Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18705/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On March 30, 2017
On April 10, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

mrs rubina begum
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hussain, Legal Representative
For the Respondent: Mr Duffy, Senior Home Office Presenting Officer
Interpreter: Ms Rashid

DECISION AND REASONS
1. The appellant is a national of Bangladesh. She entered the United Kingdom on July 20, 2013 as a student and was granted leave until August 11, 2014. On August 7, 2014 she submitted an application for leave to remain but this was refused by the respondent on May 5, 2015. She appealed that decision on May 18, 2015 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and her appeal came before Judge of the First-tier Tribunal Hussain (hereinafter called the Judge) on July 1, 2006 and in a decision promulgated on August 19, 2016 the Judge dismissed her appeal. That decision was appealed on September 7, 2016 and Judge of the First-tier Tribunal Hollingworth granted permission to appeal on December 16, 2016 and the matter came before me on February 3, 2017 for an error of law hearing.
2. During this earlier hearing Mr Hussain outlined his grounds of appeal and Mr Duffy, who represented the Secretary of State on the last occasion, accepted that the Judge had erred in law when finding there were no exceptional features to consider under article 8 ECHR. There had therefore not been an assessment under Article 8 and he agreed that this was a material error based on that
(a) They had been in a durable relationship since July 20, 2013.
(b) There was a young child who was a British citizen; and
(c) There was no evidence that there had been any consideration under Section 55 of the Borders, Citizenship and Immigration Act 2009.
3. I adjourned this case for further evidence to be served and on March 27, 2017 a supplemental bundle of documents was served by the appellant’s solicitors and contained within that bundle of documents were statements from the appellant and her husband Masud Miah, evidence relating to a miscarriage and subsequent burial of the miscarried child. I was also handed at today’s hearing a copy of an ultrasound result confirming that the appellant was pregnant again with an estimated date of delivery being August 1, 2017.
4. I raised with Mr Hussain and Mr Duffy what oral evidence would be necessary in this case as I had adjourned the matter primarily for submissions. Mr Duffy indicated that he would not have any questions for either witness and that his submissions would be on two narrow points. Mr Hussain confirmed that he would have no additional questions on the basis that the ultrasound report was admitted into evidence. Mr Duffy agreed to the admission of the new document and it is against this background that I took submissions from the representatives.
5. I do not make an anonymity order in this case.
SUBMISSIONS
6. Mr Duffy submitted that this was an appeal which fell to be considered outside of the Immigration Rules under Article 8 ECHR. He argued that the appellant had not satisfied the requirements of the Immigration Rules at the date of application and consequently this decision was governed by Article 8 legislation which required me to have regard to Section 117B of the 2002 Act.
7. In particular, he submitted that the issue for the court was whether it would be reasonable to expect the child to leave the United Kingdom. His initial submission sought to differentiate the wording of Section 117B(vi) from the wording in Section EX.1 of Appendix FM of the Immigration Rules but on checking the wording of both provisions he agreed that the wording was identical although he submitted that consideration under the Immigration Rules would not require a consideration of section 117B factors with the exception of Section 117B(vi).
8. Mr Duffy submitted it was open to the appellant to leave the United Kingdom and return to Bangladesh and to make a fresh application for entry clearance. He accepted the respondent’s own policy, as stated in a policy document dated August 2015, accepted there were no circumstances where it was reasonable to expect a British citizen child to leave the United Kingdom. He submitted it was open to the appellant to leave her two-year old child and return to Bangladesh and to make an entry clearance application or to simply make a fresh in-country application. She could submit her application within fourteen days of receiving any refusal decision and her application would be considered under the Rules. The respondent would clearly have to consider the application against the Rules but this time there would be no dispute about either paternity or whether the child was British or whether they were partners within the definition of the Immigration Rules. These were all live issues when the last application was submitted. He invited me to dismiss the appeal on human rights grounds.
9. Mr Hussain adopted his skeleton argument that he had submitted at the commencement of the hearing. He submitted that I should allow the appeal and take into account that the appellant had been in the United Kingdom lawfully ever since she entered and that she was in a genuine and subsisting relationship with her partner. The only reason they had not married was due to his previous domestic situation and the fact that they needed permission from the Secretary of State to do that. An application had already been submitted as had been a request for the return of her passport to enable such an application to be made. The appellant, he submitted, was the mother of a British child who had been born on June 28, 2014 and she was also expecting their second child on August 1 of this year. Sadly she and her partner had lost a child last year as evidenced by the documents in the bundle.
10. Mr Hussain submitted that this was a case that should be dealt with outside of the Immigration Rules. He submitted that Section 117B(vi) of the 2002 Act was a deciding factor in this case and the issue was whether it would be reasonable to expect a British child to leave the United Kingdom. He submitted that the respondent’s own policy made it clear that it would not be reasonable to expect the child to leave the United Kingdom as Section 117B(vi) of the 2002 Act made it clear that where there was a genuine and subsisting relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom and the public interest did not require the person’s removal. The child’s best interest was to remain with both parents here.
11. Mr Hussain pointed out that Mr Duffy’s solution that a fresh application be made provided no guarantees that this decision would be any different next time round if it were to be refused today. Her partner did not satisfy the financial requirements of the Rules and currently the appellant would not satisfy the English language requirement. Any application would therefore have to be made under Section EX.1 of Appendix FM of the Immigration Rules and the test applied under Section EX.1(a)(ii) was the same test as was being applied in Section 117B(vi). If the Upper Tribunal refused the appeal then he submitted why would this decision be any different in fourteen days time which was the period in which the appellant had submitted a fresh application. Mr Hussain invited me to allow the appeal.
FINDINGS
12. This is an application bought by the appellant who entered the United Kingdom as a student and then made an application under ten year partner route on the basis of her relationship with Mr Miah. For reasons I do not need to go into she did not satisfy the Immigration Rules primarily because she had not been a partner for two years at the date of application.
13. If a future application had to be submitted it is clear that that requirement would now be met.
14. Mr Duffy in opposing the application made two submissions. His first submission was that it would be reasonable for the appellant to leave the country and to make an entry clearance application. Knowing what I do about the appellant’s and her partner’s circumstances and in particular that neither the £18,600 financial requirement nor the English language certificate requirement would be met the application would have to be dealt with under Section EX.1 of Appendix FM of the Immigration Rules. Such an application may meet the requirements of the Rules but Mr Duffy accepted that requiring a mother of a young child to leave the United Kingdom in such circumstances was not the strongest argument he could put forward.
15. The appellant is the primary carer of the child and whilst she and her partner live together her partner is in full-time employment and the appellant cares for the child and has done so since birth. She is also pregnant and expecting their second child on August 1, 2017. The option therefore that she leave the United Kingdom and attempt to make a fresh application is unattractive especially as Section EX.1 of Appendix FM cannot apply on an entry clearance application and the delay in trying to gain entry back to the United Kingdom would be extended.
16. Both parties agreed that Section 117B(vi) was an important issue in this appeal but as Mr Duffy properly pointed out an article 8 assessment must have regard to a number of factors including the fact that the appellant did not speak English and that £18,600 financial requirement was not met and the appellant could be a financial burden on the state. Mr Hussain submitted that the proportionality assessment should be undertaken with regard to the fact that if a fresh in-country application had to be made the Immigration Rules dictated that the test under Section EX.1 would be the same as that applied under section 117B(vi) of the 2002 Act.
17. I have given those submissions careful consideration and ultimately in a finely balanced consideration, I find that there is a difference between an application under Article 8 and an application under Section EX.1 of the Immigration Rules.
18. When the Secretary of State considers an application under Section EX.1 he considers it in the knowledge that the parties did not satisfy either the financial requirements or English language certificate requirement (or both) but nevertheless is able to consider whether it would be reasonable to expect the child to leave the United Kingdom. In other words, no adverse findings are made due to the absence of an English language certificate or the failure to meet the financial requirements.
19. Under Article 8 there is a wider assessment and as both parties agreed Section 117B(vi) is an important factor in the decision-making exercise which forms part of the proportionality assessment. The child’s best interest clearly is to remain here and preferably with both parents but the fact the appellant did not satisfy the Rules from a qualifying, financial and English language are all relevant factors and cannot be overlooked when carrying out a proportionality assessment.
20. Having considered the submissions made by both representatives and after taking into account all of the documents I find that it would not be unreasonable to refuse the appellant’s appeal as this would not lead to her having to leave the United Kingdom for the reason set out earlier.
21. In the circumstances, I therefore dismiss the appellant’s appeal under Article 8 ECHR.

Notice of Decision
22. I previously found an error in law. I have remade the human rights appeal and I dismiss the appeal on human rights grounds.

Signed Date April 6, 2017

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

I do not make a fee award because I have dismissed the appeal.

Signed Date April 6, 2017

Deputy Upper Tribunal Judge Alis