Tribunal decisions

The decision

IAC-FH-NL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/44252/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 December 2014
On 27 February 2015
Prepared 20 December 2014

Before

MRS JUSTICE CARR
DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

Secretary of State for the Home Department
Appellant
and

MR mohammad jakiul Huda
(ANONYMITY DIRECTION Not Made)
Respondent

Representation:
For the Appellant: Mr E Tufan, Senior Presenting Officer
For the Respondent: Ms B Poynor, Counsel

DECISION AND REASONS

1. In this decision the Appellant is referred to as the Secretary of State and the Respondent is referred to as the Claimant.

2. The Claimant, a national of Bangladesh, date of birth 1 January 1980, appealed against the Secretary of State's decision, dated 9 October 2013, to make removal directions under Section 10 of the Immigration and Asylum Act 1999, a form IS151A having been served on 14 March 2013, an asylum and human rights-based claim having been refused.

3. The Claimant's appeal came before First-tier Tribunal Judge Morrison ("the judge") who on 18 July 2014 dismissed the appeal under the Immigration Rules but allowed the appeal on Article 8 ECHR grounds.

4. The Secretary of State sought permission to appeal which was granted by First-tier Tribunal Judge V P McDade on 12 November 2014.

5. Incorporated within the Secretary of State's application was an application to extend time for reasons given but First-tier Tribunal Judge McDade, whilst granting permission to appeal, did not deal with the out of time application. We were prepared to accept that time should be extended because of late receipt of the judge's decision.

6. A response on behalf of the Claimant, dated 25 November 2014, resisted the Secretary of State's, grounds.

7. The grounds of appeal followed the Secretary of State's interpretation and understanding of the case law, Nagre [2013] EWHC 720 (Admin) and Gulshan (article 8 - new rules - correct approach) Pakistan [2013] UKUT 640, that there were prior and threshold tests to be established before considering Article 8 ECHR outside of the Immigration Rules.

8. We found most helpful the analysis provided by Huang v SSHD [2007] UKHL 11, MM (Lebanon) [2014] EWCA Civ 985 and MF (Nigeria) [2013] EWCA Civ 1192.

9. We agree that the primary consideration is whether or not the decision was ECHR compliant. Secondly, we are satisfied that Huang [2007] UKLH 11 applied and that in assessing whether or not a claim can properly be sustained on Article 8 ECHR grounds the outcome may well depend on the exceptional or compelling factual circumstances when assessing the proportionality of the Secretary of State's decision.

10. In this case there was no dispute that the Claimant could not meet the financial requirements under the Immigration Rules ("the rules") and similarly did not meet the requirements of paragraph 276ADE of the rules.

11. Initially the judge assessed whether or not returning the Claimant to Bangladesh would lead to an unjustifiably harsh outcome by reference to the following matters. First, the family history of domestic violence and which the children had also been subjected to, and their best interests did not lie in the Claimant being removed. Secondly, the five children, aged at material times 17, 15, 10, 9 and 6, were British citizens who had lived all their lives in the United Kingdom and had no experience of living overseas or having enjoyed family life elsewhere. Thirdly, the judge found that the Claimant was taking an active part in the household and care of the children. Fourthly, the fact that, if the Claimant left the United Kingdom, the consequential impact on the Sponsor's ability to work and care for the younger children meant it was unlikely that the financial threshold for entry clearance of the Claimant would be met in future. Fifthly, the judge also concluded that there would be a very substantial interference in family life if the Claimant was removed.

12. The judge considered the Appellant's was an unusual case. We bear in mind that the Claimant's wife and five children are British nationals, there is a subsisting marriage and there was no evidence of the Claimant becoming a burden upon the taxpayer. He had English language qualifications or skills. In those circumstances, it was argued by Ms Poynor that taking proper account of Section 117A and B of the Nationality, Immigration and Asylum Act 2002, as amended the judge had made no error of law which was material. It was fair to say the judge's decision did not make particular reference to those sections but the judge plainly had in mind the importance of the public interest, from a fair reading of paragraphs 19, 20 and 21 to 24 of the decision.

13. We concluded that the judge had provided adequate and sufficient reasons, even if we would not necessarily have reached the same conclusion. It was not proportionate for the family life to be broken up or interfered with because of the impact on the children and their interests which the judge properly considered: Those were primarily matters of fact for the judge.

14. The Secretary of State's principal attack upon paragraph 17 of the decision. The judge said '? the test is not unjustifiably harsh but whether there are good arguable reasons for making a freestanding Article 8 assessment'. The Secretary of State relied upon her understanding of Nagre. However, the grounds are really directed at establishing there are hurdles to be crossed before Article 8 can be considered. We consider that 'exceptional circumstances', 'compelling circumstance', 'unduly harsh' considerations are all matters relevant to the judgement on proportionality. We concluded that there is no need for a threshold criterion of arguability: per Aikens LJ in MM (Lebanon)[2014] EWCA Civ985 [128-129][174][175]. Rather such factors as compelling, exceptional circumstances together with other factors such as the extent to which the rules take account of circumstances relevant to Article 8, condition the consideration required of an individual's claim under Article 8 outside the rules.

15. We considered the judge's assessment of the issues did not disclose any material error of law. In any event we think proportionality was one of the issues addressed by the parties before the judge and that ultimately the judge did not misapply the law [decision 18-24].

15. There was a challenge by Ms Poynor to Mr Tufan's submissions because he was seeking to widen the grounds of attack on the judge's decision by arguing matters that were not taken up in the original decision or at the original hearing, for example the requirements of care for the Sponsor's mother being met by third parties, a claim of previous deception and the Claimant becoming a burden on the British taxpayer. We were not asked to enlarge the Secretary of State's grounds nor did we think the points of any substance or disclosed any material error of law.

16. We found the balance of the grounds of appeal, [8]-[14] substantially amounted to a simple disagreement with the findings of fact made by the judge and the way they were then applied: These grounds do not disclose any material error of law.

NOTICE OF DECISION.

17. The appeal of the Secretary of State is dismissed. The Original Tribunal's decision stands.

No anonymity direction was sought.

Signed Date

Deputy Upper Tribunal Judge Davey