Tribunal decisions

The decision

IAC-fH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/30500/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 December 2016
On 13 January 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

Secretary of State for the Home Department
Appellant
and

MR MD AHEYA HUSSAN
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: Mr K Alim, Counsel instructed by Yaqub & Co Solicitors

DECISION AND REASONS
1. On 19 August 2016 First-tier Tribunal Judge O'Rourke allowed the appeal of the respondent (hereafter the claimant), a citizen of Bangladesh, against a decision made by the appellant (hereafter the SSHD) on 27 August 2015 refusing him leave to remain on the grounds that removal would not place the UK in breach of its obligations under the Human Rights Act 1998.
2. The SSHD's grounds were essentially two-pronged. It was argued firstly that the judge had erred in contending that the SSHD had failed to prove her allegation of deception. Secondly, it was submitted that the judge's conduct of the Article 8 balancing exercise failed to take account of all relevant factors when assessing whether it was reasonable to expect the oldest child to return to Bangladesh as part of the family unit.
3. I am grateful for the concise submissions I received from both representatives.
4. I have no doubt that the FtT judge materially erred in law in his treatment of the issue of deception. By virtue of the principles established in Majumder and Qadir [2016] EWCA Civ 1167 the judge was required to firstly consider whether the SSHD had discharged the initial evidential burden of proof and secondly, (assuming she had), whether the claimant had been able to discharge the evidential burden then falling on him to provide an innocent explanation. It is clear that in undertaking this two-stage exercise a judge is required to have regard not just to what the SSHD has been able to produce by way of generic evidence, but also whether she has been able to produce by way of evidence relating specifically to an individual appellant/applicant. In the claimant's case, there was both generic and specific evidence and the latter comprised a spreadsheet identifying that the claimant had used a proxy on two separate occasions: one in 2011 at Elizabeth College and another in 2012 at Sevenoaks College.
5. In relation to the generic evidence, the judge cannot be criticised for attaching significant weight to the report of Dr Harrison, as his evidence had been found compelling by the Court of Appeal. However, in the instant appeal there was also a report, reaching different conclusions, from Professor French and the judge was required to at least explain why he did not consider it displaced or modified the weight he attached to the evidence of Dr Harrison. His stated reasons for not even considering it (that "it is generic and therefore not specific to this appellant: secondly it was not before the UT [in SM and Qadir [2016] UKUT 00229 (IAC)] and, thirdly, there is no evidence to counter it from Dr Harrison"), were erroneous. Dr Harrison's was generic yet that did not stop him or the UT/Court of Appeal considering it. Generic evidence was relevant and to accept it from Dr Harrison and not also Professor French was inconsistent. The fact that Professor French's report was not before the UT in SM & Qadir was not a reason for failing to consider it in this (later) appeal. If the judge felt he needed evidence in response from Dr Harrison, he should have adjourned.
6. In relation to the specific evidence, it does not appear that the judge had any or sufficient regard to it at all. Further, the reasoning for his statement at [16(iii)] that he was satisfied the claimant had not used deception is extremely difficult to fathom -
(i) because the claimant himself had nowhere provided a specific statement of why he considered he could not have used a proxy on those two occasions; and
(ii) because at the hearing the claimant said no more about the matter than that he had taken the tests. He said nothing, for example, regarding his studies and their contents.
7. In light of the guidance given by the Court of Appeal in Majumder and Qadir, I consider that the judge's treatment of the issue of deception was seriously flawed and vitiated by legal error.
8. Given the nature of the judge's error in relation to the issue of deception, I consider that his treatment of the claimant's Article 8 circumstances under the Rules must also be regarded as unsafe, since it is clear that his view that the claimant had not used deception heavily coloured his approach to his assessment of reasonableness under the Rules and outside the Rules. His assessment at [16(iii)] contains no reference to public interest considerations which, if the judge was wrong about the deception issue, should have loomed large. It is clear from the Court of Appeal decision in MA (Pakistan) [2016] EWCA Civ 705 that when considering reasonableness a judge must have regard to the public interest in the maintenance of immigration control and the immigration history of a qualifying child's parent is a relevant consideration in this context.
9. For the above reasons I conclude that the FtT judge erred in law and his decision is set aside.
10. On the hypothesis that I found the FtT judge had erred in law both parties were in agreement that the proper course would be to remit it to the FtT. I agree. As regards the issue of deception, it is clearly necessary for there to be further examination at a hearing of the claimant's claim not to have used proxies on two occasions. It is also apparent that in order to decide whether the claimant met the requirements of the Immigration Rules, the FtT will need to examine the question of reasonableness in the light of the criteria set out by the Court of Appeal in EV (Philippines) [2011] (approved by the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705 at [48]). Further, it will be of particular importance for the FtT to have the opportunity of hearing evidence from the claimant's wife as to the nature of is contact with her child.

Notice of Decision
The appeal against the FtT decision is allowed. The case is remitted to the First-tier Tribunal to be heard by a judge other than Judge O'Rourke.
No anonymity direction is made.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal