Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/18189/2015
IA/18199/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 October 2016
On 24 October 2016

Before

UPPER TRIBUNAL JUDGE PITT

Between

HARPREET [S] (first Appellant)
[Y D] (second Appellant)
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Maqsood, Counsel, instructed by Pride Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Porter promulgated on 13 March 2016 which refused the Article 8 claim of the appellants.
2. The background to this matter is that Mr [S], an Indian national, came to the United Kingdom as a student in 2011. On 13 July 2013 he married Mrs [NH] an Indonesian national. On 14 September 2013 Mr [S]'s leave as a student was curtailed as the respondent had been provided with information that he had failed to attend his college course.
3. On 14 September 2013 Mr [S] applied for leave as the dependant of his wife who had leave to remain in the UK as a domestic worker. That application was refused.
4. On 2 January 2015 Mr [S] and his newly born daughter born on 8 June 2014, also an Indian national like her father, made an application to remain in the United Kingdom on human rights grounds. The respondent refused those applications in a decision dated 1 May 2015.
5. There is no dispute that Mrs [H] has leave as a domestic worker to remain in the United Kingdom until 24 February 2017.
6. At the core of the Article 8 claim put to the Secretary of State and litigated before Judge Porter was the fact of the appellant being an Indian national of Sikh religion and of his wife being an Indonesian national of the Muslim religion. The appellants argued that because of the difference in religions the couple could not be expected to return to live either in India or in Indonesia. Their families would not approve of them having married somebody from a different religion this would cause them sufficient difficulty for them to be unable to return.
7. The respondent refused the Article 8 application under the Immigration Rules. She found that the application could not succeed under the partner route as Mrs [H] had only limited leave and therefore the requirements of paragraph E-LTRP1.2 of Appendix FM was not met. The child had no status to be in the UK, was not settled here and had not lived here for seven years and therefore the parent requirements of paragraph R-LTRP2.2 were not met. The respondent went on in the refusal letter on page 3 of 9 to consider whether paragraph EX.1 of the Immigration Rules applied but concluded that it did not as the eligibility requirements had not been met.
8. The respondent went on to find that the Immigration Rules covering private life were not met. Mr [S] could not show very significant obstacles to his integration in India if he returned and therefore paragraph 276ADE(vi) could not be met. The respondent's reasoning was that Mr [S] had spent almost the whole of his life in India, that his immediate family lived there and that he would unarguably be able to integrate there whether or not he did so in his home area, and his family would also have no difficulty.
9. The Secretary of State went on to find on page 4 of 9 that there were no exceptional circumstances here showing that leave should be granted outside the Immigration Rules. The respondent's reasoning included the fact that the second appellant, like her father, was an Indian national, that there was a functioning education system in India and that given her very young age she could be expected to live there with her parents, albeit there would be a degree of disruption. The claim that the families could not go to each other's countries for religious and family reasons was not accepted by the respondent.
10. In his decision Judge Porter sets out at [8] that at the outset of the hearing he was asked to adjourn the case. This was because Mrs [H] was giving birth on the day of the hearing. That fact is not disputed. He stated as follows when making his decision not to adjourn the hearing:
"8. At the start of the hearing, a motion to adjourn was made on behalf of the appellants on the ground that the first appellant's wife, described as his sponsor, was shortly to give birth to the parties' second child. Evidence of her estimated date of delivery was exhibited, and it was submitted that her evidence was essential for a just determination of the appeal, with regard to the question of proportionality. In particular, the sponsor's evidence regarding why the family could not be returned to Indonesia was highly relevant to the appeal. I asked why such a motion had not been made an earlier date by the solicitors representing the appellants, given that they must have been aware of this matter, and also why the motion had not been made at the start of today's proceedings, given that this was a case that was being transferred to my court in the afternoon of the day's proceedings. In particular, I referred to the statement from the appellant's wife, produced on this date, which stated that she would not be able to attend court due to the stage of her pregnancy. I was advised by Counsel that he had not been aware of the situation before the hearing date which I accepted. I noted that the attitude of the Home Office Presenting Officer was one of neutrality on this issue, although she did observe that the appeal was by the first appellant and not by his sponsor.
9. In assessing all factors, I determined to refuse the motion to adjourn, on the basis that it was being made at too late a stage, and the potential evidence was not, in my view, crucial to a fair determination. In particular, I considered that the first appellant would be able to explain fully why his wife believed that they could not go to live in Indonesia."
The appeal, therefore, then proceeded, the adjournment application having been refused.
11. The appellant's first ground of appeal challenged the refusal to adjourn the hearing in order for the wife to attend to give evidence. In the grounds of appeal stated that "it was also submitted that the evidence of the wife is important to the determination of the appeal". On the second page of the grounds it was identified that:
"? the IJ did however mentioned at paragraph 26 of the determination that no objective evidence was submitted regarding the effect of the religious differences in either India or Indonesia. It is submitted that for this reason the sponsor's evidence was very important and the IJ has erred in law not to grant adjournment."
12. The grounds go on to argue that "fairness" required that an adjournment was granted and that proceeding in the absence of the sponsor "is against the principle of natural justice and is non-existent in the eyes of the law" and that:
"? the reason given for the refusing of application for adjournment is inadequate and insufficient and the decision of IJ to proceed with the appeal was also against the will of natural justice. The IJ has considered the appeal in hasty manner without giving any weight and reason for the adjournment of the appeal, hence, the refusal of appeal is not only against the law but is also negation of basic rights of the appellant."
13. The grounds also refer to the reported case of Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC), the head note of which states:

"If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party's right to a fair hearing? See SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284."
14. I have considered this ground carefully, particularly so in light of the guidance in Nwaigwe. It is not my conclusion that the First-tier Tribunal Judge acted unreasonably or unfairly in refusing an adjournment. He was told that the sponsor's evidence related specifically to the reasons why the couple could not return to Indonesia together. Whatever the sponsor's evidence on that point, there was a separate limb of the claim, whether the family could return to India. Mr [S] was in attendance at the hearing and was able to give evidence on that aspect of the appeal. It has never been suggested that Mrs [H] could have given evidence on the difficulties for her or her family in India. Judge Porter made clear findings that the family could be expected to live in India so the absence of any evidence from Mrs [H] on Indonesia could not have been material to the outcome of the appeal.
15. It was suggested in the grounds that Mrs [H] should have been able to give evidence about the best interests of the child. It was not explained why Mr [S] was not in a position to give that evidence himself. Other than the subjective evidence as to family and religious difficulties in India, there has never been anything identified as capable of showing that the best interests of the very young child lay anywhere other than being with her parents. It is difficult to see what Mrs [H]'s evidence could have added to the assessment of the best interests of the child, therefore.
16. Put simply, Mrs [H] did not have material evidence to provide to the First-tier Tribunal beyond what was available in her witness statement or from Mr [S] and the decision not to adjourn in order for her to be present was not unfair or in error.
17. It was also argued that the First-tier Tribunal erred in its assessment of the circumstances of the second appellant and her best interests. The grounds refer to the guidance provided in Azimi-Moayed [2013] UKUT 00197. As above, however, there has never been anything here capable of showing that the child's best interests are other than being with her parents, whether in the UK or in her own country of nationality, India. That was the conclusion of the First-tier Tribunal and it was a conclusion fully open to it on the evidence.
18. At the hearing Mr Maqsood sought to argue an entirely new ground without seeking permission to do so. For that reason alone, I declined to take the point. Even had the argument been admitted, it was wholly misconceived. Mr Maqsood sought to argue that the assessment under the Immigration Rules here should have referred to the Rules for the dependent of a domestic worker and not those covering Article 8 in Appendix FM and paragraph 276ADE. That is not correct as Mr [S] and his daughter applied quite clearly for leave on Article 8 ECHR grounds, not as the dependents of a domestic worker.
19. Mr Maqsood also pointed out that the decision is somewhat unclear in the final two paragraphs where at [28] Judge Porter appears to make an assessment outside of the Immigration Rules with reference to the provisions of section 117A to D of the Nationality, Immigration and Asylum Act 2002, finding that they did not assist the family but then appearing to go on in [29] to state that a second stage Article 8 assessment was not carried out.
20. Again this was not a ground that had been raised previously and Mr Maqsood did not seek permission to vary the grounds and for it to be admitted. For what it is worth, I accept that [28]-[29] do not read entirely easily but in the context of the decision as a whole they are not capable of founding legal error. What Judge Porter appears to me to be trying to do at [28] to [29] is assess whether it was necessary to make an assessment outside the Immigration Rules. He ventures into that territory at [28] in order to decide whether he should do so or not but then concludes at [29] that nothing here required a second stage assessment. The key issue raised by the appellants was their ability to return as a family to India, this had been considered and found without merit under the Immigration Rules and there was nothing more that indicated that a second stage assessment was required. It was fully open to Judge Porter to find at [28] that in any assessment outside of the Immigration Rules paragraph 117B(5) had to weigh heavily against the appellant.
21. For all of these reasons, it is my conclusion that the First-tier Tribunal did not err in law in refusing an adjournment or in the Article 8 ECHR assessment and therefore the decision shall stand.

Decision

The decision of the First-tier Tribunal does not disclose an error on a point of law and shall stand.

Signed Date 20 October 2016

Upper Tribunal Judge Pitt