Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15120/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 January 2017
On 11 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

MOHAMMED MAFUZUL ISLAM KHAN
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

the secretary of state for the home department
Respondent

Representation:

For the Appellant: In person
For the Respondent: Ms A. Brocklesby-Weller, Specialist Appeals Team

DECISION AND REASONS

1. The appellant appeals to the Upper Tribunal from the decision of the First-tier Tribunal (Judge Cohen sitting at Taylor House on 15 June 2016) whereby the First-tier Tribunal dismissed his human rights claim under Article 8 ECHR, both by reference to Appendix FM and Rule 276ADE of the Rules, and also outside the Rules. The claim had been triggered by the decision of the Secretary of State to remove him for obtaining his previous grant of leave by deception (reliance on an ETS language test result fraudulently obtained through the use of a proxy test taker). The First-tier Tribunal did not make an anonymity direction, and I do not consider that the appellant requires to be accorded anonymity for these proceedings in the Upper Tribunal.
The Reasons for Granting Permission to Appeal
2. On 10 November 2016 First-tier Tribunal Hollingworth granted the appellant permission to appeal for, in summary, the following reasons:
1. The judge arguably ought to have set out a full analysis of the application of the criteria pursuant to s117, and a fuller analysis of the factors relating to proportionality.
3. The Judge referred to the question of whether there were insurmountable obstacles preventing the sponsor from returning with the appellant to Bangaldesh to continue with family life there. But it was unclear to what extent the Judge had attached weight to the family and private life of the appellant established in the UK, before concluding that the appeal should be dismissed.
The Hearing in the Upper Tribunal
3. At the hearing before me to determine whether an error of law was made out, the appellant appeared in person. He told me he had settled the application for permission himself, without the assistance of a lawyer. Understandably, he had nothing to add by way of legal submissions to the grant of permission. He relied on the reasoning of the judge granting permission.
4. He drew my attention to a witness statement which he had made and served on the Upper Tribunal. His wife had given birth to a daughter on 26 September 2016. On 17 October 2016 his wife had applied for leave to remain consequential on the birth of the child, and her application was still pending. Although not mentioned by him in his statement, the appellant said that their child had been born two months prematurely and so required special care. The medical facilities in his home country were "not good"; and so, he indicated, it would be contrary to the child's best interests to require him, and hence his spouse and child, to return to Bangladesh at this time when the child was accessing the superior medical treatment she required on the NHS.
5. I explained to the appellant that the matters which he had raised fell outside the scope of this appeal, which was whether the judge had erred in law in his disposal of the appeal on the facts as they stood at the date of the hearing before him.
6. After hearing from Ms Brocklesby-Weller, I ruled that no error of law was made out. I gave my reasons for so finding in short form, and I undertook to provide reasons in writing in due course.

Reasons for finding no error of law
7. The relevant facts are adequately set out in the decision of Judge Cohen, and it is not necessary to repeat them. Having regard to these facts and to the relevant domestic jurisprudence on the topic of Article 8 ECHR, the claim did not have a realistic prospect of success, even taken at its highest. No Tribunal properly directed could have reached any other conclusion than that the appeal should be dismissed upon the factual matrix as it stood at the date of the hearing.
8. The appellant did not qualify for leave to remain under the Rules because inter alia he failed to meet the suitability requirement and his spouse was not present and settled here. She had entered the UK on a temporary basis as a student. In his witness statement for the hearing in the First-tier Tribunal the appellant did not dispute that he had used a proxy test taker. He simply relied on the fact that he had not been given 60 days' notice to find a new sponsor. But this was irrelevant, as the judge held at paragraph [9] of his decision. His leave was revoked in December 2014 when his use of deception was discovered. So he was not entitled to be given 60 days' notice to find a new sponsor.
9. The appellant could only succeed in a human rights claim outside the Rules if there were compelling circumstances which meant that he should nonetheless be granted Article 8 relief, despite not being able to satisfy any applicable Rule. The evidence did not disclose any compelling circumstances. The judge did not discuss the public interest considerations arising under Section 117B, but this was not material as either the relevant consideration was adverse to his case or at best it was neutral. If this had been a finely balanced case, a fuller analysis of issues pertaining to proportionality might well have been called for. But on the facts of this case the judge's reasoning was sufficiently clear, and he did not overlook any material matter which might have yielded a different outcome. The Judge gave adequate reasons for finding against the appellant.
Notice of Decision

The decision of the First-tier Tribunal did not contain an error of law, and accordingly this appeal to the Upper Tribunal is dismissed.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Monson