Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/14937/2013
IA/14941/2013

THE IMMIGRATION ACTS

Heard at Laganside Courts Centre, Belfast
Determination Promulgated
On 15 April 2014
On 16th April 2014

Before

The President, The Hon. Mr Justice McCloskey

Between

DELWAR BEGUM CHOWDHURY
ISTAK AHMED ANIK
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

Appellants: Mr McTaggart (of Counsel) instructed by Andrew Russell and Company Solicitors
Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellants are, respectively, mother, aged 31 years and son, aged 12. Both are nationals of Bangladesh. Their cases stand or fall together.

2. These appeals have their origins in decisions made on behalf of the Secretary of State for the Home Department (hereinafter the "Secretary of State"), dated 12 April 2013, whereby the Appellants' applications for leave to remain in the United Kingdom outside the Immigration Rules were refused. Separate removal decisions were also made. The refusal decisions consisted exclusively of an assessment of whether the applications satisfied the requirements of the Immigration Rules. No separate consideration was given to Article 8 ECHR outwith the framework of the Rules.

3. The First-Tier Tribunal (the "FtT") dismissed the ensuing appeals. In [8] of the determination, the Judge stated:

"[Counsel] indicated that reliance was placed upon the second Appellant's father being a British national as the basis for the claim to be permitted to remain. In turn, he would need his mother to care for him if he was to remain."

It was common case and, evidently, accepted by the FtT that there has been a long term estrangement between mother (the first Appellant) and father, Mr Oli Ahmed. The Judge returned to this theme in [36]:

"On the balance of probabilities I accept that the first Appellant married Mr Oli Ahmed on 22 September 2000 as evidenced by the Nikah Nama. I have not seen the original of his passport but again on the balance of probabilities I would accept from [the photocopy] produced that he was born in the United Kingdom and is a British national. I also accept the first Appellant's account of him leaving shortly after their marriage, returning after their son was born for a short time. Thereafter there is no evidence of contact."

Next, the Judge acknowledged that the originating application was for leave to remain outside the Rules. Having done so, he rehearsed section 55 of the Borders, Citizenship and Immigration Act 2009 (the "2009 Act") and the decision of the Supreme Court in ZH (Tanzania) - v - Secretary of State for the Home Department [2011] 2 AC 166. Having acknowledged the existence of family life between the Appellants, the Judge made the following omnibus conclusion, in [43]:

"It is open to the first Appellant to return to Bangladesh with her son and from there [to] make an application on his behalf for confirmation of his claim to British citizenship. She and her son have lived in Bangladesh all their lives. If any of the visit visa application is to be believed, she has profitably been self employed. She has siblings who can help her. She said until recently she had been living with her sister. I find the Respondent's decision is proportionate."

I have highlighted the word "confirmation"as it is not readily comprehensible, given the clear British nationality finding of the Judge.

4. Permission to appeal was granted and the case was argued at the hearing on the basis that, having found that the second Appellant is a British citizen, the Judge erred materially in law in failing to address the consequences of this. While the Judge purported to consider the best interests principle under the 2009 Act, the relevant passages of the determination contain no consideration or assessment of the British citizenship issue. Nor is there any consideration of the Zambrano principle. While this was not actively pursued or argued before the FtT the latter was, nonetheless, subject to the overarching duty imposed on the Courts of every Member State by Article 6 TEU.

5. On behalf of the Secretary of State, it was accepted that the determination contains an unambiguous finding that the second Appellant is a British - and, hence, EU - citizen. It was argued, consistent with the Rule 24 Notice, that the Judge erred in making this finding as the supporting evidence was insufficient. It was contended that the Judge should not have relied on a mere photocopy of the passport in question and, further, that this discrete finding is undermined by conflicting evidence relating to the father.

6. I draw attention to two particular pieces of documentary evidence adduced before the FtT. The first is a certified copy of the second Appellant's birth certificate. The second is the aforementioned photocopied passport. Juxtaposed, in the absence of any evidence to the contrary, I am satisfied that these two documents are consistent with each other. The finding that the gentleman in question is the second Appellant's father was, plainly, open to the Judge on the basis of the evidence available to him. The threshold for upsetting this finding is, by well established principle, that of irrationality. This elevated threshold is, in my view, manifestly not overcome. Accordingly, I conclude that there is no merit in what is, effectively, a "cross appeal" by the Secretary of State.

7. I conclude that the appeal succeeds. The Judge, having found unequivocally and in a manner which I consider unassailable, that the second Appellant is a British citizen, failed to address the consequences of such finding. In particular, there was a failure to acknowledge the potency to be attributed to this factor in considering and evaluating the second Appellant's best interests and in conducting the proportionality assessment. The materiality of this error of law is beyond plausible argument. I further consider that there was a second material error of law, constituted by the failure of the FtT to give any consideration of the second Appellant's rights as an EU citizen and the application of the Zambrano principle to the matrix in question.

DECISION

8. Accordingly, I set aside the decision of the FtT.

9. It follows from the analysis and conclusions above that the FtT should have allowed the Appellants' appeals on the ground that, based on the same analysis, the impugned decisions of the Secretary of State were not in accordance with the law. Accordingly, I remake the decision of the FtT by allowing the appeals.

10. It will now be incumbent on the Secretary of State to make fresh decisions in accordance with this judgment.

11. I would merely add that given the judicial finding that the second Appellant is a British citizen, he must be considered not subject to immigration control, having the right of abode conferred by section 2(1) of the Immigration Act 1971. Given this factor, the fresh decision of the Secretary of State may, foreseeably, grant to the second Appellant leave to remain in the United Kingdom. It is desirable that finality be achieved without avoidable delay.

Signed:
THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 15 April 2014