Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/45321/2014

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 4 November 2016

Prepared on 4 November 2016
On 23 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

tahir khALIL
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr C Bates, Senior Presenting Officer
For the Respondent: Mr Haq, Solicitor on behalf of Harrison Green Solicitors

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 Pakistan, date of birth 1 September 1991, appealed against the Secretary of States' decision, dated 23 October 2014, to refuse to vary leave to remain and to make removal directions under Section 47 of the Immigration, Asylum and Nationality Act 2006.
3. The appeal came before First-tier Tribunal Judge Somal (the judge) who, on 5 May 2015, rejected the appeal on immigration grounds but allowed the appeal under Article 8 of the ECHR. The judge did not expressly deal with the issue of removal directions which had been made under Section 47 of the Immigration, Asylum and Nationality Act 2006. However, it seems to me that that decision was contingent on the fact that he was allowing the appeal and therefore removal was not in fact in issue.
4. On 13 May 2015 I found that the original Tribunal judge had made an error of law in failing to properly address the question whether Article 8 ECHR should be looked at outside of the Rules for there was no identification of any exceptional or compelling circumstances other than the view in effect that the judge had formed that the appeal succeeded under Article 8 and it was therefore proportionate.
5. The matter was adjourned for further consideration by me and to hear submissions on whether there were exceptional circumstances to justify consideration of Article 8 outside of the Rules.
6. In short the following points are taken: that the factual matters that were before the judge: for the Claimant was in the United Kingdom as a student, was married to a British national, she had circumstances which warranted her removal and were added to by the fact that the Claimant's wife, Mrs Begum, who is now the mother of a child born on 11 January 2016. The child is a British national. In effect it was said that it was unreasonable and exceptional to expect her to leave her family and settled circumstances in the United Kingdom to go to Pakistan with her newborn child. Further, she needs to have a cornea operation which requires her presence in the United Kingdom.
7. Thirdly, it is said that in a point that "had not previously been raised" there may be potential difficulties because the Claimant's family is not sympathetic to the marriage and would be unwilling to provide the kind of support and recreational help on a return. Finally Mrs Begum is capable of returning to full-time employment and in any event it is said that benefits which she could have or working part-time are her entitlement and not a general cost to the United Kingdom.
8. Additional matters were the Claimant's evident intelligence, his fluency in English and his educational achievements and that he is capable of finding employment although neither in Pakistan nor in the United Kingdom has he worked. It is therefore said in effect that also the child's best interests as a British national remain in being in the United Kingdom.
9. It is said on behalf of the Secretary of State that the employment of Mrs Begum is neither here nor there. It is a neutral factor, it simply demonstrates that the Claimant would not be, as he has been, a burden upon the tax payer. Secondly, it is said that his status has been precarious in the past as a student and has remained in effect precarious because he has had no settled status and that the relationship was entered into and during the time remained so. Further it is said, that the medical treatment is not of the kind that is reflecting life threatening circumstances and in any event it is said the Claimant's wife can remain for the purposes of her eye cornea treatment if that proceeds.
10. Finally it is said the child is very young at the present time and his natural companion is its mother. The family unit as a whole can be in Pakistan and if there comes a time when they would wish the child to be educated in the United Kingdom the appropriate application can be made. It is therefore said that the matters originally before the judge, had he properly considered them, did not and those additional matters that have now arisen and reflected in a bundle that has helpfully been provided with additional statements does not show that there are any exceptional circumstances to warrant looking at Article 8 ECHR outside of the Rules.
11. As a result of one of my questions I am satisfied that the position is that were the Claimant to have to return to Pakistan and apply for entry clearance and do so then it would be a matter for considering that application if his wife does not wish to return to Pakistan with the child: It is a matter between them.
12. At present on the evidence contained with the recent statements of the Claimant and Mrs Begum, his wife, the potential health problems do not give rise to exceptional circumstances needing his presence in the United Kingdom, if it had been of realsignificance that would have been set out.
13. For these reasons therefore I am satisfied that the Original Tribunal's decision contained a material error of law and I am satisfied on the evidence provided it is not, taking account, as I must do, in the best interests of the child, removal at the present time is not disproportionate.
14. There is nothing to show, were that to be their wish, that returning to Bangladesh amounts to a disproportionate interference with Article 8 ECHR rights. I take into account the arguments that there might be other bases on which a claim under the Rules might fail but I do not speculate on the outcome of a properly made out of country application for entry clearance.
15. The Original Tribunal decision can not stand. The following decision is substiltuted.
16. The Appeal (of the Claimant) is dismissed.

Signed Date 12 December 2016

Deputy Upper Tribunal Judge Davey

P.S. I regret the delay in promulgation which is due to the file being misplaced.