Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/15643/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd August, 2016
Signed 4th August, 2016
On 9th August 2016

Before

Upper Tribunal Judge Chalkley

Between

MST LOVELY AKTHER
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M Chowdhury, a solicitor with Liberty Legal, Solicitors
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a Bangladeshi national who was born on 20th October, 1991. The appellant entered the United Kingdom on 17th January, 2011 on a multi visit visa valid from 21st December, 2010 to 21st June, 2011. The appellant entered the United Kingdom on a second occasion on 4th October, 2014 on a multi visit visa valid from 26th August, 2014 to 26th February, 2015. She made application to vary her leave. That application was refused by the Secretary of State on 1st April, 2015 and the appellant appealed to the First-tier Tribunal against that decision.

2. The appellant's appeal was heard in Birmingham on 10th November, 2015 by First-tier Tribunal Judge R R Hopkins. In his determination, promulgated on 23rd November, 2015, he noted that the appellant had applied for leave to remain in the United Kingdom as the partner of Noin Uddin Ahmed ("the sponsor") a British citizen. On 18th January, 2015 the appellant and sponsor underwent a religious wedding followed by a civil ceremony on 19th January, 2015. The judge noted that the appellant was expecting the sponsor's child and that they had a home in the United Kingdom at [West Bromwich], a property owned by the sponsor. The judge noted that the removal of the appellant would leave the sponsor with a difficult decision as to whether to accompany her to Bangladesh or to remain in the United Kingdom, carrying on his family life with her at long distance until such time that she is in a position to obtain entry clearance to rejoin him.

3. The judge considered the evidence before him carefully and, notwithstanding the fact that the appellant was expecting a child to be born in February 2016 and that the child would be British, he was not satisfied that the appellant's removal prejudiced her and that the sponsor's family life in a sufficiently serious manner to amount to a breach of the rights protected by Article 8. He found the decision of the Secretary of State was proportionate to the legitimate aim of maintaining effective immigration control.

4. The appellant appealed and leave was granted by Upper Tribunal Judge Plimmer who said:

"It is arguable that the FTT should have taken greater care when analysing the proportionality of removal of the appellant in circumstances where it was agreed that she would imminently give birth to a British child and as such the correct test to be applied in the near future is that set out in Sanade and Others (British children - Zambrano - Dereci) [2012] UKUT 00048 (IAC). This makes it clear that where the child is a British citizen and therefore an EEA citizen, it is not possible to require them to relocate outside the EEA or to submit that it would be reasonable to do so."

5. Upper Tribunal Judge Plimmer found that the remaining grounds were not arguable.

6. In addressing me today Mr Chowdhury pointed out that the appellant had now given birth to a British child and, as such, the judge had erred in law in applying the proportionality test. He should have taken into account the fact that the appellant was about to give birth to a British child. He suggested that the judge should also have considered Section 55 of the Borders Act.

7. I drew to Mr Chowdhury's attention the fact that in his determination, Judge Hopkins had on several occasions noted that the appellant was about to give birth to a child who would be British, but nonetheless found that the appellant's removal would be proportionate. Mr Chowdhury responded by suggesting that what the judge failed to do was properly apply the proportionality test.

8. I suggested that perhaps Mr Chowdhury may like a little time to enable him to collect his thoughts and to take further instructions. I suggested that he could take fifteen minutes and that if he needed longer he should tell the usher. Following a brief adjournment of some ten minutes Mr Chowdhury told me he was ready to proceed.

9. He reminded me that the sponsor enjoys Article 8 rights in the United Kingdom. He was born in the United Kingdom and had only ever been to Bangladesh twice in his life. He is the principal carer for his mother and his Article 8 rights had to been considered by the judge. He also suggested that the judge should have considered the matter under the Immigration Rules.

10. Mr Jarvis suggested that Mr Chowdhury had appeared to move away from the grounds on which permission had been granted. At the date of the hearing before the judge the child had not been born and the judge was entitled on the evidence before him to make the decision he did. He did not believe that the appellant's removal would be disproportionate. Nothing in the grounds or in Mr Chowdhury's submissions has identified any error of law on the part of Judge Hopkins; there is no suggestion that the decision is in any way perverse. Mr Jarvis submitted that there could be no consideration of Article 8 under the Immigration Rules, since of course the appellant entered the United Kingdom as a visitor.

11. Responding, Mr Chowdhury asked me to remit the appeal for rehearing given that the appellant had now given birth to a British child. He told me that if the appellant were to return to Bangladesh she could not make an application under the Immigration Rules because the sponsor's income did not meet the required level.

12. I reserved my decision.

13. I have carefully read the determination of Judge Hopkins and have concluded that the appellant's challenge to the determination amounts to nothing more than a simple disagreement with the judge's finding that the appellant's removal would not be disproportionate to the need to maintain immigration control. The judge does take into account the Article 8 rights of both the sponsor and appellant at some length. The judge found that the sponsor is not the principal carer for his mother as had been claimed. The sponsor could, if he wished to, accompany the appellant. The judge's decision was based on the evidence before him and was not irrational. He was concerned with the facts as they were at the date of the hearing before him and at that time the child had not been born. There was no need for him to consider section 55. He considered the important elements of the sponsor's mother's health and the fact that the appellant was expecting a baby. The judge was entitled to conclude as he did and his decision is not perverse.

14. I find that there is no error of law in the determination of Judge Hopkins and his decision shall stand. The appellant's appeal is dismissed.

Richard Chalkley
Upper Tribunal Judge Chalkley

TO THE RESPONDENT
FEE AWARD

No fee being paid or payable there is a question of a fee award.

Richard Chalkley
Upper Tribunal Judge Chalkley