Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/23623/2015
IA/23626/2015
IA/23627/2015
IA/23624/2015

THE IMMIGRATION ACTS

Heard in Manchester
Decision & Reasons Promulgated
On 27th October 2016
On 14th November 2016

Before

Upper Tribunal Judge Chalkley

Between

Mohammad [H]
Nurunnahar [B]
[M A H]
[A H]
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr A J Rahman of JKR Solicitors
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS

1. The first-named appellant was born on 8th August, 1973 and is a citizen of Bangladesh. The second-named appellant is his wife and the third and fourth-named appellants are his son and daughter respectively. They are all citizens of Bangladesh.

2. The first-named appellant made application for leave to remain in the United Kingdom which was refused by the Secretary of State in a decision of 11th June, 2015. The first-named appellant had entered the United Kingdom on 28th September, 2005 on a student visa which was subsequently renewed until 30th September, 2009. On 29th September 2009, he applied for and was granted leave to remain as a Tier 4 (General) Student until 30th April, 2011 and on 1st April 2011, he applied for leave under Tier 1 and was granted leave until 1st July, 2013. His application for leave under Tier 4 as a General Student was granted on 30th June, 2013 until 30th April, 2015. The basis on which he made his most recent application was that he met the requirements of Appendix FM.

3. The respondent concluded that the appellant did not meet the requirements of the immigration rules, because he had not completed ten years' residence in the United Kingdom. The third appellant, who was born on 11th December, 2005, entered the United Kingdom with his mother on 27th November, 2007. It was suggested that, as at the date of hearing before the judge, he had resided in the UK for more than seven years and it was further suggested that at the date of the decision the first-named appellant had been in the United Kingdom for more then ten years.

4. The appellants appealed the decision of the Secretary of State and their appeal came for hearing before First-tier Tribunal Judge Cruthers on 7th January, 2016. He found that the first-named appellant did not meet the requirements of the Immigration Rules. He considered the best interests of the children and concluded that their best interests were to remain with their parents. He then explained why the appellants could not succeed on Article 8 under the Immigration Rules and at paragraphs 46 to 67 of his determination the judge explained why he did not believe that it would be unreasonable to expect the third-named appellant to leave the United Kingdom.

5. There were several challenges to the judge's decision. During the course of the hearing before me, it was pointed out that in considering the appellants' Article 8 appeal outside the Immigration Rules, it had been urged upon the judge to bear in mind and to take into account in his assessment of proportionality the fact that the first-named appellant had now completed ten years' residence in the United Kingdom.

6. In the judge's Record of Proceedings he records the submissions made to him, including the fact that the first-named appellant had acquired ten years' long residence in the United Kingdom which was a weighty matter to be considered in considering Article 8 outside the Immigration Rules. However, he failed to engage with that argument.

7. Mr Harrison accepted that the first-named appellant appeared to qualify under the Immigration Rules, as at the date of the judge's decision, and it was therefore a material error of law on the part of the First Tier Tribunal Judge not to have considered that fact and taken it into account when undertaking the proportionality assessment.

8. Mr Harrison very fairly and properly indicated that were it to be argued on behalf of the appellants that the first-named appellant's appeal should have been allowed under Article 8 outside the Immigration Rules as at the date of the hearing by the judge, he would have difficulty in opposing that suggestion. In the circumstances I indicated to him that in view of what he had said, that I was proposing to prepare a brief determination, recording that fact and allowing the appeal. He agreed with my suggestion.

9. The decision of First-tier Tribunal Judge Cruthers does contain an error of law which was material to his consideration of these appellants' appeals. He should have taken into account when considering the question of proportionality, the fact that the first-named appellant had, by the time of the hearing of the appeal, completed ten years' lawful residence in the United Kingdom. His failure to do that was an error of law. I set aside his decision and remake it. The first-named appellant had completed ten years' lawful residence by the time of the hearing before Judge Cruthers in January this year. As accepted on behalf of the respondent, the first named appellant would have qualified for leave under the immigration rules. In considering his Article 8 appeal, bearing in mind the Presenting Officer's comments, I find that it would be disproportionate to remove him. The Appellants'
appeals are allowed.

Summary

As accepted on behalf of the Respondent, the First Tier judge erred in law. I set aside his decision. I find that since, at the date of the hearing the first named appellant would have qualified under the immigration rules, it would be disproportionate to remove him. I allow the appellants' appeals.

No anonymity direction is made.

Richard Chalkley
Upper Tribunal Judge Chalkley