Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47197/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 15 April 2014
On 17 April 2014

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

MAJLINDA TOSHA

Respondent

Representation:

For the Appellant: Mr C Avery, Senior Home Office Presenting Officer
For the Respondent: Mr F Shibli, instructed by F J S Solicitors

DETERMINATION AND REASONS

1. The respondent, Majlinda Tosha, was born on 5 July 1982 and is a female citizen of Albania. I shall hereafter refer to the respondent as "the appellant" and to the Secretary of State as "the respondent" (as they were before the First-tier Tribunal).
2. The appellant had appealed to the First-tier Tribunal (Judge M A Khan) against a decision of the Secretary of State dated 23 October 2013 to refuse to vary her leave to remain in the United Kingdom (she had entered as a visitor) and remove her under Section 47 of the Immigration, Asylum and Nationality Act 2006. There is agreement that the appellant was unable to meet the requirements of paragraph 276ADE of the Immigration Rules.
3. The grounds assert that the judge makes no reference to and did not apply MF (Nigeria) [2013] EWCA Civ 1192; Gulshan [2013] UKUT 640 (IAC); Nagre [2013] EWHC 720 (Admin).
4. I find that the determination of the First-tier Tribunal Judge is to be set aside. I have reached that conclusion for the following reasons. First, I find that the judge did err by failing to address the appeal under the Immigration Rules as part of a two-stage process before proceeding to consider Article 8 ECHR. Even if (as in this case) the appellant had no prospect of succeeding under the Immigration Rules, the fact that she could not satisfy any of the various scenarios envisaged under the Immigration Rules should have led the judge, in the first instance, to consider whether the circumstances of her case were so exceptional as to engage Article 8 ECHR at all (see Gulshan above).
5. At the very least, the judge would have needed to identify unusual circumstances in the facts of this case given that the appellant had failed under the Immigration Rules. I agree with Mr Shibili that the failure of the judge to refer to particular items of jurisprudence does not, in itself, constitute an error of law. However, the generally disorganised nature of much of the prose and reasoning in this determination does not persuade me that the judge did have in mind the relevant jurisprudence when he came to consider the appeal under Article 8; he did not apply the principles of any of the cases referred to at [3] above.
6. Secondly, I agree with Mr Avery that the judge has failed to carry out a proper proportionality assessment in this case. At [28], the judge wrote:
There is no doubt in my mind that it would be reasonable for the appellant to return to Albania and make an application to return to the UK in the proper way? This is because the appellant entered the UK as a visitor but one has to carefully consider the impact of all this on the two children and especially in light of the fact that the husband is about to undergo a serious open-heart operation. [sic]
7. In common with the representatives, I struggle to understand exactly what that paragraph means. What is clear is that the use of the words, "one has to carefully consider" indicate that the judge was here identifying one of the issues in the appeal rather than making a finding that it would be reasonable to expect the appellant (with or without her children) to return to Albania to make another application for settlement as a spouse. The judge then set out a familiar passages from ZH (Tanzania) 2011 UKSC 4 and Razgar [2004] UKHL 27 and also Zoumbas [2013] UKSC 74 before then proceeding at [36] to make the following finding:
I find that the appellant entered the UK as a visitor and should return to Albania to make her application for entry clearance as a spouse for settlement. In the light of the history of this case, there has been a considerable delay in the past when the appellant did make her settlement application, it has had undesired effect on the two children, which is not in their best interests. I find that the respondent would be in breach of the appellant's Article 8 right to family life rights and therefore the decision is disproportionate [sic].
8. Quite apart from the tortured prose, that paragraph raises as many issues as it purports to settle. The "considerable delay in the past" is not explained nor is the "undesired effect" upon the children which was apparently caused by the appellant's absence in Albania whilst making her unsuccessful settlement application. Mr Shibli explained to me that the judge was here referring to letters from Bonneville Primary School dated respectively 17 May 2011 and 26 June 2012 which appear in the appellant's bundle of documents. The first letter, written by Mr Connelly, the inclusion manager of the school, describes the effect of the appellant's absence upon the children, then aged 9 years and 5 years. The second letter (written by Miss J Hillman, head teacher) refers to the poor behaviour of the children during their mother's "indefinite absence from the family home".
9. The judge has made no attempt to refer to or assess and weigh this evidence. He has made no attempt to assess any "undesired effect" which a further separation from their mother might have. He has failed to specify the best interests of the children or to weigh against those best interests countervailing factors such as the public interest concerned with the removal of an individual who, having failed in an out of country application for settlement, has abused the immigration system by entering the United Kingdom as a visitor, only to make a further application for settlement. It could be argued that the public interest concerned at the removal of such an individual is a strong one but the judge has made no attempt to assess that public interest or to consider it as part of a proportionality exercise. In my opinion, the judge's analysis is wholly deficient. The British citizenship of the children is obviously an important feature in this case but it needs to be considered properly and in the context of all the factors both supporting the appellant's appeal and those favouring her removal.
10. There is a further problem in the determination which may have been not brought to the judge's attention. At [25] the judge (wrongly) states that the two children are British citizens because their father had been naturalised himself as a British citizen; the two children are British citizens because their father had indefinite leave to remain at the time they were born in this country. Mr Avery produced a letter dated 17 October 2013 from the Home Office to the appellant's husband, Artan Tosha, which clearly indicates that, on 19 February 2013, a decision was taken to treat Mr Tosha's acquisition of British citizenship as null and void on the basis that he had adopted a false identity (he claimed to be Kosovan rather than Albanian). Mr Tosha has not challenged that decision by way of judicial review. The letter of 17 October 2013 states the Secretary of State's intention to cancel Mr Tosha's refugee status; Mr Avery told me that no decision had yet been taken on that matter became the Secretary of State was still awaiting a response from the UNHCR. The First-tier Tribunal judge was, therefore, working under a misapprehension when he described Mr Tosha at [27] as "still a British citizen". I agree with Mr Shibli that the citizenship of the children would not appear to be affected by their father's loss of his citizenship but the judge was plainly not in possession of the full and accurate facts. It is to be hoped that Mr Tosha's status in this country will have been determined by the time the decision is remade in the First-tier Tribunal.
11. I have decided to remit this matter to the First-tier Tribunal because I am not satisfied that full and proper determination of the issues in the appeal has been carried out. Further, I understand that at least two witnesses will need to give evidence at a new fact-finding hearing; for the avoidance of doubt, none of the findings of fact of the First-tier Tribunal shall stand. It may also be the case that further evidence regarding the behaviour of the children and their academic progress may be relevant in enabling the new Tribunal to ascertain exactly what effects the appellant's absence had upon the children and how they may now react to a further separation.
Decision
12. The determination of the First-tier Tribunal which was promulgated on 13 February 2014 is set aside. The appeal is remitted to the First-tier Tribunal (not Judge M A Khan) to remake the decision.

Signed Date 16 April 2014

Upper Tribunal Judge Clive Lane