Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14548/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 10th October 2016
On 25th October 2016

Before

DEPUTY upper tribunal judge ROBERTS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

harjit kaur
(ANONYMITY DIRECTION not made)

Respondent

Representation:

For the Appellant: Mrs Pettersen, Senior Home Office Presenting Officer
For the Respondent: Mr Mold, Counsel

DECISION AND REASONS

1. The Secretary of State appeals with permission against the First-tier Tribunal (Judge Conrath) which in a decision promulgated on 6th May 2016 allowed the appeal of Harjit Kaur against the Secretary of State's refusal to grant her leave to remain in the United Kingdom under Article 8 ECHR family/private life rights.
2. For the sake of clarity, throughout this decision I shall refer to the Secretary of State as "the Respondent" and Harjit Kaur as "the Appellant" which reflects their respective positions before the FtT.
Background
3. On 27th January 2015 the Appellant made a discretionary leave and human rights application for leave to remain in the UK on the basis of her family life with her daughter, son-in-law and granddaughter. The Respondent considered the matter and on 10th April 2015 refused the application. The Respondent's decision informed the Appellant that she had a right of appeal against the refusal but that her right to appeal was limited in effect to whether the "decision is unlawful under Section 6 of the Human Rights Act 1998." The Appellant exercised her right to appeal.
FtT Hearing
4. When the appeal came before the FtT it considered documentary evidence and heard oral evidence from the Appellant, her daughter and her son-in-law. The judge then set out that the Respondent had previously exercised her discretion in favour of the Appellant in 2012 and had granted her leave to remain in exercise of that discretion, until 15th February 2012. The judge concluded therefore that because the "same circumstances" as those which resulted in the discretionary leave granted up 2015 prevailed, the Respondent should have followed her own guidelines and granted a further period of discretionary leave [20]. He placed reliance upon a policy document referring to the Respondent's transitional arrangements relating to discretionary leave and then said in one sentence that he found the Respondent's refusal to be both unlawful both because of a failure to follow her own guidelines and because "any requirement for this Appellant to return to, or be returned, to India would be a breach of her rights under Article 8 ECHR."
5. The judge then followed this up at [21] by saying that he accepted that the Appellant could not bring herself within the requirements of Appendix FM and/or paragraph 276 ADE in relation to the Rules concerning her private life but said in one paragraph at [22] that any removal of this Appellant would be a serious interference with her right to family life, such as to engage Article 8 and any attempt at removal would be disproportionate in the circumstances. He allowed the appeal.
Onward Appeal
6. The Respondent sought and was granted permission to appeal. The grounds seeking permission were two-fold:
(a) The FtT misdirected itself in that the judge exercised the discretion that was the Secretary of State's to exercise. The decision to extend discretionary leave or not is a discretionary decision taken entirely outside the Rules and is therefore not reviewable by operation of statute.
(b) In any event the judge's Article 8 reasoning was defective. The judge seemingly accepted that the Appellant did not qualify for leave to remain under pursuant to Article 8 under the Rules but made no reference to the public interest considerations, now set out in the Nationality, Immigration and Asylum Act 2002, when deciding it would be disproportionate to require this Appellant to leave the UK.
7. Permission to appeal was granted in the following terms:
"referring to paragraphs 6 and 7 of the grounds on which the respondent seeks permission to appeal, these paragraphs refer to the judge's article 8 reasoning. I would suggest that the respondent's case is quite strong here. The judge accepted that this appellant did not qualify for leave to remain pursuant to the "article 8 immigration rules" (his paragraph 21) but made no reference to the "exceptional circumstances test" explained (for instance) in SS (Congo) & Others [2015] EWCA Civ 387, 23 April 2015. And I consider it arguable (as per the grounds) that the judge has not sufficiently factored in the public interest considerations that are set out in Part 5A of the Nationality, Immigration and Asylum Act 2002
in my assessment the position as regards the respondent's current paragraphs 3 to 5 is more nuanced. Here the respondent refers to Virk [2013] EWCA Civ 652, 12 June 2013 and argues, in effect, that in allowing this appeal the judge exercised a discretion that was the Secretary of State's to exercise. It seems to me that that strand of reasoning is at least arguable. That is, there is sufficient in the grounds to make a grant of permission appropriate."
Thus the matter comes before me to decide initially whether the decision of the First-tier Tribunal discloses an error of law requiring the decision to be set aside.
Error of Law Hearing
8. Before me Mrs Pettersen appeared on behalf of the Secretary of State and Mr Mold on behalf of Mrs Kaur. Mrs Pettersen's submission relied upon the grounds seeking permission. She submitted that the only appeal route available to the Appellant was an appeal under Article 8. The FtT's jurisdiction in effect was limited to the extent set out in statute. It was delineated by the 2014 Immigration Act. Therefore the FtT could only consider that one matter. It was not open to the FtT to widen the terms of its jurisdiction by finding as it had done in the present case that the Secretary of State's decision was unlawful per se. She submitted further that it was incumbent upon the First-tier Tribunal to fully engage with the factual evidence before it and make full reasoned findings. This had to be done by reference to the Immigration Rules and to the considerations set out in Part 5A of the Nationality, Immigration and Asylum Act 2002. Whilst she accepted that the judge mentioned Article 8, the decision lacked a considered reasoning of the evidence and of the considerations set out in Section 117. This had resulted in an unbalanced decision and one which was not sustainable.
9. Mr Mold on behalf of the Appellant submitted a Rule 24 Response. In that Response he sought to reargue that the Appellant's circumstances had not changed since the time she was last granted discretionary leave in 2012 and therefore this meant that any Article 8 claim fell to be considered against the transitional provisions set out in the Respondent's guidance rather that the Rules. The judge was entitled to assess the Appellant's claim, based on her Article 8 rights, against that guidance and to find that a grant of leave should have been made based on the fact that the same circumstances were continuing. The judges finding on the evidence in that regard was sufficient to show that the Appellant's Article 8 claim should be allowed outwith the Rules.
Consideration
10. I find that there is force in Mrs Pettersen's submissions. I find that what was before the FtT was an appeal only on the grounds that the Respondent's decision was unlawful under the Human Rights Act. It was unlawful under the Human Rights Act because it failed to respect the Appellant's right to a family/private life. In deciding whether that ground was made out, the FtT needed to focus on the underlying merits based on evidence on whether the Respondent's decision was a disproportionate one. It was not for the FtT to step outside that task by declaring the Respondent's decision unlawful. It was incumbent therefore, for the FtT to explain in the present appeal, what were the exceptional circumstances pertaining to the Appellant's case, sufficient to bring her outwith the Immigration Rules. This exercise is especially important when the judge has made a finding as he did that the Appellant did not qualify for leave to remain pursuant to the Article 8 Immigration Rules [21].
11. In addition, new considerations were brought into force on 6th April 2015 by the insertion of Section 117 into the 2002 Act. Those considerations deal with the public interest element in an Article 8 consideration and need to be factored into a proportionality assessment. I find that the FtT's decision discloses no real reasoning to show that it has kept the public interest considerations in mind when reaching conclusions. There is a failure to mention S. 117 at all. I see no analysis or reasoning to show why the FtT reached the conclusions it did in [22] and [23]. I find it has erred by not giving full reasons with reference to the "exceptional circumstances test" explained in, for example, SS Congo and others [2015] EWCA Civ 387. For these reasons I set aside the decision of the FtT.
12. Following discussion with the representatives, both were of the view that should I find an error of law in the Appellant's decision on account of a lack of reasoned findings, then the appropriate course would be to remit this matter to the FtT for a fresh hearing and for that Tribunal to re-make the decision. That is a course with which I agree.
Notice of Decision
The decision of the FtT dated 6th May 2016 allowing the Appellant's appeal is hereby set aside. The matter is remitted to the First-tier Tribunal for a fresh rehearing and for that Tribunal to remake the decision.

No anonymity direction is made.

Signed C E Roberts Date 22 October 2016

Deputy Upper Tribunal Judge Roberts