Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: Ia/27523/2015
ia/27529/2015
ia/27539/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1st December 2017
On 9th January 2018

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

MRS RAMANDEEP
MR JAGTAR
MISS S M
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

Secretary of State for the Home Department

Respondent

Representation:

For the Appellants: Not present or represented
For the Respondent: Ms Z Ahmad (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal by the three Appellants in this case against a Decision and Reasons of First-tier Tribunal Judge Manyarara promulgated on 23rd December 2016. The appeal before the First-tier Tribunal was determined on the papers at the request of the Appellants as indeed it is today, a letter having been received asking that it be dealt with on the papers. The Appellants are partners and their child, a little girl born in January 2012. They had made application for leave to remain on human rights grounds that was refused by the Secretary of State.
2. The background to this appeal is that in June 2013 the first Appellant, the woman, made an application for leave to remain as a Tier 4 Student. That was refused with a right of appeal. An appeal was lodged but then withdrawn on the basis that the Secretary of State was going to reconsider the application. Then the college was closed and the first Appellant was given the usual 60 days to find a fresh Sponsor and submit a fresh application. Then, and because of further difficulties, the Secretary of State gave a further extension for her to submit her fresh application.
3. The female adult Appellant arrived in the UK in 2011. Her partner arrived it would appear at the same time.
4. The Judge, in considering the application looked at it only on the basis of human rights, as she was required to do, and did so through the lens of the Rules. She looked first to see whether the requirements for leave to remain as a student were met. The judge found that the first Appellant could not succeed on that basis and then looked at Appendix FM. She found that neither of the first or second Appellant could meet the requirements of Appendix FM as partners or as parents. The judge then looked at paragraph 276ADE in relation to all three Appellants and found that they could not meet those requirements either. It was reasonable to expect the child, who was 5 years old at the time, to return to India with her parents and there were no very significant obstacles to the adult Appellants being integrated into India on return. The judge gave considerable thought to the situation of the two adults and their ability to resettle and make a living in India and found that they would have no difficulty in doing so.
5. What the judge did not do and the only ground upon which permission was granted was consider specifically Section 55, the best interests of the child. I have looked through the file and the bundle of documents that was before the First-tier Tribunal. There are statements from both the adult Appellants which concentrate in the main on their wish to study. There is nothing whatsoever in the statements or other evidence that the best interests of the child require her to remain in the UK. There is nothing in any of the evidence to indicate that her best interests lie anywhere other than continuing to live in the family unit with her parents, wherever that may be, and if the parents can without difficulty integrate to the country of their nationality, India, there is no reason why the child cannot either. Therefore, although failing to consider Section 55 is an error of law I find it is not material because on the evidence before the judge and of course the judge was dealing with it on the papers as am I, there is nothing to indicate that the result could have been any different on the available evidence and therefore the error is not material. Accordingly the appeal to the Upper Tribunal is dismissed.

Notice of Decision

The appeal is dismissed

No anonymity direction is made.

Signed Date 8th January 2018

Upper Tribunal Judge Martin

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 8th January 2018

Upper Tribunal Judge Martin