Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA184902015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 13th June 2016
On 20th June 2016

Before

upper tribunal Deputy judge ROBERTS

Between

MOHAMMED ATIF PARVEZ
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Khan (Counsel)
For the Respondent: Mrs Pettersen, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant a citizen of Pakistan appeals with permission against the decision of the First-tier Tribunal (Judge Saffer) promulgated on 8th October 2015, in which it dismissed the Appellant's appeal against the Respondent's refusal of 6th May 2015 to grant him leave to remain in the UK.
Background
2. There is a protracted immigration history to this appeal. The Appellant entered the UK in 2008 and at that time claimed to be a British citizen born in Halifax in 1989. This turned out to be untrue; he is apparently called Poona Khan, not Mohammed Parvez as claimed. He is a citizen of Pakistan. The fact of his real identity was admitted by the Appellant at the time of the hearing before the FtT. There is also a question over whether the Appellant used deception to gain entry to the UK.
3. On 2nd March 2013 the Appellant married Shabana Kosar, a British citizen, in an Islamic ceremony.
4. On 24th January 2015 their first child was born. It is correct to say that when the Appellant's appeal came before Judge Saffer on 2nd October 2015, Mrs Kosar was pregnant with the couple's second child.
5. By the time of the UT hearing, Mrs Kosar had given birth to the couple's second child. Unfortunately he suffers medical problems. He has heart, lung and hand abnormalities.
The FtT Hearing
6. Judge Saffer heard evidence from both the Appellant and Mrs Kosar. He also took into account various pieces of documentary evidence. In reaching his decision the judge found the following;
the Appellant had lied over his identity.
he has been here unlawfully for the entire duration of his stay.
he entered into his relationship with Mrs Kosar in the knowledge that he was here unlawfully.
7. The judge then said this [39]
"He (the Appellant) obviously would wish to be with Mrs Kosar and (their child) and be present during her pregnancy and the impending birth. It would not be reasonable to require (their child) or Mrs Kosar to leave the United Kingdom with the Appellant given their settled status, her impending confinement, and the fact that she has all her family and job here."
Nevertheless he went on to dismiss the appeal.
8. Permission to appeal was sought, the main ground being that there was a failure by the judge to properly consider and apply the statutory public interest considerations under Section 117B(6) of the Nationality, Immigration and Asylum Act 2002.
9. Permission was granted and the relevant part of the grant reads as follows:
"In respect of Section 117B(6) it is arguable that the judge has misdirected himself in respect of the statutory framework and applicable test. Accordingly I grant permission on this ground alone."
Thus the matter comes before me to decide whether the decision of the First-tier Tribunal must be set aside for legal error and the decision remade.
The UT Hearing
10. Ms Khan appeared for the Appellant and Ms Pettersen for the Respondent. Prior to the UT Hearing, the Respondent served a Rule 24 Response. In that Response it was conceded by the Respondent that the judge had erred in his decision and that there was no opposition the Appellant's application, on the narrow scope set out above in the permission.
11. Mrs Pettersen submitted that if I was satisfied that the judge erred, then the appropriate course would be for me to set aside the decision and remit the matter to the First-tier Tribunal for a fresh hearing. The rehearing would require further evidence to be heard concerning the couple's second child.
12. Ms Khan asked me to give consideration to continuing the hearing straight away in the Upper Tribunal. She said that the Appellant and his wife were anxious that the case proceed as soon as possible, not least because the future of the second child gave cause for increased anxiety.
13. I gave consideration to Ms Khan's submissions but there were two problems against continuing. Part of the Appellant's case now, is going to centre on the health of the second child. I enquired with Ms Khan what evidence she was able to bring to deal with that issue. She responded saying that she had been able to take a handwritten statement from Mrs Kosar only that morning, outlining the fact that the second child suffered from medical problems. There was no medical report from the child's professional health carers.
14. Ms Pettersen, quite properly, said that she had not had an opportunity to see either the mother's statement nor to consider any available medical evidence. She further submitted that it would be appropriate for a full medical report on the child's condition to be obtained by the Appellant and for the Respondent to be given the opportunity to consider any fresh evidence.
15. The second problem which arose was that no interpreter had been booked for the hearing. The Appellant requires the services of an Urdu interpreter. Ms Pettersen said in all the circumstances it was appropriate to adjourn the hearing and remit it to the First-tier Tribunal since a fact-finding exercise would now be necessary to consider the fresh evidence.
16. After taking instructions Ms Khan agreed to this course. She did ask that I make directions for the case to be expedited because the family were, naturally, already anxious enough with the situation concerning their second baby. They wished to get matters settled as soon as possible.
17. I accept that the decision of the First-tier Tribunal must be set aside for legal error on this basis. Nowhere in the decision do I see that a full consideration and analysis of Section 117B(6) has been carried out by that Tribunal. However I find it is not necessary for the whole decision to be set aside. Ms Khan asked that the findings made by Judge Saffer in [31], [32] and [39] be preserved. Ms Pettersen was agreeable to that course and I see no reason to disturb those findings.

Notice of Decision

The decision of the First-tier Tribunal promulgated on 8th October 2015 is set aside for legal error. The appeal is remitted to that Tribunal (not Judge Saffer) for a further hearing, with [31], [32] and [39] of the judge's original decision being preserved and for that Tribunal to re-make the decision.

Directions
(1) This appeal to be relisted to be relisted at Bradford FtT for an expedited hearing in six weeks' time. The hearing will be expected to last two hours.
(2) Medical evidence outlining the medical condition of the Appellant and Mrs Kosar's second child to be obtained and served upon the Respondent, at least five days before the renewed hearing date.
(3) An Urdu interpreter required.
(4) Ms Khan's availability to be taken into account when relisting this matter.
(5) A typed copy of Mrs Kosar's statement to be signed and served upon the Respondent five days before the renewed hearing date.

No anonymity direction is made, none was sought.

Signed C E Roberts Date 19 June 2016

Upper Tribunal Deputy Judge Roberts