Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/40549/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29th July 2016
On 8th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant in the Upper Tribunal
and

MAJIDA NISHA MARAJH
(ANONYMITY DIRECTION NOT MADE)
Claimant

Representation:
For the Secretary of State: Mr L Tarlow, Home Office Presenting Officer
For the Claimant: Miss A Kouma, Migrant Legal Action

DECISION AND REASONS
1. This is the Secretary of State's appeal against the decision of First-tier Tribunal Judge Chowdhury promulgated on 13th January 2016, in which she dismissed the Appellant's appeal under the Immigration Rules, but allowed the Appellant's appeal under Article 8 of the ECHR in respect of her family and private life in the UK. For the purposes of clarity in this appeal, as it is the Secretary of State's appeal, I shall refer to the Appellant before the First-tier Tribunal, Mrs Marajh, as being "the claimant" and the Respondent before the First-tier Tribunal as being "the Secretary of State".
2. The Secretary of State has appealed against the decision of First-tier Tribunal Judge Chowdhury on two grounds.
3. The first ground alleged that there was a perverse or an irrational finding on a material matter, in respect of the findings that the judge made regarding the acceptance by the judge that the housing association was aware the presence of the Claimant at her sponsor's address and it was argued that the housing association would not have actually agreed for the tenant to be residing in breach of its own tenancy agreement and that the judge's finding in this regard was irrational.
4. Permission to appeal was not granted by First-tier Tribunal Judge Robertson in respect of that first ground and I am grateful to Mr Tarlow on behalf of the Secretary of State for agreeing that that ground of appeal is not being pursued today. .
5. However in respect of the second ground of appeal, it is argued that the First-tier Tribunal Judge materially erred in law in respect of the Claimant's Article 8 case, outside of the Immigration Rules. Firstly, it is argued that in effect that there would have to be compelling reasons before a judge will go on to consider an appeal outside the Immigration Rules. However of course as far as any question about an intermediate test is concerned, again I am grateful to Mr Tarlow for agreeing that that part of the Grounds of Appeal were not being pursued as clearly an argument that there needs to be an intermediate test is contrary to the findings of the Court of Appeal in the case of MF (New Rules) Nigeria [2013] EWCA Civ 393 where the Court of Appeal made it clear that there was no intermediate test and that the Tribunal has had to consider whether or not an Claimant was entitled to succeed under the Immigration Rules and thereafter if everything was dealt with under the Rules to simply say so, but if, not to go on to consider the claim outside of the Immigration Rules in respect of Article 8.
6. However as has been made clear by the Court of Appeal in the case of SS (Congo) v Secretary of State [2015] EWCA Civ 387 when considering that claim outside of the Rules in circumstances where someone was not liable to deportation, there would have to be what was said to be compelling circumstances to justify a grant for leave to enter or remain outside of the Immigration Rules.
7. Next, it is argued within the second ground of appeal, the judge failed to consider the Article 8 case through the prism of the Immigration Rules. In this regard, Miss Kouma, solicitor for the Claimant, conceded that the First-tier Tribunal Judge has not looked at the Claimant's Article 8 case in this case through the 'prism' or 'through the lens; of the Immigration Rules. Although it was agreed before the First-tier Judge that the Claimant did not meet the requisite requirements of the Immigration Rules, there was actually no consideration given by the First-tier Tribunal Judge Chowdhury herself as to what those requirements actually were or as to the extent to which the requirements either were or were not met.
8. When considering the question of the Claimant's Article 8 claim outside of the Rules this still has to be considered through the 'prism' or through the 'lens' of the Immigration Rules and in that regard the court has to have consideration as to the extent to which the Rules either are or are not met and the reasons therefore, in considering the question of proportionality. What appears to have happened in this case is that First-tier Tribunal Judge Chowdhury noting that the Rules were not met simply has then gone on to conduct a freewheeling consideration of Article 8 without reference at all to the Rules themselves.
9. Permission to appeal has been granted on this basis by First-tier Tribunal Judge Robertson who raised concerns regarding the fact that the judge, in not considering the Article 8 claim outside the rules through the lens of the Immigration Rules, had not set out the requirements for example of paragraph E-ELTRP1.10 of Appendix FM, as to whether or not there were good reasons as to why the Claimant and his spouse had not been residing together for a certain period of time and that there was no consideration given under the Rules, as the extent of compliance with paragraph EX1(b) of Appendix FM, as to whether or not there would be very significant obstacles to family life continuing outside of the UK.
10. It has been conceded quite properly on behalf of the claimant by Miss Kouma that the First-tier Tribunal Judge has not considered the Article 8 outside of the Immigration Rules through the prism of the Immigration Rules themselves and that this does amount to a material error of law. I therefore do find that there was a material error of law in the decision of First-tier Tribunal Judge Chowdhury, in not considering the extent to which and the reasons why the Immigration Rules were not met, in particular she has failed to take account of, inter-alia, paragraph E-LTRP1.10 of Appendix FM and paragraph EX1 (b) of Appendix FM, and then has not considered the Article 8 claim outside of the Immigration Rules through the lens of the Immigration Rules.
11. Further, in consideration of the Article 8 claim outside of the Immigration Rules, it is also clear when looking at the decision of the First-tier Tribunal Judge that although she makes reference to Section 117 of the Immigration Act 2014 at paragraph 47 of her decision, the judge at paragraph 48 then goes on to find that the Claimant has a strong
"... family life here and developed important social connections within the UK and has a significant private life here. Certainly the bond she has not only with friends who attended court to give evidence in support of her appeal have only got stronger."
12. However the judge has not actually considered Section 117B(5) and that pursuant to that subsection, little weight should be given to a private life developed at a time when the Claimant was in the UK at a time when her status was precarious in that her ability to remain in the UK required a further grant of leave.
13. That has not been considered by the First-tier Tribunal Judge and again it has properly been conceded by Miss Kouma on behalf of the claimant that again also amounts to an error of law.
14. Ms Kouma also properly concedes that in those circumstances the judge's consideration of the Article 8 case outside of the Immigration Rules does contain material errors of law that may have affected the outcome of the Article 8 consideration had those errors not been committed.
15. I therefore find that the decision of First-tier Tribunal Judge Chowdhury does contain material errors of law and I find that the decision should be set aside.
16. Although it has been initially argued before me that there would be some preserved findings of fact, given that the First-tier Tribunal Judge has not actually looked at the Article 8 consideration through the prism of the Immigration Rules as was then conceded by representative for the claimant, it would be appropriate rather than making preserved findings of fact for the entire case to be looked at again including as to whether or not there was a genuine and subsisting relationship and also the intent to live permanently together, so that the Article 8 claim can be properly considered through the lens of the Immigration Rules.
17. As far as the second argument raised within Rule 24 reply that the judge failed to consider the application on the basis of the Secretary of State's own policy in respect of discretionary leave, given that it is said that the Claimant had previously been granted discretionary leave for a period of three years and therefore failed to consider it under the discretionary policy applicable before 9th July 2012. That in itself rather than being a Rule 24 response effectively amounts to a ground of appeal and the Claimant did not seek leave to cross-appeal and therefore I have not considered the appeal on that basis.
18. However of course that does not prevent that argument being run before the First-tier Tribunal given the case is going to be remitted to the First-tier Tribunal.
Notice of Decision
The decision of First-tier Tribunal Judge Chowdhury I find does contain material errors of law and is set aside.
The case is remitted back to the First-tier Tribunal for rehearing before any First-tier Tribunal Judge other than Judge Chowdhury.
It has not been argued before me that the claimant should be entitled to anonymity and therefore I do not make any anonymity direction.

Signed Date 29th July 2016

Deputy Upper Tribunal Judge McGinty