Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17003/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 October 2016
On 10 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mrs Jiao Chen
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr L Tarlow, a Home Office Presenting Officer
For the Respondent: Mrs Chen, appeared in person

DECISION AND REASONS

Introduction
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge M R Oliver who, in a decision promulgated on 15 January 2016, allowed the Mrs Chen's appeal. I shall refer to the appellant as the Secretary of State and Mrs Chen as the claimant.
Background
2. The claimant is a national of China who was born on 5 September 1983. She arrived in the United Kingdom on 29 April 2008 on a student visa valid until 31 January 2010. Her leave was extended, firstly as a student and secondly as a Tier 1 (General) Migrant, until 13 March 2014. She married her husband, Amit Harbhajanka, a 37- year old Indian citizen born on 1 August 1978. The claimant's first child was born in the United Kingdom on 22 February 2014. On 5 March 2014 she applied for leave to remain on the basis of her family life. The Secretary of State refused the claimant's application on 5 August 2014. The claimant appealed against that decision to the First-tier Tribunal. In a decision promulgated on 20 January 2015 the First-tier Tribunal, Judge Clarke, dismissed the claimant's appeal.
3. On 1 March 2015 the claimant made a further appellant for leave to remain on the basis of her family life. The Secretary of State refused the application on 22 April 2015 considering that the claimant had failed to meet the requirements of Appendix FM because her partner was not British or settled in the United Kingdom and that she did not satisfy the parent requirements because her daughter was not a British citizen. The Secretary of State considered that the claimant could not meet paragraph 276ADE of the Immigration Rules and that there were no exceptional circumstances warranting a grant of leave outside of the Immigration Rules.
4. The Secretary of State considered the best interests of the claimant's child under Section 55 of the Borders, Citizenship and Immigration Act 2009, finding that it was not unreasonable for the family to relocate to China and that there were no exceptional circumstances requiring or permitting consideration outside the Immigration Rules.
The Appeal to the First-tier Tribunal
5. The claimant appealed against the Secretary of State's decision to the First-tier Tribunal. The First-tier Tribunal found that the Secretary of State had failed to act consistently. The Tribunal found that discretion had been exercised in favour of the claimant's husband on the basis of his family life with her and their children but that no reason had been given why that discretion should not be exercised in the same way in the appellant's case.
6. The Tribunal allowed the appeal on the basis that the Secretary of State's decision was not in accordance with the law. The Tribunal remitted the decision for further consideration to the Secretary of State and indicated that the Secretary of State should consider granting to the claimant the same discretionary leave as that accorded to her husband so that the cases of both can be considered at the same time.
7. The Secretary of State applied for permission to appeal against the First-tier Tribunal decision to the Upper Tribunal. On 22 September 2016 First-tier Tribunal Judge McCarthy granted the Secretary of State permission to appeal.

The Appeal to the Upper Tribunal
8. The grounds of appeal assert that there was procedural unfairness. It is asserted that the judge set out at length the claimant's immigration history including the previous application made on the same basis on 5 March 2014 and subsequently refused by the Secretary of State in August 2014. It is asserted that an adjournment application was made by the Home Office Presenting Officer and a minute of the Presenting Officer's note is set out:
"I applied for an adjournment on the grounds that the appellant had had a dismissed appeal within the last year on an application and RFRL that dealt with identical issues to this one. This determination was not before the court and it was bound to have corresponding Devaseelan issues. Furthermore, although the appellant's husband had been granted discretionary leave, I did not have his file and we did not know the full reasons as to why he had been granted discretionary leave. There was a decision letter in the respondent's bundle showing that he had been granted DL on the basis of his family life but it was not clear what that meant. The adjournment request had initially been supported by Ms Bagra, but upon realising that the IJ intended to grant the appeal despite the documentary shortcomings, changed her mind."
9. The Secretary of State submits that the judge erred in failing to grant an adjournment or to even record the Secretary of State's adjournment application. It is asserted that there was a material document which was in existence and within the knowledge of the claimant which was a material factor which could have shed light on the issues.
10. Mr Tarlow submitted that although the claimant may feel aggrieved the overriding principle is that the interests of justice must be served. He submitted that the decision of Judge Clarke was not available at the hearing but that this was of considerable importance and ought to have been the starting point for the judge, particularly given that the first appeal was on the same basis as the current appeal. He submitted that the judge had failed to record the adjournment request and by failing to adjourn this resulted in the court being deprived of important information and evidence that would have had a bearing on the material before the court.
11. The claimant submitted that the decision of Judge Clarke was in the bundle and that Judge Oliver asked the question in court as to whether or not that decision had been seen. She submitted that her new application was different because her daughter had also been granted discretionary leave. She submitted that she had sent a letter to explain why her husband had been given discretionary leave to remain. She submitted that she had talked about an adjournment with her representative but that they had said no to an adjournment. She clarified that the lawyer had thought that there might be a request for an adjournment because the Home Office did not have the bundle.
12. In a written submission the claimant submitted that there had been a material change in circumstances between the first decision of Judge Clarke and the new application - namely that her daughter had been granted discretionary leave to remain in the UK. It was submitted that the Secretary of State had been ill prepared for the hearing. Such lack of preparation should not prejudice the claimant.
13. Mr Tarlow in reply submitted that the First-tier Tribunal decision does not record or make any reference to the previous determination.
Discussion
14. There is no record within the decision of Judge Oliver that any request for an adjournment had been made. The judge refers to the claimant's first application setting out:
"3. The respondent refused the application on 5 August 2014 and made the further immigration decision to remove the appellant under Section 47 of the Immigration, Asylum and Nationality Act 2006. The refusal was based on her failure to meet the requirements of Appendix FM because her partner was not British or settled and she did not satisfy the parent route. She could not satisfy the private life route under paragraph 276ADE of the Rules and there were no exceptional circumstances. It was asserted that the best interests of their child had been considered under Section 55 of the Borders, Citizenship and Immigration Act 2009 but it was not unreasonable for the family to relocate in China and there were no exceptional circumstances requiring or permitting consideration outside the Rules."
4. It is unclear to what extent, if any, the respondent gave meaningful consideration to the fact that her husband had been granted his second period of discretionary leave on 11 July 2014 on the basis of his family life. Although it was made clear to the husband that his leave was subject to review, it was also made clear that the grant had been as a result of the discretion exercised in his favour.
5. Rather than appealing the refusal of her application the appellant chose to make a further application for leave to remain on the basis of family life on 1 March 2015."
15. It is clear that this was factually incorrect. The claimant appealed against the refusal of her application and that appeal was heard by Judge Clarke sitting at Taylor House on 20 January 2015. Judge Clarke dismissed the claimant's appeal. The claimant sought permission to appeal against that decision. The application for permission to appeal was refused by the First-tier Tribunal on 24 February 2015. The claimant did not re-new her application for permission to appeal to the Upper Tribunal.
16. It is clear that the First-tier Tribunal decision of January 2015, which was on an almost identical basis and within a year of the hearing before Judge Oliver on 17 December 2015, was a matter which ought to have been taken into consideration by Judge Oliver. According to the case of Devaseelan that determination ought to have been the starting point for consideration of the claimant's current appeal. On checking the court file no copy of Judge Clarke's decision was in the file.
17. In failing to grant an adjournment the First-tier Tribunal has failed to consider material that it ought to have considered. I find that this was a material error of law.

Notice of Decision
The decision of the First-tier Tribunal contained a material error of law and I set aside that decision pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Owing to the nature of the fact-finding required I remit the case for a de novo hearing before the First-tier Tribunal. The case has been listed for a hearing on 31 May 2017 at Hatton Cross before any judge other than Judge M R Oliver. The time estimate is one hour 30 minutes.
No anonymity direction is made.

Signed P M Ramshaw Date 8 November 2016

Deputy Upper Tribunal Judge Ramshaw