Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/43437/2014
IA/43439/2014
IA/43441/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th January 2016
On 20th January 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

MR KAZI MUSHFIQUR RAHMAN (FIRST APPELLANT)
MRS REZIA AHMED (SECOND APPELLANT)
MS KAZI RAISA NOORAEEN (THIRD APPELLANT)
(ANONYMITY DIRECTION NOT MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr P Turner, Direct Access Barrister
For the Respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants are citizens of Bangladesh who appealed against decisions made on 24th June 2013 to refuse their applications for leave to remain in the United Kingdom under the points-based system as a Tier 4 Student and his dependants.
2. The applications were refused and before First-tier Tribunal Judge Wylie it was argued on Article 8 ECHR grounds only that they should be granted leave to remain in the United Kingdom.
3. Judge Wylie dismissed the appeal.
4. The grounds of application narrate that the judge made an unequivocal finding at paragraph 25 of the decision namely that the children were not qualifying children and thus a consideration of Section 117B(6) of the 2002 Act was not required. As the grounds observe the Third Appellant had in fact been in the United Kingdom for seven years, three months and nine days and in the light of that the judge's conclusion that she was not a qualifying child was factually incorrect and amounted to a misapplication of the law. It was said that the judge had failed to properly consider the best interests of the child. Both children were plainly settled here and one of them had a heart problem. In all the circumstances it was inappropriate for the Third Appellant to be removed from the United Kingdom.
5. Permission to appeal was granted. The Secretary of State lodged a Rule 24 notice acknowledging that the judge should have considered whether the provisions of Section 117B(6) applied but any error was not material. The Appellants status was always precarious.
6. Thus the matter came before me on the above date.
7. For the Appellants Mr Turner relied on his grounds indicating that the starting point should be the best interests of the child and that the judge had made a fundamental error concluding that the eldest child was not a qualifying child in terms of the statute. Furthermore as the child had come here in January 2008 a very relevant part of their life had been in the United Kingdom. The judge had made no reference to any relevant jurisprudence relating to how the best interests of children should be dealt with. Nothing was said about the educational and social integration of the children. I was asked to find that there was a material error of law and send the appeal back to the First-tier Tribunal for a fresh decision.
8. For the Home Office Mr Staunton relied on AM (Section 117B) Malawi [2015] UKUT 260 (IAC) and to headnote 5 which supported the proposition that the Appellants status here was precarious. Reliance was also placed on the Rule 24 notice. The judge had gone on to consider the best interests of the children. While there had been a clear error by the judge it was not material.
9. I reserved my decision.
Conclusions
10. It seems clear to me that the judge made a serious error concluding that the "children are not qualifying children and I need not consider Section 117B(6)." The Home Office acknowledge that this is an error but argue that this would have had little effect on the decision.
11. However both parties acknowledged before me that the eldest child was a qualifying child within the meaning of the Act that is to say someone who under paragraph 117D has lived here for a continuous period of seven years or more. The importance of this is reflected in the legislation under paragraph 117B(6) where it is said that in the case of a person who is not liable to deportation (this is not a deportation case) the public interest does not require the person's removal where the person has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom. In my view that was the starting point for the judge namely that he was bound to recognise what Parliament has enshrined in legislation namely that the public interest does not require the person's removal in certain circumstances which may appertain here. In my view the failure to acknowledge the provisions of 117B are fatal to the soundness of this decision in that any decision has to be reached through the prism of what is set down in legislation. That being so it seems to me that decision cannot stand and must be set aside. I observe that there is a Rule 15(2A) application before me. Mr Turner did not urge me to allow it at this stage but confined himself to seeking a fresh hearing before the First-tier Tribunal which seemed to me to represent a sensible way forward.
12. In all the circumstances the decision of the First-tier Tribunal is therefore set aside in its entirety. No findings of the First-tier Tribunal are to stand. Under Section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 the nature and extent of the judicial fact-finding necessary for the decision to be re-made is such that it is appropriate to remit the case to the First-tier Tribunal.
Notice of Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision.

I remit the appeal to the First-tier Tribunal.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge J G Macdonald