Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16934/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 November 2016
On 15 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

Mr FOYSAL MIAH
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Syed-Ali, Counsel
For the Respondent: Mr P Nath, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal from the decision of First-tier Tribunal Judge Harris promulgated on 11 May 2016. The appellant is a citizen of Bangladesh whose date of birth is 3 February 1990 and his appeal relates to a refusal by the Secretary of State dated 22 April 2015 in relation to a human rights claim. The matter was advanced before the First-tier Tribunal on the basis of paragraph 276ADE of the Immigration Rules and there is a detailed consideration of the application of those provisions in paragraphs 7 to 25 of the determination. The judge's conclusion at paragraph 6 is that the appellant does not succeed under paragraph 276ADE(1)(iv). There is no complaint made in relation to those factual findings.
2. What the judge then goes on to do is, as I observed to Counsel during submissions, is slightly unorthodox, in that he applies his mind to whether this matter can succeed under Article 8 outside the Rules. Rather than addressing the SS (Congo) question at the outset considering whether there are compelling circumstances for so doing, he immediately enters into an Article 8 assessment, rejects it, and in paragraph 40 states "Weighing up the matters before me, I find there are no compelling circumstances that outweigh the factors that go against the appellant". This approach is not criticised by the appellant and does not form part of his grounds of appeal and to my mind even if this were to constitute an error of law it is not material.
3. The essence of the appeal as advanced before me today by Mr Syed-Ali is that the judge did not properly carry out the assessment he should have done in looking at the application of Article 8 outside the Rules. He places particular reliance upon the decision in AM (S117B) Malawi [2015] UKUT 260 (IAC) and relies expressly on paragraph 5 of the head note to that decision which reads as follows:
"In some circumstances it may also be that even a person with indefinite leave to remain, or a person who has obtained citizenship, enjoys a status that is 'precarious' either because that status is revocable by the Secretary of State as a result of their deception, or because of their criminal conduct. In such circumstances the person will be well aware that he has imperilled his status and cannot viably claim thereafter that his status is other than precarious".
4. There seems to be no doubt in this case that the appellant, who spent a good many years in Bangladesh, nonetheless came to this country and that in the course of gaining entry a forged passport was used. The appellant was a minor and any criminality which may have attached to the use of the forged passport should not be visited upon the appellant, who was a child at the time. That matter was operative in the mind of the judge when he carried out his balancing exercise. I look particularly at paragraphs 37 and following of the determination which read as follows:
"37. I accept that the appellant, who has been brought up speaking English and is in a position to look for work if allowed, does not fall foul of the statutory considerations concerning economic independence and fluency in English.
38. It is a matter to be weighed in the appellant's favour, that through no choice of his own, he has found himself brought to this country while still a child and required to make a life here for himself, which to his credit he has done. For a considerable time he has believed himself lawfully settled in this country. The appellant does not have a criminal record and it is not said that he has engaged in anti-social behaviour while in the UK. I accept he has adopted British culture and thinks of the UK as home.
39. Yet the difficulty for the appellant concerns s.117B(4) and 5 of the 2002 Act. In law I am required to have regard to the consideration that little weight should attach to private life established while residing precariously or illegally in the UK. This applies to the appellant as, at most, he has had indefinite leave to remain wrongly granted to him".
5. In my assessment the First-tier Tribunal Judge has rightly identified all relevant features, both in the appellant's favour and those which go against him. He has carried out a careful balancing exercise and reached a conclusion which, although not every judge might have come to it, is nonetheless unimpeachable. I do not consider that the suggestion that there is an error of law has been made out. Issues of weight are entirely for the primary decision maker and it is not for the Upper Tribunal to re-make the decision. In the absence of any material error of law this appeal must be dismissed and the decision of the First-tier Tribunal Judge accordingly is maintained.

Notice of Decision
This appeal is dismissed and the decision of the First-tier Tribunal maintained.
No anonymity direction is made.

Signed Mark Hill Date 11 November 2016

Deputy Upper Tribunal Judge Hill QC