Tribunal decisions

The decision

IAC-AH-SAR-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18116/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th February 2017
On 7th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr S M MOSTOFA [M]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Bhanji, Counsel
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Bangladesh born on 4th December 1988. The Appellant originally entered the UK as a student on a visa on 20th February 2007 with leave to remain until 1st May 2010. That leave as a student was extended until 6th October 2014. The Appellant thereafter applied for leave to remain based on his family and private life. That leave was curtailed. A further application based on the Appellant’s private life under Article 8 of the European Convention was made and was refused by Notice of Refusal dated 29th April 2015.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Manyarara sitting at Hatton Cross on 15th July 2016. In a decision and reasons promulgated on 10th August 2016 the Appellant’s appeal was dismissed under the Immigration Rules but was allowed on human rights grounds – Article 8 – outside the Rules.
3. On 22nd August 2016 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. Those grounds contended that although the judge had refused the Appellant’s appeal under the Immigration Rules on the basis that he did not meet the requirements of the Rules the judge, in going on to consider whether there were compelling circumstances, applied too low a threshold for the compelling circumstances test. Further, it was contended that the judge had failed to properly take into account that the Appellant had only been in the United Kingdom in a temporary capacity and had no expectation to remain in the UK, and furthermore had failed to have proper consideration to the public interest.
4. On 8th December 2016 First-tier Tribunal Judge Mark Davies granted permission to appeal.
5. On 24th February 2017 the Appellant lodged a skeleton argument which effectively constitutes a response to the Grounds of Appeal under Rule 24. The submission effectively therein was that the Grounds of Appeal are a mere disagreement with the Immigration Judge’s findings.
6. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. For the purpose of continuity throughout the appeal process the Secretary of State is referred to herein as the Respondent, and Mr [M] as the Appellant. The Appellant appears by his instructed Counsel, Mr Bhanji. Mr Bhanji is the author of the skeleton argument/Rule 24 response. The Secretary of State appears by her Home Office Presenting Officer, Mr Bramble.
The Issue
7. This case turns entirely on whether or not the judge, in applying the principles of compelling circumstances, was entitled to find that the Appellant could succeed in his claim pursuant to Article 8 outside the Rules, it being accepted that the Appellant cannot succeed under paragraph 276ADE(vi). In a detailed analysis the judge made findings at paragraphs 21 to 36 regarding that aspect, finding that the Appellant did not meet the requirement as a matter of law that there were “very significant obstacles” to his integration on any return to Bangladesh.
8. The judge therefore went on to consider whether there were any compelling circumstances which meant that she should allow the appeal outside the Rules. She found that there were. The issue consequently before me is whether the judge was entitled to find that there were compelling circumstances that justified the allowing of the appeal outside the Immigration Rules or whether, as is submitted by the Secretary of State, the test applied was at too low a threshold. It is the agreement of both legal representatives that the findings of fact are not challenged and consequently I either find that there is a material error of law and re-make the decision dismissing the original appeal from the Secretary of State or, alternatively, I find that there is no error of law and the decision of the First-tier Tribunal Judge is upheld.
Submissions/Discussions
9. Mr Bramble starts by taking me through the basis upon which the judge has refused the appeal under the Immigration Rules and found that the Appellant could not succeed. With respect to Mr Bramble, that is an accepted fact. He acknowledges that the judge thereafter is not only entitled, but indeed should look at the claim outside the Rules and takes me to paragraph 46 of the judge’s decision. He notes that the Appellant is suffering from an accepted mental health illness but queries whether the finding of the Immigration Judge
“that to prematurely disrupt the Appellant’s current treatment is likely to give rise to a conflict and may trigger a deterioration”
satisfies the compelling reasons test. He cross-references this to the finding of the judge at paragraph 43 that
“there is a clear indication of referral for psychotherapy and a community nurse or mental health team, which would suggest a mental health condition that has been taken seriously”.
10. He acknowledges that there are two separate tests to be considered but queries whether paragraphs 41, 43 and 46 stand up to scrutiny for compelling circumstances, bearing in mind the findings that the judge has made under the Rules.
11. Finally, he takes me to paragraph 50 which reflects the public interest considerations of the judge and queries whether or not paragraph 50 merely does lip service to the statutory guidance or whether the judge has given reasons. He contends that it is arguable that he has not and for all the above reasons the appeal should be allowed and a decision re-made dismissing the appeal.
12. Mr Bhanji takes me to his skeleton argument submitting that throughout the judge has adopted a thorough approach to reconciling the facts with the Rules and carried out a thorough assessment of compelling circumstances distinguished from the findings in relation to the Rules and that the findings that she has made are ones that she was entitled to reach. He reminds me that there are no adverse credibility findings and submits that paragraph 46 does not assist the Secretary of State in his submissions and that the main thrust of the judge’s finding is to be found from paragraph 43 onwards.
13. So far as the contention that the judge has failed to give due consideration to the public interest, he submits that the public interest was properly considered as part of the judge’s assessment. He asked me to find that there is no material error of law and to dismiss the appeal.
The Law
14. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
15. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
16. The issues herein are relatively straightforward insofar as there is no challenge to the credibility of the Appellant’s testimony and of the findings of fact. The fact remains therefore that it is accepted by the Secretary of State that the Appellant suffers from depression and that medical evidence has been provided and that he is receiving treatment for mental health conditions. The judge has given due note to the correspondence provided by the Appellant’s mental health providers. It is in analysing the Appellant’s mental health and the risks that lay before him if that current regime of health treatment is not maintained that led the judge to find that prematurely disrupting his current treatment could give rise to conflict and may trigger a deterioration. She emphasises the Appellant will benefit from completing his current therapy treatment by the grant of “a short period of leave in order to complete his therapy”. He notes that thereafter it may be that the medical professionals will be in a position to state what the likely prognosis in the Appellant’s case in relation to any further period of leave after his current treatment is complete should be.
17. This is a judge who has given a very careful analysis of the law. She has emphasised in her decision that she is not suggesting that the Appellant should be allowed an indefinite period of leave to remain. It is emphasised both by her, and in Mr Bhanji’s skeleton argument, that the period to be allowed is a short period of one (Mr Bhanji suggests 30 months) to enable the Appellant’s current medical treatment to be completed, bearing in mind the risks that might befall him and the damage to his mental health if he is returned without such treatment being carried out.
18. The judge has found that such treatment would meet the compelling circumstances test. The judge heard the evidence. I acknowledge that the Secretary of State was not assisted by the failure of the Secretary of State to provide a Home Office Presenting Officer to raise challenges at the hearing before the First-tier Tribunal but this is a judge that has carried out a very thorough analysis. She has made full and proper reasoned decisions why the Appellant cannot succeed under the Rules but has thereafter gone on to set out the exceptional, and in her view (and I certainly do not challenge this), short term requirement that the Appellant meets compelling circumstances for leave to remain. In such circumstances I find that the judge has carried out a very full and thorough analysis of the concept of compelling circumstances and made findings that she was perfectly entitled to. This is not a case, as the Secretary of State submits, where too low a threshold test has been imposed. Each case is fact sensitive but the judge has given due consideration to the facts of this case in reaching her decision and consequently the decision discloses no material error of law.
19. I acknowledge the point made by Mr Bramble as to whether paragraph 50 actually shows any findings by the judge when giving due consideration to the issues of public interest. I am satisfied that whilst perhaps a clearer analysis could have been carried out, it has to be remembered that that paragraph has to be looked at in the context of the findings made throughout the rest of the decision, and I am satisfied that the judge has done enough to show that she has given due and proper consideration to public interest considerations and therefore that paragraph discloses no material error of law.
20. In such circumstances I find that there is no material error of law in the decision of the First-tier Tribunal Judge and the appeal by the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained. I would however emphasise yet again to the Appellant exactly what this means. This does not provide him with indefinite leave to remain for ever and ever. It is made very clear by Judge Manyarara, acknowledged by Mr Bhanji in his skeleton argument, and reiterated by myself, that the purpose by which the current appeal against the decision of the Secretary of State’s Notice of Refusal is allowed, is based on the medical evidence that damage that could be caused to the Appellant’s mental health if he fails to complete the course of treatment that his mental health providers recommend. It is against that background that this appeal succeeds. It would be perfectly appropriate, and indeed proper, on the conclusion of that treatment for this matter to be re-visited by the Secretary of State and for a fresh determination to be made at that time as to whether or not the Appellant’s leave should or should not be extended further.

Notice of Decision

The decision of the First-tier Tribunal discloses no material error of law and the appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris