Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/28197/2015
IA/28210/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th April 2017
On 25th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mr Sobindra Bahadur Malla (first Appellant)
mrs Deepa Baniya Malla (second Appellant)
(no ANONYMITY DIRECTION made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Miss Malhotra, Counsel
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellants are respectively husband and wife born on 16th June 1988 and 27th June 1990. The Appellants’ immigration history states that they were granted entry clearance as a student and dependent spouse on 4th April 2011 until 6th August 2012 subsequently entering the UK on 17th April 2011. That leave was extended until 12th April 2015 but was curtailed on 26th November 2013 when they were given until 25th January 2014 to make a fresh application. Thereafter they were granted leave as a student and dependant until 20th May 2015 but that leave was curtailed on 2nd March 2015. The subsequent application was refused by Notice of Refusal dated 29th July 2015.
2. The Appellants appealed and the appeal came before Judge of the First-tier Tribunal O’Flynn sitting at Harmondsworth on 27th September 2016. In a decision and reasons promulgated on 10th October 2016 the Appellants’ appeals were dismissed on human rights grounds under Article 8 and under the Immigration Rules.
3. Grounds of Appeal were lodged to the Upper Tribunal. Those grounds contended that the factual circumstances of the Appellants constituted compelling circumstances and further or alternatively that the First-tier Tribunal Judge had misapplied the decision in SS (Congo) and Ors [2015] EWCA Civ 387.
4. On 16th February 2017 Judge of the First-tier Tribunal P J M Hollingworth granted permission to appeal. He considered that it was arguable that the judge should have proceeded to consider the application of the relevant criteria in relation to Article 8 outside the Rules and that it was arguable that sufficient evidence had been adduced despite the credibility findings of the judge and that the judge had considered factors relevant to proportionality as if a consideration of whether there would be a breach of Article 8 outside the Rules had been embarked upon in contradiction to an assessment of the existence of factors which would enable such a consideration to be embarked upon in the first place. Judge Hollingworth considered that in these circumstances that the factors relevant to proportionality as to whether compelling circumstances existed, may not have been fully analysed.
5. On 2nd March 2017 the Secretary of State served a response to the Grounds of Appeal under Rule 24 concluding that the judge was entitled to find that the fact there were no compelling circumstances on the basis of the Appellant’s father being a government employee and that the judge had also properly considered Article 8.
6. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellants appear by their instructed Counsel Miss Malhotra. The Secretary of State appears by her Home Office Presenting Officer Mr Bramble.
7. Miss Malhotra notes the circumstances of this case and points out to me that the judge has referred to the medical evidence. She acknowledges that this is an appeal in which the only extant issue is whether or not there has been a proper exercise of judicial discretion and analysis looking at Article 8 outside the Rules only. She accepts that the Appellants cannot succeed under the Immigration Rules. She asked me to look generally at the situation in Nepal and that the judge has given consideration to health issues of the second Appellant and that that has to be looked at alongside the situation that currently exists in Nepal and the factual circumstances in which these Appellants find themselves which she submits means that the judge has erred in his findings as to what constitutes compelling circumstances.
8. Mr Bramble points out that the decision is well reasoned. He acknowledges that it is accepted that the Appellants are victims of the appalling earthquake that took place in 2012 and that the judge has noted comments made from the Appellant’s instructed psychiatrist Dr Lawrence. The judge has expressed concerns over the credibility of the position of the second Appellant’s father and I am specifically referred to paragraphs 22 and 23 of his findings. Mr Bramble points out that the judge has looked at the findings in the round and has considered the objective position that the parties would be faced in Nepal. He concludes that the judge has done a thorough job and that there is nothing to say that in this case there are compelling circumstances.
9. By way of brief riposte Miss Malhotra does point out that, so that I am aware of the present situation that the second Appellant has now, since October 2016, been taking antidepressants and is attending for counselling albeit that such facts were not before the First-tier Tribunal Judge. She also points out that the judge has noted that there is little to be optimistic about the mental health services that are to be found in Nepal and asked me to give due consideration to these factors.
The Law
10. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
11. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Material Error of Law
12. Nobody can have anything but sympathy for the circumstances in which the Appellants find themselves. Further this fact is noted in considerable depth in a most sympathetic decision by the First-tier Tribunal Judge. He has noted that if the Appellants are returned to Nepal they would be exposed to the hardships as a result of the earthquake that had taken place earlier in 2015. However he also noted the Secretary of State’s comments that the Appellants would not suffer any greater hardship than any other people within that country. It is acknowledged that the Appellants’ family home was destroyed in the earthquake that struck Nepal on 25th April 2015 and that the news was very distressing and depressing for both of them and that they discovered that their family were alive but living in tents and still do. They concluded that as a result of these circumstances returning to Nepal was not an option for them.
13. It is clear that the second Appellant’s mental health has suffered. The First-tier Tribunal Judge had the benefit of an extensive report from Dr Robin Lawrence a consultant psychiatrist and he has noted at paragraphs 8 to 12 findings within that report. He further had the benefit of the oral testimony and comments made by the second Appellant regarding her father’s employment.
14. The judge has clearly considered the evidence and he has made detailed findings and conclusions which begin at paragraph 17 and go on extensively over a number of paragraphs concluding at paragraph 31. Therein the judge has looked at Article 8 outside the Rules, has followed the assessment process set out in SS (Congo) and has thereafter from paragraph 20 gone on to consider whether there are compelling circumstances. He has looked at the objective evidence produced at paragraphs 21 and 22, has considered the report of Dr Lawrence at paragraph 23 and has noted discrepancies between the second Appellant’s evidence and that of her husband set out at paragraph 24. Thereafter he has gone on in some very considerable detail to consider the current state of mental health services in Nepal and has concluded at paragraph 26 that there is little to be optimistic about in considering the availability of such services.
15. This is a judge who overall has given a very full and detailed consideration of the family situation both in the UK and in Nepal, has given very detailed consideration to the mental health of the second Appellant and has given a full and detailed reasoned explanation as to why he considers that the Appellants do not meet the criteria for showing compelling circumstances for allowing this appeal under Article 8 outside the Immigration Rules.
16. There is nothing in the Grounds of Appeal nor Miss Malhotra’s submissions that do anymore than merely disagree with those findings. This is a well reasoned decision. The judge has given a full and detailed explanation as to his reasoning. As such this is a decision that discloses no material error of law and the submissions made on the Appellants’ behalf both in writing and orally amount to no more than a mere disagreement with the findings of the First-tier Tribunal Judge. In such circumstances the Appellants’ appeal is dismissed.
Notice of Decision
The decision of the First-tier Tribunal Judge discloses no material error of law and the Appellants’ appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.
No anonymity direction is made.

Signed Date 24th April 2017

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 24th April 2017

Deputy Upper Tribunal Judge D N Harris