Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ia/33163/2015
ia/33164/2015
ia/33167/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 March 2017
On 14 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Samreen Khuram
Arisha Khuram
Laiba Khuram
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms Hodgson
For the Respondent: Mr Walker

DECISION AND REASONS
1. The appellants Samreen Khuram (date of birth: 22 August 1997), Arisha Khuram (date of birth: 14 December 2002) and Laiba Khuram (date of birth: 27 January 2010 are citizens of Pakistan. I shall refer to the first appellant as “the appellant”. The appellants appealed against decisions of the respondent dated 2 October 2015 refusing them further leave to remain in the United Kingdom. The appellant had entered the United Kingdom on 7 August 2011 on a Tier 1 (General Partner) visa which remained valid until 7 April 2014. The appellants appealed at the First-tier Tribunal (Judge Borsada) which, in a decision promulgated on 19 January 2016 dismissed the appeal. The appellants now appeal, with permission, to the Upper Tribunal.
2. The appellants’ application under Appendix FM R-LTRP1.1(c) (the five year partner route) was rejected because the appellant had failed to demonstrate the required level of income. As Judge Borsada noted [4] “the appellant accepted that she had provided evidence of her husband’s employment gross annual income 2014 to 2015 instead of 2013 to 2014 and regrets the confusion caused.” Judge Borsada concluded at [6] :
“I note that there is a provision for the respondent to request information when documentary evidence is incomplete but I am not satisfied this is a case where there is any provision for the exercise of a discretion under the Immigration Rules. This is because it is not the central documentary evidence [that] was complete but rather it was entirely missing. I therefore agree with the respondent the appellants’ case cannot succeed under the Immigration Rules as there has been a failure to comply with those Rules.”
Granting permission, Deputy Upper Tribunal Judge Taylor agreed with Judge Borsada (“it cannot properly be argued that the caseworker acted unfairly in not requesting further documentation covering the correct financial year.”). However, Judge Taylor considered that it was arguable that the First-tier Tribunal’s handling of the Article 8 ECHR appeal was flawed. Judge Taylor considered that it was:
“arguable that [the judge’s] brief reference to there being no compelling circumstances outside the Immigration Rules was not adequate. The best interests of the older daughter, aged 15, who has lived in the UK between 2006 and 2009 and from 2011 to date and at a critical point in her education, arguably deserved more attention than was given.”
Judge Taylor also considered that it was necessary for the Article 8 appeal to be considered “in the context...that the appellant could in fact meet the substantive requirements of the Immigration Rules.”
3. I find that the appeal should be allowed. I have reached that decision for the following reasons. I have considerable sympathy with Judge Borsada who dealt with this as a paper appeal. He did not have the advantage of hearing oral evidence or legal submissions. However, Mr Walker, for the respondent, before the Upper Tribunal accepted the judge had been wrong at [8] to conclude there were no compelling circumstances which might justify an assessment of the appeal of Article 8 ECHR grounds. There has been much confusion in this case as to whether the rights of appeal under Section 82 should be those which existed before amendments introduced by the Immigration Act 2014. Judge Borsada does not appear to have had the benefit of seeing a previous determination (12th January 2015) for the same appellants by Judge Butler. The appeal concerned the failure of the appellant to use the correct form for making an application for further leave to remain. In his decision at [14] Judge Butler found that it should have been
“perfectly clear to the decision maker in this case there had been a mistake and the wrong form had been used. Discretion afforded by paragraph 34C(b) should have been exercised by contacting the first appellant to give her the opportunity to correct the mistake. The burden of proof upon the appellant is satisfied.”
He allowed the appeal on limited grounds for reconsideration under the Immigration Rules. Judge Borsada records [1] that although the applications were refused on 2 October 2015 they had originally been “made on 5 April 2014”. The question therefore arose as to whether the appeal could have been allowed under the Immigration Rules, in the circumstances pertaining as at the date of the hearing of this in-country appeal. That was a matter with which Judge Borsada declined to deal.
4. The position becomes even more complicated by the Secretary of State’s assertion that the applications were not made in April 2014 but subsequently when the “correct” form was used by the first appellant to resubmit the same application in August 2015. A further complication then arises because the incorrect accounts for her husband’s business which the first appellant submitted would, by virtue of the later application date, have become the correct accounts for the required tax year (2014-2015). It was vitally important that, before the First-tier Tribunal remakes this decision, the Secretary of State considers these matters and appears at any appeal hearing in the First-tier Tribunal in a position to explain to the Tribunal (a) what she now accepts to be the correct date of the application (b) whether the appeal should be allowed under the Immigration Rules in consequence (c) if she considers that the application was not made until August 2015 why the application was refused, given that the correct documents were provided by the appellant.
5. As regards the decision of Judge Borsada, I find, in the light of Mr Walker’s acceptance that there were compelling circumstances that should have led to a proper and thorough Article 8 analysis, that Judge Borsada has erred in law by failing to carry out such an analysis. He has briefly examined the circumstances of the family at [8] but he has carried out no proper assessment of best interests of the children pursuant to Section 55 of the Borders, Citizenship and Immigration Act 2009. There is force in Judge Taylor’s observation that the best interests of the elder child in particular (now at a crucial stage of her education) have not been adequately examined.
6. It will be for the next First-tier Tribunal to consider any submissions made by the Secretary of State as regards the Immigration Rules. However, if it transpires that the appeal should proceed on Article 8 ECHR grounds only, then it is very important that the appellants provide the Tribunal and the Secretary of State with all relevant and necessary documentation relating to this appeal under her original application.

Notice of Decision

This appeal is allowed. The decision of the First-tier Tribunal is set aside. None of the findings of fact shall stand. The appeal is returned to the First-tier Tribunal (not Judge Borsada) for that Tribunal to remake the decision.

No anonymity direction is made.

Signed Date 13 March 2017

Upper Tribunal Judge Clive Lane