Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29934/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 30 March 2017
On 12 April 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

Md Shahjahan Ahmed
[No anonymity direction made]
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the appellant: Mr E Anyene, instructed by Malik Law Chambers Solicitors
For the respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Md Shahjahan Ahmed, date of birth 26.3.87, is a citizen of Bangladesh.
2. This is his appeal against the decision of First-tier Tribunal Judge Cockrill promulgated 22.8.16, dismissing on all grounds his appeal against the decision of the Secretary of State, dated 21.8.15, to refuse his application made on 27.2.14 for LTR in the UK on the basis of his family life with Arifa Ahmed nee Miah.
3. The Judge heard the appeal on 8.8.16.
4. First-tier Tribunal Judge Collyer refused permission to appeal on 30.12.17. However, when the application was renewed to the Upper Tribunal, Upper Tribunal Judge Taylor granted permission on9.2.17.
5. Thus the matter came before me on 30.3.17 as an appeal in the Upper Tribunal.
Error of Law
6. I found an error of law in the making of the decision of the First-tier Tribunal such that the decision of Judge Cockrill should be set aside to be remade. I reserved my reasons, which I now give.
7. Applying Qadir, Judge Cockrill found that the Secretary of State failed to establish that the appellant had use a proxy to take his English language test. However, the judge went on in a consideration of the Immigration Rules to conclude that there would not be insurmountable obstacles to continuing family life in Bangladesh, no very significant obstacles to the appellant’s integration there, and no exceptional circumstances to justify granting leave to remain under article 8 ECHR outside the Rules on the basis that his removal would be unjustifiably harsh.
8. The grounds assert that given the findings as to the English language test, the appellant did not fail the suitability test thus his application should have been considered under R-LTRP1.1. In granting permission to appeal, Judge Taylor noted that it was not clear that this point had been put to the judge at the First-tier Tribunal. Nevertheless, Judge Taylor’s view was that many of the points made in the grounds in relation to article 8 amount to a disagreement with the decision. “It is however arguable that the judge did not focus on the position of the qualifying child, a British citizen, and whether it would be reasonable to expect her to leave the UK (See R (on the application of MA & ors [2016] EWCA Civ 705. Her best interests were only referred to in the context of her remaining with her parents and not the loss of her citizenship rights. Moreover, if the appellant could in fact meet the requirements of the Immigration Rules that would be a factor in the proportionality assessment.”
9. I see from the decision that the sections addressing the British citizen child are dealt with very briefly, mainly within [31] and in the context of the appellant’s life in the family unit comprising his wife and child, and largely within a single sentence. There was inadequate consideration of the best interests of the child and the judge failed to adequately address whether it was reasonable to expect the child to leave the UK. The judge also failed to consider this outside the Rules under the provision of
10. In submissions to me, Mr Anyene submitted that the appellant met EX1 of Appendix FM in relation to the child. However, as the appellant did not have sole custody of the child or meet the other eligibility requirements in relation to leave to remain as a parent, EX1(a) does not apply. However, the same reasonableness test arises outside the Rules under section 117B of the 2002 Act, where it is provided that the public interest does not require the removal of a person with a genuine and subsisting parental relationship with a qualifying child where it is not reasonable to expect that child to leave the UK. These were all considerations that were inadequate dealt with in the decision.
11. In the circumstances, I am satisfied that the decision was inadequately reasoned, failed to take into account relevant considerations, failed to apply the Rules correctly, and was thus flawed for error of law, such that it cannot stand and must be set aside to be remade.
Remittal
12. When a decision of the First-tier Tribunal has been set aside, section 12(2) of the Tribunals, Courts and Enforcement Act 2007 requires either that the case is remitted to the First-tier Tribunal with directions, or it must be remade by the Upper Tribunal. The scheme of the Tribunals Court and Enforcement Act 2007 does not assign the function of primary fact finding to the Upper Tribunal. The errors of the First-tier Tribunal Judge vitiates all findings of fact and the conclusions from those facts so that there has not been a valid determination of the issues in the appeal.
13. In all the circumstances, I relist this appeal for a fresh hearing in the First-tier Tribunal, so on the basis that this is a case which falls squarely within the Senior President’s Practice Statement at paragraph 7.2. The nature or extent of any judicial fact finding which is necessary for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2 to deal with cases fairly and justly, including with the avoidance of delay, I find that it is appropriate to remit this appeal to the First-tier Tribunal to determine the appeal afresh.
Conclusions:
14. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law such that the decision should be set aside.
I set aside the decision.
I remit the appeal to be decided afresh in the First-tier Tribunal in accordance with the attached directions.

Signed

Deputy Upper Tribunal Judge Pickup

Dated
Consequential Directions
15. The appeal is remitted to the First-tier Tribunal sitting at Taylor House;
16. The appeal is to be relisted at the first available date;
17. The appeal is to be decided afresh with no findings of fact preserved;
18. The ELH is 2 hours;
19. The appeal may be listed before any First-tier Tribunal Judge, with the exception of Judge Cockrill and Judge Colyer;
Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The outcome of the appeal remains to be decided.

Signed

Deputy Upper Tribunal Judge Pickup

Dated