Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/01410/2014
OA/01415/2014
OA/01417/2014
OA/01419/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15th July 2016
On 16th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mrs pushpa gauchan (first appellant)
miss deena gauchan (second appellant)
master prabin gauchan (third appellant)
master sabin gauchan (fourth appellant)
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr S Mesquit, Counsel
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants are citizens of Nepal. The first Appellant was born on 29th December 1972. The second, third and fourth Appellants are her children born respectively on 21st November 1996, 9th January 1999 and 3rd September 2000.
2. The first Appellant applied for entry clearance as a partner under Appendix FM of the Immigration Rules. The second to fourth Appellants had each applied for entry clearance as a child with a view to join their Sponsor in the UK. Their applications were similarly refused.
3. The basis of the first Appellant's refusal was that the Entry Clearance Officer was not satisfied that her relationship with her Sponsor was genuine and subsisting or that they intended to live together permanently in the UK. In addition the Entry Clearance Officer was not satisfied that the Sponsor's income was as claimed and did not meet the financial requirement.
4. The Appellants' applications were refused and the appeal came before Judge of the First-tier Tribunal Hunter sitting at Hatton Cross on 21st September 2015. In a decision and reasons promulgated on 15th December 2015 the Appellants' appeals were allowed on human rights grounds.
5. On 29th December 2015 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. The Grounds of Appeal were brief. They note that the First-tier Tribunal Judge found at paragraph 73 of his determination that:
"Mr Gauchan has now been in the UK for some fifteen years and is a British citizen and in those circumstances I do consider it would be unreasonable to expect him to return to Nepal."
The Secretary of State submits that the judge has given inadequate reasons as to why the Appellants' Sponsor could not join his family in Nepal and that this lack of reasoning amounts to a material error of law.
6. On 27th May 2016 First-tier Tribunal Judge Nicholson granted permission to appeal. The judge noted the basis of the Grounds of Appeal and went on to recite the authority of R (on the application of Agyarko) [2015] EWCA Civ 440 where it was held that the mere fact that the Sponsor was a British citizen who had lived all his life in the United Kingdom and who had a job here - and hence might find it difficult and reluctant to relocate to (in that case Ghana) to continue family life there - could not constitute insurmountable obstacles to his doing so. Judge Nicholson noted that the test of reasonableness outside of the Rules was different to the test of insurmountable in Appendix FM but given the correlation between the two, it was arguable that the judge had failed to give adequate reasons for finding that it would be unreasonable to expect Mr Gauchan to enjoy family life in Nepal - a country of which he had previously been a national for 40 years - particularly as it appears there was no evidence to show that he was not still a dual national of that country and it also appears he had only been in the United Kingdom legally since 2010.
7. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. I note that this is an appeal by the Secretary of State. For the purpose of continuity throughout the appeal process Mrs Gauchan and the children are referred to as the Appellants and the Secretary of State as the Respondent. The Appellant appears by her instructed Counsel Mr Mesquit. The Secretary of State by her Home Office Presenting Officer Mr Tarlow.
Submissions/Discussion
8. Mr Tarlow relies on the Grounds of Appeal. He acknowledges that the appeal turns on paragraph 73 of the decision of the First-tier Tribunal Judge and the finding therein that because the Sponsor has been in the UK for some fifteen years and is a British citizen the judge considered in such circumstances that it is unreasonable to expect him to return to Nepal. Mr Tarlow points out that that is the sum total of the Article 8 acceptance. He accepts there has been prior reference within the decision by the judge to the position of the second to fourth Appellants and that the second Appellant has suffered from hydrocephalus since birth. He submits however that the decision is so inadequately reasoned that to come down in favour of the Sponsor constitutes an error of law based on the lack of reasoning given.
9. Mr Mesquit submits that the judge granting permission to appeal has himself fallen into error and that the inadequacy of reasons referred to in the authority of the R (on the application of Agyarko) relates to the test for insurmountable obstacles and that the test involved is a completely different test as considered by the First-tier Tribunal Judge. He goes on to emphasise that the judge has not only considered Article 8 at paragraph 73 but that the overall assessment on Article 8 begins at paragraph 67 and that the judge has at paragraph 69 done what is necessary under Statute. She submits that there is nothing wrong in the decision, that there is no material error in law and asked me to dismiss the Secretary of State's appeal.
The Law
10. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
11. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings
12. The contention of the Secretary of State is very limited indeed and as indicated above concentrates entirely as to whether the reasons given by the judge are sufficient for the Appellants to succeed under Article 8 outside the Rules. I am satisfied that there is no material error of law in the decision of the First-tier Tribunal. It is important that I give reasons. My starting point are the Grounds of Appeal. When looked at in isolation as set out within those Grounds of Appeal there may be some merit in the contention put forward by the Secretary of State but that is not the case when this decision is looked at fully. At paragraph 62 the judge has set out factors that he has considered when assessing the Appellants' case outside the Immigration Rules pursuant to Article 8 of the ECHR. Thereafter at paragraphs 63 to 65 he has set out the ambit of Article 8 and at paragraph 69 has, as he is required to, taken into account the public interest in maintaining effective immigration control. He has thereafter given careful consideration to the adequacy of funds at paragraph 70 and the accommodation available to the Appellants and the best interests of the children. He states that he had found the Sponsor to be credible and that he has been in regular contact with the Appellants since he left Nepal in 2000. He has then gone on to consider whether or not family life - which he accepts exists - needs to take place in the UK and he has given reasons as to why he considered it should.
13. When looked at in this context whilst acknowledging that what is set out at paragraph 73 is limited I am satisfied that this is a judge who has given thoughtful and proper consideration to the required features in order for an Appellant to succeed under Article 8 outside the Rules and has made findings that he was entitled to and given adequate reasons. In such circumstances the submission of the Secretary of State amounts to little more than disagreement and the appeal is therefore for all the above reasons dismissed and the decision of the First-tier Tribunal is maintained.
Notice of Decision
The appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal is maintained.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made

Signed Date

Deputy Upper Tribunal Judge D N Harris