Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/46169/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On Thursday 10 August 2016
On Wednesday 24 August 2016

Before

UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR MOHAMMED SHIPLU (AKA ASHRAFUZ ZAMAN)
Respondent

Representation:
For the Appellant: Mr T Melvin, Senior Home Office Presenting Officer
For the Respondent: Mr D Coleman, Counsel instructed by S Satha & Co

DECISION AND REASONS

Background

1. This is an appeal by the Secretary of State. For ease of reference, we refer below to the parties as they were in the First-Tier Tribunal albeit that the Secretary of State is technically the Appellant in this particular appeal. The Secretary of State appeals against a decision of First-Tier Tribunal Judge H Clark promulgated on 2 February 2016 ("the Decision") allowing the Appellant's appeal against the Secretary of State's decision dated 28 October 2014 refusing him leave to remain on the basis of his family and private life outside the Rules and directing his removal to Bangladesh. Permission to appeal was granted by First-tier Tribunal Judge Mark Davies on 28 June 2016 on the basis that the Judge had failed to have regard to the public interest considerations set out in section 117B Nationality, Immigration and Asylum Act 2002 ("section 117B"). The matter comes before us to determine whether the Decision contains a material error of law and if we so find, to either re-make the decision ourselves or remit the appeal for re-determination by the First-tier Tribunal.

2. The Appellant came to the UK as a visitor on 6 September 1996, then aged fifteen years, and has overstayed. He admits that he entered the UK under a false name but the point is made that he was only a child at the time. He was refused leave to remain in relation to an earlier application and unsuccessfully appealed that decision in 2009. As the Judge rightly directed herself at [12] of the Decision, the first Judge's findings are a starting point for her findings. The Appellant also previously sought leave to remain as the spouse of a settled person but that application too was refused, this time with no right of appeal.

3. The Appellant has family in Bangladesh with whom he retains contact. He has other family in the UK. However, the main plank of his human rights claim is that he is married to Mrs Begum who, whilst born in Bangladesh, grew up with her parents and six siblings in the UK. All remain here. She is now a British citizen. She was aware when she married the Appellant that he did not have status in the UK and is also aware that the Appellant had used another identity.

4. The couple have a son who was born on 27 April 2014 and who is a British citizen due to his mother's status. The Appellant looks after the child whilst his wife works as he is not entitled to work.

5. It was accepted that the Appellant's wife can speak Bengali but she says that she cannot read or write it. Return to Bangladesh would also entail her leaving her job and her family in the UK.

6. Judge Clark accepted that the relationship between the Appellant and his wife is genuine. She found that the Appellant and his wife would be able to meet the Rules in relation to financial requirements but could not satisfy the Rules as the Appellant has no leave to be in the UK. The couple did not rely on EX1(b) of Appendix FM to the Rules. Judge Clark therefore considered the case outside the Rules. She did not accept that it would be proportionate for the Appellant to return to Bangladesh either with or without his family in order to obtain entry clearance, even though the period for obtaining a visa in Bangladesh is not particularly lengthy. She also made a finding that separation of the Appellant from his son even during that short period would not be in the child's best interests. She allowed the appeal on human rights grounds outside the Rules for those reasons.

Discussion and conclusions

7. Mr Melvin relied on the Respondent's grounds of appeal. Those grounds submit that the Judge failed to provide adequate reasons why the requirement to meet the Immigration Rules involved in applying for entry clearance from outside the UK would be disproportionate or why the facts are such as to outweigh the public interest of immigration control, having particular regard to the Appellant's adverse immigration history. Mr Melvin directed us to the case of R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM - Chikwamba - temporary separation - proportionality) IJR [2015] UKUT 189 (IAC).

8. The second ground concerns the Judge's approach to an Article 8 claim firstly under the Rules and then identifying any additional compelling circumstances outside the Rules. The Respondent asserted that the Judge failed to consider section 117B. It appears that this is the ground which found favour with Judge Davies (although the grant of permission is not limited).

9. We enquired of Mr Melvin in the course of his submissions whether it could be said that the Appellant would be able to return to the UK with entry clearance if he departed, given in particular his adverse immigration history and that he would be subject to removal. Mr Melvin pointed to the IDIs in relation to rule 320 and submitted that the application would have to be assessed on its facts but rule 320 would probably be waived in a spouse application.

10. Mr Coleman submitted that the Respondent's ground amounted to an unwarranted perversity challenge. The Judge dealt with the issue of entry clearance at [43] of the Decision as follows:-
"[43] The respondent's information about the processing of settlement applications in the British High Commissions in Dhaka or Sylhet suggests that it would take between 30 and 60 days for such an application to be processed should the appellant be required to return to apply to join his wife and child in the United Kingdom. His wife has a job in the United Kingdom and could not, therefore, travel to Bangladesh for any significant period of time without jeopardising her family's financial security. The appellant could, therefore, be separated from his wife and child for more than two months. I accept that the appellant plays an important role in his son's life, in particular because he looks after him whilst his wife is at work. Whilst alternative child care could be arranged (whether commercially or within the extended family), continuity is generally in a child's best interests and I am satisfied that requiring the appellant to leave the United Kingdom for two months or so would disrupt [Y's] family unit and care arrangements, such that it would be incompatible with his best interests.
[44] I recognise the significant weight which I must attach to the public interest in effective immigration control. I also weigh in the balance that the appellant will not otherwise be an economic burden on the state. I do not regard his length of residence here as a reason why he should not return to Bangladesh on a temporary basis to obtain entry clearance, particularly since he has close family in Bangladesh. Although it can be said that the appellant has a long period of leave to establish ties here, that was his choice and he had no expectation of leave to remain when he formed ties. However, given the disruption which would be caused to [Y] and the stability of his family unit in being separated from his father whilst the latter returned to Bangladesh to apply to re-join Mrs Begum in the United Kingdom, I am satisfied that requiring him to do so would amount to a disproportionate interference with his established family life with his wife and child."
11. In response to a question from us, Mr Coleman submitted that the word "disruption" can be read in a number of ways and is capable of incorporating a level of interference with, in particular, the child's human rights which would render removal of the Appellant disproportionate. It could not be said that the Judge acted perversely in giving weight to the disruption which would be occasioned to the Appellant's child by separation - even on a temporary basis - from his father.

12. In the course of argument, a further point arose in relation to whether the Appellant could meet the Rules in relation to his family and private life. Mr Melvin asserted that he could not. The Appellant's representatives similarly asserted that the appeal stood or fell outside the Rules (see [14] of the Decision). However, it seemed to us that this may identify a potential flaw in the Decision. The Judge appears to have simply accepted that the Appellant could not meet the Rules rather than engaging with an application of the Rules to this case. If the Judge had followed that process, it seemed to us that she would be bound to consider the application of paragraph EX1 of Appendix FM to the Rules which would require her to consider whether it would be reasonable for the Appellant's wife and child to accompany him to Bangladesh, not simply whilst entry clearance is obtained but on a more permanent basis. Given the Judge's approach to the question whether the Appellant's family could accompany him even on a temporary basis, we have no doubt that she would have found it unreasonable for them to do so. However, it is a point which is not addressed because of the way in which the Judge approached the case.

13. We heard argument on this point from Mr Coleman who submitted that it could never be said to be reasonable to expect a British citizen to leave the UK unless the case involves deportation. We do not accept that submission. A British citizen cannot of course be required to leave the UK. He or she though can leave with the person subject to immigration control if he or she so chooses. That is therefore relevant to the question whether family life can reasonably be expected to continue outside the UK. Similarly, based on Zambrano, removal of a parent of a British citizen child could not be required if that would entail the child having to leave the UK. However, if, as here, there is another parent who can care for the child, that issue does not arise. Again, if the parents make a choice to leave with the child rather than for one parent to remain with the child, that is their choice.

14. Ultimately, though, we do not find in the Respondent's favour on this basis for two reasons. The first is, as Mr Coleman pointed out, that the Respondent's grounds do not raise this issue. True it is that the Respondent makes the point that a family and private life claim should be viewed through the lens of the Rules and only if there are additional, compelling factors outside the Rules should it succeed on that basis. However, the Respondent does not say that the Appellant's case should have been considered on the basis that it might meet the Rules (if EX1 were satisfied) and that a failure to consider this is an error of law. The second ground is targeted at the allowing of the appeal outside the Rules on the basis that there were no compelling circumstances and that section 117B had not been applied properly in the proportionality balance.

15. The second reason we do not find an error of law on this basis concerns whether any error of law could be material. We were informed by Mr Coleman in his submissions that the Appellant's wife is now pregnant with his second child. Also, and perhaps more importantly, the Appellant will have been in the UK for twenty years on 6 September 2016. As such, he would be entitled to have a claim based on his private life determined in his favour if we were to proceed to re-make the decision after that date. As Mr Coleman submitted and we accept, given the potentially changed circumstances, it would be necessary to have a further hearing to consider updated evidence by which date it is almost inevitable that he would have passed the twenty years' threshold.

16. For the sake of completeness, we consider whether the Decision contains an error of law in relation to the application of Section 117B. We are persuaded by Mr Coleman's submission that the Judge has in fact dealt with the section 117B issues. In addition to the summary at [44] of the Decision which we set out at [10] above, the Judge cites section 117B expressly at [16] of the Decision. She goes on to set out issues relevant to that section at [35] and following:-
"[35] The aspect of the public interest on which the respondent relies in this case is the maintenance of immigration control, which is in the economic interests of the country?..
[37] The appellant has lived in the United Kingdom for the majority of his life and speaks English?..
[38] The appellant's private and family life has been established whilst he has been in the United Kingdom unlawfully and, as such, I am required to give it little weight?.Whilst the appellant has had the benefit of medical treatment in the United Kingdom, he speaks English and is not otherwise dependent on the state as he is supported by his wife."
It cannot be said, therefore, that the Judge erred in failing to have regard to section 117B.

17. We emphasise that our decision is based as it must be on whether there is an error of law in Judge Clark's decision and not whether we would have reached the same decision. The Decision is undoubtedly generous to the Appellant, particularly given his adverse immigration history. However, for the reasons stated above, we are satisfied that the Decision does not contain any material error of law and we uphold it.

DECISION
The First-tier Tribunal Decision did not involve the making of an error on a point of law. We uphold the decision of Judge Clark promulgated on 2 February 2016.

Signed Date 23 August 2016

Upper Tribunal Judge Smith