Tribunal decisions

The decision

IAC-AH-VP/DH-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23981/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 December 2016
On 5 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

MORSHADA KHANAM SUMA
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. M. Hasan, Kalam Solicitors
For the Respondent: Mr. P. Armstrong, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Goodrich, promulgated on 25 July 2016, in which he dismissed the Appellant's appeal against the Respondent's decision to refuse to grant leave to remain.

2. Permission to appeal was granted as follows:

"The grounds of application state that the judge failed to consider human rights and this is an error of law. This was raised as a ground of appeal and the grounds state that the 2nd appellant is entitled to a decision on her human rights not only relating to Appendix FM but also outside the Rules.

The judge has not dealt with human rights in his decision."

3. The Appellant attended the hearing. I heard submissions from both representatives following which I announced that I found that the decision contained a material error of law, and that my full reasons would follow.

Submissions

4. Mr. Hasan relied on the grounds of appeal. The main appellant before the First-tier Tribunal, the husband of the Appellant, had been granted ILR following the decision of the First-tier Tribunal. The judge had failed to consider the Appellant's human rights claim, which should have been considered. His failure to make a finding on the Appellant's human rights constituted a material error of law.

5. Mr. Armstrong relied on the Rule 24 response. He submitted that the grounds were little more than disagreement. The judge's findings were open to him. The Appellant had never made an application under human rights or based on long residence. It was not wrong of the judge to conclude that she should have made a human rights application. The Appellant's husband had applied for a Tier 1 visa but then had switched it to a long residence application. The judge was aware of the facts and had addressed them accordingly. The Appellant had never made a human rights application and there were no insurmountable obstacles to her making an application from Bangladesh. As the Appellant did not fall under the ten year Rule she could not succeed as a dependant. She had to make an application in her own right.

6. In response Mr. Hasan submitted that the judge needed to consider whether the application would be successful. Human rights were a live issue in the grounds of appeal. I asked Mr. Hasan whether paragraph 15 of the decision was an accurate recording of his submissions. He stated that, with respect, it was not exactly what he had submitted. He had said that as a ten year residence application could not include a dependant, the appeal in respect of this Appellant should be considered individually.

Error of Law Decision

7. The judge found that the Appellant's husband met the requirement of paragraph 276B and was therefore entitled to leave to remain on the basis of long residence (paragraphs 18 to 21). He therefore allowed the Appellant's husband's appeal.
8. In paragraph 22 he states:

"The second Appellant has not been resident in the UK for 10 years. Her leave has always been as a dependent, the long residence Rules do not cover dependents. It is accepted that she must therefore make a separate charged application under Appendix FM. In this context I dismiss her appeal."

9. I have considered the grounds of appeal which were before the First-tier Tribunal as they relate to the Appellant. In paragraph 1(b) the grounds state:

"The second appellant's matter now falls under D-LTRP.1.1 of Appendix FM of the Immigration Rules because she now meets the requirements contained within paragraph R-LTRP.1.1(a) to (c) of Appendix FM for limited leave to remain as a partner."

10. Further in paragraph 3 of the grounds of appeal before the First-tier Tribunal it states that the decision is unlawful under section 6 of the Human Rights Act 1998. In paragraph 3(b) there is reference to the case of Razgar [2004] UKHL 27. The grounds submit that the decision is disproportionate. In paragraph 3(b) there is reference to the public interest question under section 117B.

11. I find that the judge did not consider the second Appellant's appeal under human rights at all, either under Appendix FM of the immigration rules, or outside the immigration rules. Paragraph 22 contains all of his consideration of her case. He merely states that she should have made a separate application. It is clear from the grounds of appeal that both the Appellant and her husband were appealing against the decision on the basis that it breached their rights under Article 8 ECHR. The fact that the Appellant's husband's appeal was allowed on the basis of long residence did not mean that the judge was entitled not to consider the Appellant's appeal under the immigration rules relating to Article 8, or under Article 8 outside of the immigration rules.

12. It was submitted in the grounds of appeal before the First-tier Tribunal that the Appellant met the requirements of Appendix FM, and also that the decision was a breach of her right to a family under Article 8 outside the immigration rules. The judge failed to deal with this ground of appeal at all. I find that the failure of the judge to address the Appellant's human rights is a material error of law.

13. The Appellant and her husband now have a child. It was agreed between the representatives that it would therefore be appropriate to remit the appeal to the First-tier Tribunal as further evidence would need to be adduced. I have taken account of the Practice Statement dated 10 February 2010, paragraph 7.2. This contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. Given the nature and extent of the fact-finding necessary to enable this appeal to be remade, and having regard to the overriding objective, I find that it is appropriate to remit this case to the First-tier Tribunal

Notice of Decision

14. The decision of the First-tier Tribunal involves the making of a material error of law in respect of the Appellant, and paragraph 22 of the decision is set aside.

15. The decision of the First-tier Tribunal stands in relation to the Appellant's husband.

16. The appeal is remitted to the First-tier Tribunal to be remade.

17. No anonymity direction is made.

Signed Date 4 January 2017

Deputy Upper Tribunal Judge Chamberlain