Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30234/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30th November 2016
On 22nd December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE

Between

mr istiaque ahmad
(anonymity DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Harris, Counsel instructed by Barnes Harrild & Dyer Solicitors
For the Respondent: Mr C Avery, Home Office Presenting Officer

EXTEMPORE
DECISION AND REASONS
1. The Appellant appeals a decision of Judge Suffield-Thompson promulgated on 28th June 2016. He is a Bangladeshi national who arrived in the United Kingdom as a Tier 4 (General) Student. His leave was curtailed on 22nd April 2014 and expired on 21st June 2014. He applied for leave as a Tier 4 Student on 10th June 2014 and the application was refused on 14th July 2014. He then applied for leave under the Family and Private Life Provisions on 28th November 2014 and that was refused on 3rd February 2015. That refusal was the subject of the appeal at the First-tier Tribunal.
2. Judge Suffield-Thompson found that the Appellant did not meet the Immigration Rules relevant to spousal and parental applications on the basis that there were no insurmountable obstacles as to why his family could not relocate with him to Bangladesh. In reaching that conclusion the judge took into account the evidence that the difficulties that the Appellant's UK spouse asserted would follow in the event that the family relocated to Bangladesh, but concluded that they were not sufficient to amount to insurmountable obstacles. The judge also considered whether the Appellant, despite failing to meet the substantive requirements of the Rules, should nonetheless be granted leave to remain outside of the Rules on the basis of the strength of the family life with his spouse. On that question the judge noted that the Appellant could return to Bangladesh and make an application for a spousal visa, in which context it was open to his wife to remain in the United Kingdom, the judge having rejected the evidence that she would be unable to manage in the United Kingdom without her husband.
3. The grounds upon which permission were granted complain that in reaching her conclusions the judge failed to take into account that the Appellant met the status requirements of the relevant Immigration Rules and that if the judge had done so then a different result may have obtained. In addition, before me, Mr Harris added a gloss on that ground by asserting that requiring the Appellant to return to Bangladesh was no more than a requirement to meet a formal condition, so that it was in any event disproportionate in light of his wife's circumstances in the United Kingdom, and the nature of their relationship.
4. I find that the judge did not make any material errors of law in her decision.
5. Firstly it is quite clear that in reaching her conclusion in respect of the Rules she took no adverse point in respect of the status issue now set out. At best the point relates to whether or not the gateway to EX.1 was available to the Appellant and in that context it is quite clear from the judge's consideration of the matters set out at EX.1 that the judge fully appreciated that the avenue was open to the Appellant. In that context, it is incoherent to suggest that she was not aware of the fact that the Appellant had met the gateway requirements of the suitability and immigration status provisions of the Rule.
6. Secondly so far as the judge's assessment of the proportionality of the removal decision, in the context of whether or not the Appellant ought to return to Bangladesh in order to make an application from abroad, the judge has correctly self-directed both in respect of the Rules and in respect of Article 8, and the decision which she has reached was open to her on the evidence before her. Nothing in the grounds or submissions before me reveals any perversity in her conclusion.
7. For all those reasons I am satisfied that the decision of the First-tier Tribunal reveals no error and it stands.
Notice of Decision

The appeal before the Upper Tribunal is dismissed. The decision of the First-tier Tribunal dismissing the Appellant's appeal stands.

Anonymity not having previously been ordered in the First-tier Tribunal and there being no application to do so now, I see no reason to make such an order.

Signed E Davidge Date 21 December 2016

Deputy Upper Tribunal Judge Davidge