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Bellara of Counsel
For the Respondent: Mr Singh, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellants are citizens of India. The first appellant (the appellant) was born on 18 November 1988. The second appellant is the appellant's child, born on 23 December 2010.
2. The appellant appealed against the respondent's refusal dated 25 March 2015. The appeal was allowed by Judge Fowell (the judge) in a decision promulgated on 11 April 2016.
3. The respondent sought permission to appeal the judge's decision and submitted that she carried out an inadequate analysis in reaching her decision and failed to properly take into account EV (Philippines) [2014] EWCA Civ 874.
4. Judge Frankish granted permission to appeal on 13 October 2006. He found it was arguable that the judge had carried out an erroneous assessment of the best interests of the child. Given that the judge found that the appellant had lied regarding the level of support she would have in India, there was arguably inadequate analysis as to why the child's developmental issues necessitated his remaining here. It was also arguable that insufficient weight had been given by the judge to EV in respect of the UK not being responsible for educating the world.
Submission on Error of Law
5. Mr Singh relied upon the grounds. Mr Bellara accepted that EV was of significance and the judge had failed to carry out the appropriate analysis.
Conclusion on Error of Law
6. The judge quoted the correct case law but failed to carry out an analysis or any adequate analysis of the appellant's circumstances in regard to the case law.
7. The judge's findings regarding the appellant's lack of credibility in terms of family support and her inability to satisfy the Immigration Rules including the finding that there would not be any "very significant obstacles" to her return to India in terms of paragraph 276ADE do stand.
8. The appeal is remitted to the First-tier for a judge other than Judge Fowell to establish whether there is a gap between the Rules and the appellant's circumstances in terms of SS (Congo) [2005] EWCA Civ 387 and Sunassee [2015] EWHC 1604 to require an Article 8 assessment of the circumstances outside the Rules and to make a decision in that regard taking into account inter alia EV.

Notice of Decision

The decision of the First-tier Tribunal contains errors of law and shall be reheard in the First-tier limited to the issues I have set out at [8] above.

No anonymity direction is made.

Signed Dated 14 November 2016

Deputy Upper Tribunal Judge Peart