Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22077/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On April 24, 2017
On April 26, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MRS NAZIYA BEGUM
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr McVeetie, Senior Home Office Presenting Officer
For the Respondent: Mr Timpson, Counsel, instructed by Legacy Law Solicitors

DECISION AND REASONS
1. The respondent in these proceedings was the appellant before the First-tier Tribunal. From hereon I have referred to the parties as they were in the First-tier Tribunal so that, for example, reference to the respondent is a reference to the Secretary of State for the Home Department.
2. The appellant is a national of Bangladesh. She applied for leave to remain under the Immigration Rules and in the alternative on human rights grounds. The respondent issued two decisions on March 19 and June 2, 2015 in which she refused the appellant’s application.
3. The appellant appealed those decisions on June 10, 2015 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002.
4. Her appeal came before Judge of the First-tier Tribunal Simpson (hereinafter called the Judge) on May 17, 2016 and in a decision promulgated on September 9, 2016 the Judge allowed her appeal. That decision was appealed on September 23, 2016 by the respondent and Designated Judge of the First-tier Tribunal Woodcraft granted permission to appeal on December 19, 2016 and the matter came before me on the above date for an error of law hearing.
5. I do not make an anonymity order in this case.
PRELIMINARY ISSUES
6. There appeared common ground between Mr McVeetie and Mr Timpson that when considering the appeal the Judge should have considered the appeal under Section EX.1(b) of Appendix FM of the Immigration Rules. The test to be applied in such cases was whether there were insurmountable obstacles to family life continuing in Bangladesh.
7. The grounds of appeal referred to Agyarko & ors, R (on the application of) v SSHD [2015] EWCA Civ 440 but this has now been superseded by Agyarko [2017] UKSC 11.
8. The court confirmed the test is not a reasonableness test which was of course the test applied by the judge at first instance. This is material error in law and I set aside that decision.
9. The appellant’s representative submitted an updated bundle and contained within that bundle was a birth certificate for the appellant’s child. This child is a British citizen and was born on January 5, 2017. Mr McVeetie agreed that this is a factor I would have to now consider and whilst Section EX.1 may not be met as that applied at the date of application it was clearly a factor to have regard to when considering article 8 ECHR and in particular Section 117B(6) of the 2002 Act.
10. It is against this background that I took brief submissions.
SUBMISSIONS
11. Mr Timpson submitted that financially the appellant and her husband satisfied the Immigration Rules and when their relationship commenced the appellant had been here lawfully albeit her status was precarious as she was here as a student. The child was three months old and wholly reliant on her mother as her father was in full-time work. He referred me to the decision of SF and others (guidance post 2014 Act) [2017] UKUT 120 and submitted that the respondent’s own policy said it would be unreasonable to expect the appellant to leave the United Kingdom in current the circumstances. There were no adverse findings under section 117B of the 2002 Act to be drawn and in the circumstances the appeal should be allowed outside of the Rules under article 8 ECHR.
12. Mr McVeetie acknowledged there was no adverse immigration history and given the respondent’s own policy and the fact there was a young female child and mother involved in this appeal he accepted there were no countervailing circumstances that undermined section 117B(6) of the 2002 Act. He conceded that on the facts of this case the appeal would succeed under article 8 ECHR.
FINDINGS
13. The appeal that came before the First-tier Tribunal did not involve a child but was based on the relationship between the appellant and her husband. They had not met the Rules and if all I was doing was considering the appeal based on their relationship then not only would the appeal have failed under the Rules but following the guidance in Agyarko I would have refused the appeal under article 8 ECHR.
14. However, since that appeal was heard the appellant has now given birth to their daughter. She was pregnant at the time of the last hearing but as that child was not born this was something that had to be ignored.
15. In January 2017 their daughter was born and if this was a new application then at the very least Section EX.1(a) would apply and a reasonableness test would be applied. As the appellant did not meet the requirements of the Rules at the date of application and so I am unable to consider the appeal under section EX.1 but I can consider the appeal under article 8 ECHR.
16. Section 117B(6) of the 2002 Act applies the same test as Section EX.1(a) of Appendix FM of the Immigration Rules. The only difference is that Section 117B(6) is a factor to consider under section 117B of the 2002 Act.
17. Mr McVeetie has not sought to argue that there are any countervailing circumstances in this case. If he had done so then I would have had to consider them alongside section 117B(6) which makes clear “where a person liable to removal has a genuine and subsisting parental relationship with a 'qualifying child' and it would not be reasonable to expect that child to leave the UK. In such cases, the public interest does not require the person's removal from the UK.” ‘Qualifying child’ means a child under the age of 18 and who is a British citizen, or has lived in the United Kingdom for a continuous period of seven years or more.
18. In the circumstances before me and having regard to the previous findings made by the Judge at first instance at paragraphs [13] and [14] I find that it would be unreasonable to expect the child to leave the United Kingdom.
19. The appellant is clearly the primary carer and it is accepted that the financial requirements of the Rules are likely to be met and that there is no adverse immigration history.
20. Having considered the above and the updated evidence I allow the appeal on human rights grounds.

Notice of Decision
21. I find an error in law and set aside the original decision.
22. I dismiss the appeal under the Immigration Rules.
23. I allow the appeal under article 8 ECHR.

Signed Date April 24, 2017

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

I make no fee award because the appeal is allowed based on a change in circumstances.

Signed Date April 24, 2017

Deputy Upper Tribunal Judge Alis