Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15972/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 November 2016
On 02 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

HINA NASIR
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Aslam, of Counsel, instructed by SAJ Law Chambers
For the Respondent: Mr S Walker, Home Office Presenting Officer

DECISION ON ERROR OF LAW
Anonymity
1. The First-tier Tribunal did not make an anonymity order. I have not been asked to make one and I see no public policy reason for doing so and so none is made.
Background
2. This is an appeal by the Appellant against the decision of the First-tier Tribunal who dismissed his appeal against the Respondent's decision refusing to vary her leave to remain and a concomitant decision to remove her to Pakistan contrary to section 47 of the Immigration, Asylum and Nationality Act 2006.
3. The Appellant is a national of Pakistan born on 4 September 1991. She arrived in the United Kingdom on 10 February 2013 with entry clearance conferring leave to enter as a Tier 4 Student Migrant until 1 August 2014. On the day her leave was due to expire she applied to extend her leave to remain in the same category. On 13 April 2015 the Respondent refused the application under the Immigration Rules essentially because the Appellant did not have a valid CAS assigned to her by a licensed Tier 4 Sponsor.
The Decision of the First-tier Tribunal
4. The Appellant's appeal came before First-tier Tribunal Judge Chana (hereafter "the Judge") on 11 May 2016. By this time the Appellant claimed to have established a relationship with a British citizen and, before the Judge the parties agreed that the sole issue to be decided was whether the Respondent's decision to remove the Appellant infringed Article 8 of the ECHR. Notwithstanding, during the course of the hearing it became apparent to the Judge that reliance was also being placed on the provisions of EX.1. of Appendix FM of the Rules. After hearing oral evidence from the Appellant and her partner the Judge dismissed the appeal in a decision promulgated on 10 June 2016. The Judge did not accept the Appellant had established a genuine and subsisting relationship with her partner [26] or that they had been living together for two years. The Judge concluded the Appellant's relationship with a married man with four children was a ruse to enable her to remain in the UK.
5. The Judge noted there was no tenancy agreement supportive of cohabitation and referred to a general lack of documentation supportive of the relationship. The Judge rejected the Appellant's explanation that she had been unable to obtain evidence given to her previous solicitor because it was not credible "that a solicitor in this country would not give the appellant her documents and that the appellant who is currently represented, would not have made a complaint against this solicitor" [21]. The Judge further noted that the Appellant gave her address as her aunt's address and not the address she claimed to live at with her partner which was a commercial building, and there was no documentary evidence that there was a studio flat in that building [22]. The Judge noted that there was no documentary evidence supportive of the Appellant's claim that an Imam would not marry her as a Sunni Muslim to her Ahmadi partner in a mosque unless she converted and further noted the absence of evidence to show the partner was going through a divorce [23]. The Judge further considered that it was not credible the Appellant lived with a very strict aunt yet was able to live away from the house during weekdays. The Judge also noted that the Appellant's claim that she could not return to Pakistan because she was living with a man and thus at risk from her family was belatedly raised at the hearing.
6. For these reasons the Judge concluded that the Appellant had not established a family life, and that any private life would not be prejudiced by a sufficiently grave interference to render her removal disproportionate contrary to Article 8 of the ECHR.
The Grounds of Application
7. The Appellant sought permission to appeal on 27 June 2016 on the basis that the Judge erred in law essentially on the grounds that she failed to take material matters into account; committed a mistake of fact; reached inadequately reasoned findings and failed to take note of the Upper Tribunal's Country Guidance in respect of the persecutory treatment metered out to followers of the Ahmadi faith; supportive of the claim that the Appellant and partner would not be permitted to marry in a mosque.
Permission to Appeal
8. Permission to appeal was granted by First-tier Tribunal Judge P J M Hollingworth on 14 October 2016 on all grounds.
Error of Law
9. At the hearing both representatives made submissions. Mr Walker conceded that the Judge materially erred in law at [22]. In view of that concession which was rightly made and, for other reasons, I announced my decision that the Judge erred in law and I set aside the decision of the First-tier Tribunal. As the parties were in agreement that the decision could not stand it is not necessary to traverse all the Grounds of Appeal or set out my reasons in detail but I briefly do so below.
10. There is no challenge to the Judge's decision under the Immigration Rules. The focus of the Appellant's challenge relates to the Judge's decision under Article 8 of the ECHR and, in particular, to her credibility findings in relation to whether the Appellant had established a genuine and subsisting relationship with her partner. While the Judge gave reasons for finding that the relationship was not genuine I find that they are infected by legal error and materially so.
11. Firstly, there is a contradiction at [20] where the Judge begins her assessment of the evidence by stating that there was no documentary evidence of a tenancy agreement. It is not clear why the Judge formed that view because she follows this by referring to a tenancy agreement of 23 November 2015. That tenancy agreement is in the joint names of the Appellant and her partner and is in respect of a residential flat situated behind [~] Martin Way: see page 14 of the Appellant's bundle.
12. At [22] the Judge referred to it being established at the hearing that the address the Appellant claimed to live at with her partner was a commercial building and went on to state that there was no documentary evidence that there was a studio flat in that building. The only reference to a commercial building is what the Judge noted at [16] from the evidence of the partner when it was put to him in cross-examination that the address where they claimed to live was a commercial building. However, the Judge recorded the response as being that the witness said that they lived in a studio flat. The evidential basis for the Judge's conclusion that it was established at the hearing that the address given was a commercial building is thus unclear. It is apparent that the evidence documentary or otherwise did not support that conclusion and it is plain that no consideration was given to the terms of the tenancy agreement that stipulated the letting was residential and was a property "behind [~] Martin Way".
13. The Appellant's evidence was that she hired a person namely Mohammed Usman who posed as a lawyer and informed her that he had submitted her documents to the Home Office and had informed the Court of her Grounds of Appeal. The Appellant stated that she had sought advice from her current representatives who after correspondence from the Home Office and the Court informed her that none of her documents or said grounds had been submitted and that Mr Usman was not even a lawyer and did not belong to any firm. That evidence is set out in the course of the Appellant's written testimony.
14. At [21] the Judge rejected the explanation provided for a lack of documents as not credible because she did not accept that a solicitor in this country would not give the Appellant her documents and that the Appellant who was currently represented would not have made a complaint against that solicitor. In reaching that conclusion however the Judge failed to make any findings in relation to the Appellant's written evidence as to Mr Usman before proceeding to draw adverse credibility conclusions in respect of the Appellant. Clearly, the explanation warranted consideration given the Judge's concern as to the lack of documentation and her reference to a "solicitor" appears to indicate that she failed to take on board the Appellant's explanation that she was dealing with a bogus individual.
15. That error I find dovetails into the Judge's conclusion at [24] that the Appellant's claim that she is at risk in Pakistan was an afterthought not made until the hearing in order to counter the suggestion that she could make an entry clearance application. I am satisfied that the Judge erred in the footing for this conclusion given the potential elision between the absence of clear findings as to the distinction between a solicitor and a man posing as a solicitor and the impact of that upon the presentation of the Appellant's case.
16. The above errors I find were central to the Judge's assessment of the genuine nature of the relationship which was made without any consideration of the background and substance of the relationship. For all these reasons I find that the Judge's assessment of the evidence is materially flawed and her credibility findings cannot stand. Accordingly, I set aside the decision of the First-tier Tribunal.

Disposal
17. Both parties invited the Tribunal to remit the matter to the First-tier Tribunal for the decision to be remade. By paragraph 7.2 of the relevant practice statement for appeals on or after 25 September 2012, I must be satisfied that:
"... the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2 it is appropriate to remit the case to the First-tier Tribunal."
18. In all the circumstances, given that fresh findings of fact will have to made, it is appropriate to remit the case to the First-tier Tribunal.
Notice of Decision
19. The decision involved the making of an error on a point of law and is set aside.
20. The appeal is remitted to the First-tier Tribunal for rehearing before a Judge other than Judge Chana.
No anonymity direction is made.

Signed Dated: 30 November 2016

Deputy Upper Tribunal Judge Bagral