Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23678/2015

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On the 7th February 2017
On the 20th February 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
MISS SANJIDA BINTY TAIYAB
(Anonymity Direction not made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Chawdury (Solicitor)
For the Respondent: Mr Nath (Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Appellant's appeal against the decision of First-tier Tribunal Judge Lucas promulgated on the 18th August 2016, in which he dismissed the Appellant's appeal against the Respondent's decision to refuse to grant her Leave to Remain in the United Kingdom as a Tier IV (General) Student Migrant.
2. Within the Grounds of Appeal it was argued that the Judge erred in law by acting unfairly in refusing the requested adjournment on the basis of the Appellant's illness. It was further argued within the Grounds of Appeal the Judge erred in not considering the Appellant's Human Rights claim by applying the five stage Razgar test in respect of Article 8.
3. Permission to appeal has been granted by First-tier Tribunal Judge Osborne on the 5th January 2017, on the basis that it was arguable that in an otherwise succinct and focused decision and reasons, the Judge failed to consider the issue of Human Rights despite it having been raised in the Grounds of Appeal and that it was at least arguable that the Judge should have dealt with the issues on the grounds upon which the Appellant appealed. Judge Osborne found that all the issues raised in the Grounds of Appeal were arguable.
4. In his oral submissions, Mr Chawdury argued that the appeal before First-tier Tribunal Judge Lucas was listed to be heard on the 3rd August 2016 at Taylor House, and that the Appellant's solicitors had received a letter from the Appellant dated the 1st August 2016 seeking for the appeal to be adjourned, in respect of her having attended a walk-in centre, and evidence that she was to have a ferritin test. He further argued that there was an oral adjournment request made on the day of the hearing. He argued that the main issue was the Appellant's English language ability and that she had submitted IELTS scores, but he argued that in an interview conducted by Skype that she had been unable to communicate. He argued the Appellant should have been given the opportunity of addressing those issues and showing that she could speak English at the appeal hearing. He argued that the appeal should have been adjourned and that the decision not to adjourn the appeal hearing was unfair.
5. Mr Chawdury further argued that the Appellant had submitted a statement at the appeal hearing, but he conceded that the same did not really deal with the Article 8 issues and really only dealt with the question as to why she should be granted Further Leave to Remain as a student. He argued that the Appellant would have been able to tell the Court all about her personal life at the appeal hearing. He asked me to allow the appeal.
6. In his oral submissions, Mr Nath submitted that it was perfectly fair for the Judge not to adjourn the appeal hearing in the circumstances of this case and the Judge properly considered all of the relevant factors within his decision and has specifically indicated that there was no evidence to show that the Appellant was medically unfit to attend at the appeal hearing and that the Judge had properly dealt with the issue at [5] of the decision. He argued that the decision was perfectly within the remit of the Judge. He further argued that in respect of Article 8, the statements submitted do not deal with any family or private life in the UK and that had the Appellant wanted to give evidence specifically on those points, that should have been part of the adjournment request that was made at the time of the appeal hearing but he said that was not the basis of the adjournment request and that the Article 8 considerations are simply being added on in an attempt to add substance to the appeal. He submitted that there were no material errors within the determination.
My Findings on an Error of Law and Materiality
7. At the original appeal hearing before First-tier Tribunal Judge Lucas, the Appellant at that stage was represented by Mr Hasan, one of Mr Chawdury's colleagues. It appears that an oral application was made to adjourn the appeal before First-tier Tribunal Judge Lucas, and in support of that application, the Tribunal was provided with an attendance form in respect of the Appellant having attended at that Malling Health Walk-in Centre on the 31st July 2016; a pathology laboratory's request form, indicating that the Appellant had been asked to provide a blood specimen in order for that to be tested for ferratin on Tuesday the 9th August 2016, and a letter from the Appellant herself dated the 1st August 2016, in which she argued that she would not be able to attend Court on the 3rd August 2016 due to her bad health condition and in which she stated that it was getting very hard for her to travel and even to go out of the house, and that she was simply taking bedrest. She had said in that letter that she had miscarried twice one after the other and was struggling to recover from that and that she was having panic attacks. She argued that she had felt that she might be able to make the Court date, but her health condition was getting worse and that she had to attend at the Accident & Emergency service on the 31st July because she had feinted and the next day she had been to her GP, Dr Patel who asked for a full blood count and ferratin test to be taken and that she has an appointment for medical tests on the 9th August and that she would be prescribed medicine as a result.
8. In reaching his decision not to adjourn, First-tier Tribunal Judge Lucas fully taken account of all of that evidence at [3] and [4] of his decision. Having noted specifically at [5] that there was no other medical evidence supporting the application other than the letter from the Appellant herself and the Walk-in Centre attendance form and the pathology laboratory request form for ferratin with the words Tuesday the 9th August 2016 written on it. He further found that there was no evidence at all stating that the Appellant had been found to have been medically unfit to attend at the appeal hearing. The Judge noted she also signed a witness statement dated the 2nd August 2016, just the day before the appeal hearing and he therefore rejected the adjournment request.
9. In that regard, the Judge did not in any way act unfairly in rejecting the adjournment request. The medical evidence submitted by the Appellant did not in itself indicate that the Appellant was actually unfit to attend the appeal hearing, and the Judge was quite perfectly entitled to take account of the fact that there was no medical evidence that the Appellant was medically unfit to attend at the appeal hearing on the 3rd August 2016 before him and the Appellant had been in a position to sign a statement, just the day before on the 2nd August 2016. There was no unfairness in that regard, the Judge did not err and the Judge was well within the remit of his discretion in not adjourning the appeal on that basis.
10. In respect of the ground of appeal that the Judge did not consider the Appellant's Human Rights under Article 8, this was raised within the Grounds of Appeal to the First-tier Tribunal, in that it was stated as one of the four grounds of appeal that "the removal of the Appellant from the United Kingdom in consequence of the Immigration decision would breach the United Kingdom's obligations under the Refugee Convention or will be unlawful under Section 6 of the Human Rights Act 1988 as being incompatible with the Appellant's convention rights", in addition to the Grounds of Appeal arguing that the decision was not in accordance with Immigration Rules, not in accordance with the law and that the person taking the decision should have exercised a discretion differently which was conferred by the Immigration Rules. It was therefore raised as a ground of appeal, but the Grounds of Appeal themselves did not specify any family or private life that the Appellant had established in the UK, but simply dealt with her immigration history and considerations as to why she should have been granted an extension of her Tier IV student visa. I bear in mind in that regard that there is in fact no "right to study" in the UK, although previous studies undertaken, and friendships, and private life formed as a result of having undertaken such study or any relationships formed as a result thereof, can clearly be taken into account as family and private life, the simple request for an extension of the Tier IV student visa did not in itself establish that there was any private or family life of sufficient magnitude such as to engage Article 8 which would be breached by the decision.
11. Further, the statement of the Appellant, which the Judge fully took account of, again simply contained reasons as to why the extension of her visa should be granted, and did not other than asking for the extension, provide any evidence as to any family or private life that she had established during her time in the UK.
12. In that regard, I do find that although the Judge was in error in failing to deal with the Article 8 claim, given that the same had been formally raised by the Appellant within the Grounds of Appeal, I do not consider that that error was material, in that the Appellant herself had not provided any evidence as to any family or private life in the UK within her statement, grounds or appeal or within her supporting documentation, and therefore, even if the Judge had considered the Article 8 claim, it would have inevitably been dismissed due to the lack of evidence in that regard.
13. The decision of First-tier Tribunal Judge Lucas therefore does not disclose any material errors of law and is maintained.
Notice of Decision
The decision of First-tier Tribunal Judge Lucas does not reveal any material errors of law and is maintained. The Appellant's appeal is dismissed.

Signed

R.F.McGinty
Deputy Upper Tribunal Judge McGinty Dated 7th February 2017