Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/48614/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 December 2016
On 10 January 2017

Before

THE HON. LORD MATTHEWS
DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

manna begum
(anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: Ms D Qureshi of Counsel, instructed by Shahriar Solicitors

DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Blake promulgated on 4 July 2006 allowing the appeal of Ms Manna Begum.
2. Although before us the Secretary of State for the Home Department is the appellant and Ms Begum is the respondent, for the sake of consistency with the proceedings before the First-tier Tribunal we shall hereafter refer to Ms Begum as the Appellant and the Secretary of State as the Respondent.
3. The Appellant is a citizen of Bangladesh born on 14 February 1993. She arrived in the United Kingdom on 10 March 2012 with leave to enter until 23 May 2014. Her leave to enter had been granted consequent upon an appeal decided by First-tier Tribunal Judge Miles on 19 January 2012 (ref OA/13398/2011).
4. By way of background to the case, consideration of Judge Miles's decision is useful. In paragraph 9 of his decision he identifies that the Appellant had sought entry clearance with a view to settlement in the United Kingdom as the daughter of Mr Md Mumtaz Ali (d.o.b. 30 October 1961). The Entry Clearance Officer had accepted that Mr Ali was indeed the Appellant's father and was a British citizen present and settled in the United Kingdom.
5. The Appellant had earlier applied for entry clearance together with her mother, Ms Rupia Begum, and her brother, Mr Md Jakira. All three of those applications had been refused by the Respondent and the Appellant, her mother and brother had all submitted appeals to the IAC which had initially been listed to take place in February 2011.
6. For reasons that are unclear to us, it appears that on legal advice the Appellant withdrew her own appeal but the appeals of her mother and brother proceeded. In the first instance they were dismissed with reference to accommodation requirements, but their appeals proceeded to the Upper Tribunal and in due course both the Appellant's mother and brother secured entry clearance.
7. It was in those circumstances that the Appellant had come to make a further application for entry clearance with a view to settlement at a later time than the ultimately successful applications of her mother and brother. The later application, as indicated, had been refused by the Entry Clearance Officer but was allowed on appeal by Judge Miles.
8. At paragraph 10 of Judge Miles's decision he identifies that there was an issue between the parties as to the applicable Immigration Rule - whether that should be paragraph 297 of HC 395 or paragraph 301 of HC 395. In the event Judge Miles concluded that the appropriate paragraph was paragraph 297. He allowed the appeal, satisfied that the Appellant met the requirements of paragraph 297 - as may be seen in his penultimate paragraph (paragraph 19).
9. It is also helpful to note what is said at paragraph 13 of Judge Miles's decision, which is in these terms:
"In my judgement it is impossible and, indeed would be simply wrong, not to take account of what has happened in relation to the Appellant's mother and brother. As I have noted, the judge who heard their initial appeals dismissed them simply on the accommodation issue and from the direction notice issued by the Upper Tribunal, that was on the basis that she found as a fact that the sponsor's landlord and his employer was the same person. The Upper Tribunal has concluded that that finding is in error and on that basis the decision of the judge was set aside and those appeals await final determination of the accommodation issue alone in the Upper Tribunal. It is self-evident therefore that the Judge of the First-tier Tribunal found that all the other requirements of the respective Immigration Rules had been met by both the Appellant's mother and brother. It is clearly the intention of the family as a whole to be reunited with the sponsor in the United Kingdom and the Respondent's reasoning for the refusal of the Appellant's application on the basis that her mother and brother would not be permitted to enter the United Kingdom and she could not demonstrate sole responsibility by her father, cannot in my judgement, stand given the fact that the appeals of her mother and brother are now limited simply to the establishment of the accommodation issue. On that basis therefore I find that the refusal of the application under rule 301(1) HC395 cannot be sustained. In the light of the above therefore and for the record, I find that the Appellant's application does meet the requirements of the rule 297(1) HC395 on the balance of probabilities standard."
10. What we would particularly emphasise in that paragraph is not only the Rule under which the appeal was allowed but the fact that the Judge found that at that time it had been the clear intention that the family unit remain together and join the sponsoring British citizen pater familias in the United Kingdom.
11. We should also of course note in this context that although the Appellant had reached the age of 19 when she entered the United Kingdom she had been under the age of 18 when she had made her application for entry clearance.
12. Noting that the appeal had been allowed under paragraph 297 of the Immigration Rules, it is to be observed that in the ordinary course of events a person who satisfies paragraph 297 is to be granted indefinite leave to enter the United Kingdom. Indeed the heading of that Rule states 'Requirements for indefinite leave to enter the United Kingdom as the child of a parent or parents who are settled or being admitted for settlement in the United Kingdom'. It is unclear to us, and Mr Bramble was not able to assist in this regard, as to why - having succeeded on her appeal under paragraph 297 - the Appellant was not in due course granted by the Entry Clearance Officer indefinite leave to enter rather than limited leave to enter.
13. Even if it were the case that the leave to enter had been granted pursuant to a satisfaction of paragraph 301, it is to be noted that that paragraph is concerned with applications for limited leave to enter with a view to settlement as the child of a parent or parents given leave to enter or remain in the United Kingdom with a view to settlement (our emphasis).
14. Whichever route the Appellant was admitted to the United Kingdom it is absolutely clear that the purpose of her coming to the United Kingdom was either to settle or with a view to settlement, and in that regard we also note that her age once admitted is immaterial if it is the case that she is not living an independent life. That is to say that a person admitted with a view to settlement who reaches and passes their majority subsequent to entry is not by the fact of having become an adult alone disbarred from extending leave or obtaining indefinite leave to remain.
15. Be that as it may, the Appellant entered the United Kingdom with limited leave and on 21 May 2014 - just before the expiry of her leave - she made an application for indefinite leave to remain. Whilst her application was pending her mother also applied for further leave to remain on 12 September 2014. The Appellant's mother's application was refused on 7 November 2014, and on 12 November 2014 the Respondent made a decision refusing to vary the Appellant's leave to remain and issuing removal directions pursuant to section 47 of the Immigration, Asylum and Nationality Act 2006.
16. The Appellant's application was refused with reference to paragraphs 298(i)(a)-(d) of the Immigration Rules. The Respondent's decision was essentially premised on the refusal to extend the Appellant's mother's leave in the United Kingdom.
17. The Appellant appealed to the IAC.
18. In due course her mother also made an appeal to the IAC. For reasons that are unclear the appeals were not linked. The Appellant's mother's appeal was considered before her appeal had been listed, and the mother succeeded before the First-tier Tribunal on 17 February 2015 to the limited extent that her case was remitted to the Respondent for reconsideration. Subsequently, pursuant to such reconsideration, the Appellant's mother was granted limited leave to remain from 14 May 2015 to 14 May 2017. (It would appear that she was granted a limited period of leave rather than indefinite leave because she had not provided satisfactory evidence in respect of her English language abilities.)
19. The Appellant's appeal was first heard on 23 June 2015 and allowed by First-tier Tribunal Judge Lester in a decision promulgated on 3 July 2015. However the Respondent successfully applied for permission to appeal and on 15 January 2016 Deputy Upper Tribunal Judge Chamberlain found an error of law and the appeal was remitted to the First-tier Tribunal.
20. Judge Chamberlain gave consideration to the Immigration Rules. The appeal in front of Judge Lester had succeeded on the basis that Judge Lester was satisfied that the Appellant met the requirements of the Rules. Judge Chamberlain found that that decision was in error of law, and indeed went on to conclude that the Appellant could not satisfy the requirements of paragraph 298(1) because of the status of her mother. Although her mother had been granted leave, it was not a leave that equated to settlement.
21. Nonetheless Judge Chamberlain observed that because First-tier Tribunal Judge Lester had allowed the appeal under the Immigration Rules he had not gone on to consider Article 8 outside the Immigration Rules. In the circumstances Judge Chamberlain concluded that the appeal should be remitted to the First-tier Tribunal for consideration of the Appellant's rights under Article 8.
22. It was in those circumstances that the appeal came before First-tier Tribunal Judge Blake.
23. Notwithstanding the terms of the remittal, Judge Blake gave consideration to certain aspects of paragraph 298 and reached a conclusion - rather as had Judge Chamberlain - that the Appellant did not satisfy the requirements of the Rules. Against that premise Judge Blake went on to consider the case outside the Rules by reference to the principles of Article 8 and concluded that the Appellant's removal in consequence of the Respondent's decision would constitute a disproportionate interference with her family life.
24. The Respondent sought and was granted permission to appeal. The grounds essentially raise arguments that Judge Blake had undertaken no analysis in respect of the Appellant's private life, had made unwarranted assumptions in respect of her family life, and moreover had made no reference to the public interest considerations when evaluating proportionality.
25. It seems to us that it is abundantly clear that the Appellant's case was not premised on her private life but on the family life that she enjoyed with her mother, siblings and father - indeed the family life that had been the basis of her entry to the United Kingdom. In the circumstances we do not think there is anything material in the criticism of the lack of analysis of the Appellant's private life.
26. We accept that the decision of Judge Blake is appropriately described as being 'thin' on detail in terms of setting out the circumstances of the Appellant's family life, but it seems to us that there can be no real doubt that it was fully understood that the Appellant's case was premised on what she said was her family life as an adult child still living with her parents and not living an independent life. Again it seems to us that in such circumstances the absence of any further detailed analysis of her situation is not a material defect.
27. In respect of the criticism that is made with regard to consideration of the public interest requirements pursuant to section 117B of the Nationality, Immigration and Asylum Act 2002, again it is to be acknowledged that Judge Blake does not expressly identify the statutory provisions that it is incumbent upon a decision-maker to take into account in this area.
28. However, having said that, it seems to us that with regard to section 117B(1) it is clear from paragraphs 76 and 77 of the decision that Judge Blake had well in mind the public interest in maintaining effective immigration control through a fair and firm system, and that that was a legitimate aim.
29. As regards section 117B(2) there has been no dispute in these proceedings that the Appellant had successfully presented with her application evidence of her English language ability and her 'Knowledge of Life in the United Kingdom' test. To that extent even if there had been no express consideration given to section 117B(2) in the decision it is not a matter that would have constituted an adverse factor that could have been weighed against the Appellant's case.
30. Similarly, in respect of section 117B(3), no issue was taken in the Secretary of State's decision in respect of the maintenance and accommodation requirements of the Immigration Rules and we can see no adverse factors that might have made any difference to the outcome of this appeal.
31. As regards section 117B(4), the Appellant has not been present in the United Kingdom unlawfully. She entered with appropriate entry clearance secured after an appeal, and she made an application for variation of leave within the period of that leave and prior to its expiry.
32. As regards section 117B(5), whilst it is the case that the Appellant's presence in the United Kingdom has been precarious in the sense that she has only enjoyed limited leave to enter, section 117B(5) relates to private life rather than family life and as observed above, it is family life that is at the heart of this application and appeal.
33. Section 117B(6) is not applicable on the facts of this case.
34. In all those circumstances it seems to us that there are no material adverse matters omitted from consideration whether by reference to section 117B or indeed otherwise. In those circumstances we reject that aspect of the Respondent's challenge.
35. It is also to be noted that the Respondent has raised the question of the Appellant's age in the grounds of appeal, identifying that by the time of her application and the decision which is the subject of appeal, that she was no longer a minor. In that regard - as indicated above - we note that had this case been considered under the Immigration Rules or had the focus of consideration been under the Immigration Rules, the fact that the Appellant was no longer a minor would not have been a reason to defeat the application. In such circumstances, on the wider consideration under Article 8 we see no reason on the very particular facts of this case why the Appellant no longer being a minor should be accorded any significant adverse weight. In this context, again, we remind ourselves that the whole purpose of her entry into the United Kingdom was to promote and maintain and protect the family life that she had enjoyed with her mother, brothers and father - and that the scheme of the Rules (and thereby the scheme of immigration control approved by Parliament) does not seek to terminate such family life simply by reason of an applicant having transitioned from child to adult upon reaching 18.
38. In all of those circumstances we can detect no material error of law in the approach taken by the First-tier Tribunal Judge, notwithstanding the perhaps somewhat thin nature of the details set out in the Decision and Reasons.

Notice of Decision
39. The decision of the First-tier Tribunal contains no material errors of law and stands.
40. No anonymity direction is sought or made.
The above represents a corrected transcript of an ex tempore decision given at the conclusion of the hearing.

Signed: Date: 21 December 2016

Deputy Upper Tribunal Judge I A Lewis