Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/26161/2012
IA/26160/2012
IA/26162/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 4 June 2013
On 4 June 2013

Before

UPPER TRIBUNAL JUDGE KEKIĆ

Between

Mrs NASRIN AKTER KHANAM
Mr MOHAMMAD ASSADUJJAMAN
Master AFJ
Appellants
and

SECRETARY OF STATE FOR
THE HOME DEPARTMENT

Respondent

Representation:
For the appellants: Mr D Coleman, Counsel
For the respondent: Mrs S Vidyadharan, Home Office Presenting Officer

DETERMINATION AND REASONS

Background

1. These appeals come before me following the grant of permission to appeal by Designated First Tribunal Judge Garratt on 15 April 2013.

2. The appellants are a Bangladeshi family consisting of husband, wife and son. There is an additional child to whom I shall refer as AFJ 2 (his initials being the same as his brother) who has never had any leave to enter or remain. Their dates of birth are 21 September 1978, 23 April 1973, 15 March 2007 and 13 September 2011. The first appellant arrived here on 25 October 2003 as a student and was joined by her spouse on 30 December 2004. Their children were both born here. Although the first appellant sought an extension as a Tier 4 Migrant, that was refused by the respondent on 30 October 2012, and it was conceded at the hearing that the appellant could not bring herself within the terms of the Immigration Rules. The appeal of the youngest child was found to be invalid by First-tier Tribunal Judge Borsada on 23 November 2012 (IA/26164/2012) and so he is not a party to these appeals. The respondent withdrew the section 47 removal directions at the hearing and the appeals proceeded on Article 8 grounds only. It should be noted that essentially the appellants argued that the first appellant should be allowed to remain to complete her studies because she had invested time and money in them and that her family would kill her if she returned without having done so. The appeals were dismissed by First-tier Tribunal Judge Harrington by way of a joint determination promulgated on 25 February 2013.

3. Permission to appeal was sought and granted on the basis that the judge arguably failed to give adequate consideration to Article 8 issues including the best interests of the minor children.

4. At the hearing before me on 4 June 2013, I heard submissions on whether or not the First-tier Tribunal Judge made an error of law.

5. Mr Coleman argued that there had been an inadequacy of reasoning and a paucity of findings, no consideration of the appellants individually and no due weight given to the length of their lawful residence. He submitted that the main appellant wished to stay and complete her studies and that it would be open to make up her mind about the future once she had completed her studies.

6. In response, Mrs Vidyadharan relied on the decisions in MK (best interests of child) India [2011] UKUT 00475 (IAC) and Shizad (sufficiency of reasons: set aside) [2013] UKUT 00085 (IAC). She submitted that the appellant had accepted she could not succeed under the rules due to her lack of progress and the Article 8 case had been properly addressed by the judge. She took me through the determination pointing out sections where the judge had considered the appellants individually and where the best interests of the child appellant had been taken into account. She submitted that apart from the appellant’s studies no other bases of private life had been put forward. She argued that brevity of reasoning was not an error of law and urged me to uphold the determination.

7. In reply Mr Coleman submitted that brevity should not affect the adequacy of reasoning and that in a case such as this more reasoning was required on the family life aspect of the appeal.
8. At the conclusion of the hearing I indicated that I would be upholding the decision of the First-tier Tribunal Judge and I now give my reasons for so doing.

Findings and Conclusions

9. The basis of the Article 8 claim is that the respondent’s decision interferes with the appellants’ private lives, each of them having rights that must be assessed individually. It is argued that, in respect to the children, the judge failed to consider that “educational welfare as part of the UK education system may point strongly to their continued residence here as necessary to promote those primary interests”. The judge is also criticised for failing to consider the impact upon the family individually and collectively if they were removed to Bangladesh and it is maintained that she did not take into account the period of lawful residence of the appellant, her husband and two children. On the latter point I should say here that the younger child has never had lawful residence. No application was made to regularise his position until the first appellant made her application for an extension.

10. The difficulty with the grounds is that the appellant’s evidence to Judge Harrington was that it has always been her plan to return to Bangladesh after her studies (paragraphs 25(v) and 39(k) and (l) of the determination). In light of that, all arguments put in the grounds about the need for the children to continue their residence here in order to obtain an education and the impact upon them and their parents of removal fall away. The appellant came here to undertake an LLB degree. Eight years later she has not managed to complete it, appears to have abandoned that intention and seeks to remain to follow a diploma course instead. It is plain that having conceded that she could not meet the requirements of the Immigration Rules, she is attempting to circumvent them by arguing that she should be permitted to continue her studies as part of her Article 8 private life. No other aspect of private and/or family life was pleaded before the judge.

11. With respect to the complaint that the interests of the children were not considered, I would refer the appellants to paragraphs 33 and 39(h) where this is specifically addressed. It has to be noted that there was no attempt by the appellants’ representative at the hearing before Judge Harrington to argue that the best interests of the children lay anywhere other than being brought up by their parents (paragraph 33). Indeed, the first appellant comes from a wealthy, educated, professional family and her immediate family as well as her husband’s relatives all remain in Bangladesh. The children would be returning to a comfortable and secure lifestyle with their parents. The youngest is not even two years old. Both would be able to easily adapt. All these matters were properly considered and determined by the judge (paragraphs 39(a)-(n)). There were no submissions made to the judge and there was nothing in the appellant’s oral evidence or indeed her witness statement to indicate that they would face any difficulties on return. In the circumstances I consider the grounds to be fanciful and simply an attempt to circumvent the rules.

12. Contrary to what the grounds assert, the judge was well aware of the duration of the appellants’ residence here (see paragraphs 37, 39(b) and 39(c)) but apart from a job at Tesco, failed studies and a claim to have many friends, none of whom provided any supporting evidence for the appeals, no evidence of any ties to the UK was adduced.

13. The judge came to her conclusions in the context of the appellant’s evidence that she intended to return to Bangladesh. In the light of that evidence she was entitled to find that Article 8 was not breached by the decision as the transition from the UK to Bangladesh would have to be made for the children at some point and sooner rather than later would be less disruptive (paragraph 39(l)). Additionally, contrary to the complaints made in the grounds, the judge assessed the rights of the appellants as individuals (paragraph 40).

14. It seems to me that in fact the judge did properly assess the evidence and that she did address all the matters the grounds allege she disregarded. The claim that the appellant would be killed because she would be returning without having completed her studies was, unsurprisingly, not pursued at the hearing (paragraph 29). The appellant may feel ashamed at returning after eight years without having achieved anything, but that is not a basis for a successful Article 8 claim. The decision is wholly sustainable.

Decision

15. The First-tier Tribunal made no error of law. The decision to dismiss the appeals stands.

Signed:

Dr R Kekić
Upper Tribunal Judge
4 June 2013