Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/25850/2015
IA/25854/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 27 January 2017
On 20th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

secretary of state for the home department
Appellant
and

SS
JS
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Respondent: Mr M Azmi of Counsel instructed by Crowngate Law Solicitors
For the Appellant: Ms A Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS

Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellants. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Raikes sitting at Birmingham. For ease in following this decision I shall continue to refer to SS and JS as the Appellants. They are mother and daughter and they had appealed against the Secretary of State’s decision to make refuse them further leave pursuant to the Immigration Rules and Article 8 of the European Convention on Human Rights.

2. The Judge of the First-tier Tribunal had allowed the Appellants’ appeal based on the Immigration Rules

3. The Secretary of State’s ground of appeal is headed as being a single ground but is not easy to follow. It can best summarised as follows:

(1) At paragraph 30 of her decision the Judge said that the Appellants could not meet the Immigration Rules under Appendix FM, yet at paragraph 31 she said that they meet the requirements of paragraph 276 ADE(1)(vi);
(2) The First Appellant was born in 1975 and the Second Appellant was born in 2003. Paragraph 276ADE requires the applicant to be over 18 years of age and therefore it was not open to the Judge to consider her case under this route;
(3) Paragraph 33 of the Judge’s decision said that Paragraph 276ADE(vi) applies to both Appellants because, “If removed the Appellants would be unable to maintain the relationship with the father as it stands today and there would be in my view therefore be real difficulties particularly in respect of the child with having to adapt in India.” There was no relationship with the father.
(4) The duty to protect the best interests of the child was wholly unreasoned and there had been a failure to conduct a proportionality exercise.

4. Permission to appeal was granted by First-tier Tribunal Judge Grant-Hutchison.

5. At the hearing before me Ms Aboni made very brief submissions saying that the Judge had misdirected herself in allowing the appeal under Paragraph 276ADE. She said the appeal should be remitted to the First-tier Tribunal for re-hearing. She said there had been no consideration of Article 8 outside of the Rules.

6. Mr Azmi said that when the decision of the Judge is looked at as a whole it would be seen that there was no material error of law. At paragraph 31 the Judge was very clear. The Judge was aware of the sub-paragraphs at ADE. Was the Judge in error in respect of the First Appellant or both Appellants? Mr Azmi said that looking at the “very significant obstacles” matter required consideration of the full facts. The First Appellant would be returning to India on her own. Maybe it would have been better for the Judge to have dealt with the matter separately for each Appellant but that was of no real consequence here. The Judge had referred to the public interest in relation to considering the matter outside of the Rules. Mr Azmi said that I should find that there was no material error of law and that I should uphold the Judge’s decision.

7. Ms Aboni replied to say that there was consideration of the case by the Judge under the Immigration Rules at paragraph 34 and that required consideration of the public interests. She said I should remit the case to the First-tier Tribunal.

8. I had reserved my decision.

9. Paragraph 276ADE, in so far is relevant, provides,

“The requirements to be met by an application for leave to remain on the grounds of private life in the UK are that at the date of the application, the applicant:…

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years…”….

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country tor which he would have to go if required to leave the UK”.

10. The child in this case arrived in the United Kingdom in 2013 and therefore has not been in the United Kingdom for more than 7 years. The difficulty with the Judge’s decision is that although she correctly recognised that because the Appellants had arrived in the United Kingdom only in 2013 and that therefore the child could not meet Paragraph 276 ADE (1) (iv), she went on to say at paragraph 34 that the Appellants did meet Paragraph 276ADE (1) (iv). The Secretary of State rightly points out that (a) Paragraph 276ADE(1)(iv) only applies to those under 18 in any event.

11. I have considered whether there may merely be typographical errors in the decision, but in my judgement, it is quite clear that even by correcting some of the references, the difficulties remain because there is inadequate reasoning of the findings in respect of the “very significant obstacles” which would arise by a removal of the Appellants.

12. Therefore, despite Mr Azmi’s valiant efforts in seeking to persuade me to uphold the Judge’s decision, in my judgment, the Judge did materially err in law for the reasons identified by the Secretary of State. The Judge appears to have confused the requirements of Paragraph 276ADE in respect of the different sub-paragraphs and the Article 8 assessment is wholly deficient. Indeed, the Judge herself said that she did not need to consider the matter outside of the Immigration Rules. The errors are irredeemable and cannot be overlooked as being of a technical nature.

13. I therefore conclude that there will have to be a complete re-hearing of the matter. That re-hearing shall take place at the First-tier Tribunal. It will be a re-hearing in respect of all issues. None of the findings of the Judge shall stand. It will be a matter for the First-tier Tribunal to set any further directions.

Notice of Decision

There was a material error of law in the decision of the First-tier Tribunal.
The Secretary of State’s appeal against it is allowed.
The decision of the First-tier Tribunal is set aside.

An anonymity direction is made.

Signed Date 18 March 2017

Deputy Upper Tribunal Judge Mahmood