Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31842/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 9 March 2017
On 10 March 2017
Prepared on 9 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

N. P.
(ANONYMITY DIRECTION)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Ms Petterson, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant entered the United Kingdom using her own Indian passport with the benefit of entry clearance as a Tier 4 student on 9 November 2009. Her grant of leave to remain as such expired on 10 June 2012.
2. On 9 June 2012 the Appellant applied for a variation of her leave to remain as the dependent partner of a PBS migrant, but that application was refused on 24 October 2012. The Appellant appealed to the Tribunal, and her appeal was heard on 24 August 2016 upon the papers filed by the parties (at her request) and then dismissed on all grounds by First tier Tribunal Judge Fisher in a decision promulgated on 21 September 2016.
3. The Appellant’s application to the First Tier Tribunal for permission to appeal the dismissal of her Article 8 appeal was granted by Judge Hodgkinson on 7 December 2016. The Respondent filed a Rule 24 Notice on 29 December 2016 in which she took issue with the Appellant’s complaints over the approach to the Article 8 appeal, and argued that the decision disclosed no error.
4. Thus the matter comes before me.

The hearing
5. The Appellant did not attend the hearing of her appeal, and has lodged no documents in support since making her application for permission. There is no explanation offered for her absence, and no request for an adjournment of the hearing.
6. I am satisfied that Notice of Hearing was served by first class post on 1 February 2017 on the address given by the Appellant for service in her application for permission. I am satisfied that this has not been returned by the Royal Mail.
7. I am not satisfied there is any basis upon which I could properly adjourn the appeal of my own motion. I am satisfied that having been properly served, and having failed to attend without explanation, I should proceed to dispose of the appeal in the Appellant’s absence.

The Article 8 appeal
8. The Judge noted that the Appellant had a partner in the UK, who was at the date of the hearing without leave to remain in the UK, his leave having been curtailed on 16 August 2013.
9. There was no evidence offered by the Appellant to suggest she had a child in the UK.
10. The Judge concluded therefore, correctly, that the Appellant’s ability to enjoy any “family life” with her partner would be unaffected by the decision to refuse her leave, and to remove her.
11. There was no evidence offered as to the nature or quality of the “private life” that the Appellant enjoyed in the UK, and no suggestion that her removal would affect her physical or moral integrity. In the circumstances the Judge appears to have concluded that the decisions under appeal did not engage the Appellant’s Article 8 rights. Such a conclusion was certainly well open to him. Even if the Judge had not reached such a conclusion he would have been obliged, when considering the proportionality of the removal of the Appellant to consider section 117A-D of the 2002 Act as part of his assessment. He would have been obliged therefore to conclude that the Appellant’s immigration status in the UK had always been precarious, and that she gained little assistance therefore from the terms of section 117B. He would have been obliged to bear clearly in mind the public interest in the maintenance of effective immigration controls. He would have been obliged to note that the Appellant and her partner had each grown up to adulthood in India, where they had been educated. Indeed as Indian nationals they had spent by far the majority of their lives there, and there was no evidence to suggest they would have any difficulty in returning to their families and friends there in safety. There was no evidence to suggest the existence of any insurmountable obstacles to them continuing their married life together in India.
12. In the circumstances the Judge’s conclusion on the Article 8 appeal was well open to him on the evidence, and it was adequately reasoned. Notwithstanding the terms in which permission to appeal was granted there was in my judgement no error in the approach taken to the Article 8 appeal. Even if the Judge ought to have gone on to assess the proportionality of the decision under appeal there was no material placed before him that would have allowed any decision upon the appeal other than that which he reached; ie for its dismissal. There is therefore no material error of law in the Judge’s approach to the Article 8 appeal.

Conclusion
13. There is therefore no error of law that requires the decision to be set aside and remade.

DECISION
The decision of the First Tier Tribunal which was promulgated on 21 September 2016 contains no error of law in the decision to dismiss the Appellant’s appeal which requires that decision to be set aside and remade, and it is accordingly confirmed.

Deputy Upper Tribunal Judge JM Holmes
Dated 9 March 2017

Direction regarding anonymity – Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until the Tribunal directs otherwise the Appellant is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify her. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.

Deputy Upper Tribunal Judge JM Holmes
Dated 9 March 2017