Tribunal decisions

The decision

IAC-BFD-MD-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/02103/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 March 2017
On 16 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Ms soni Rai
(anonymity direction NOT MADE)
Respondent

Representation:
For the Appellant: Ms A Fijiwala, Home Office Presenting Officer.
For the Respondent: Mr D Lemer, Counsel.

DECISION AND REASONS
1. The Appellant in this case is the Secretary of State for the Home Department. However, for the sake of clarity, I shall use the titles by which the parties were known before the First-tier Tribunal, with the Secretary of State referred to as “the Respondent” and Ms Soni Rai as “the Appellant”.
2. The Appellant is a female citizen of Nepal who appealed against the decision of the Respondent dated 8 January 2015 refusing her application for entry clearance that had been coupled with a similar application made by her father, now deceased that was also refused.
3. The letter of refusal stated there was no evidence concerning the mother of the Appellant and so no evidence that the father had sole care of her. It was decided that the Appellant and her father could have a family life in Nepal. It was not accepted that there was a blood relationship between the Appellant and her Sponsor. The Entry Clearance Manager review of 21 February 2015 stated that there was no evidence of the death of the father of the Appellant. It was also stated that the reasons for refusal had not been addressed. There was a lack of evidence that the Appellant and the Sponsor were related. The effect of historical injustice was not such that the Appellants had been prevented from leading a normal life. The decision, it was said, was not disproportionate.
4. The Appellant appealed and following a hearing, and in a decision promulgated on 3 August 2016, Judge of the First-tier Tribunal Housego, allowed the Appellant’s appeal. He did so on human rights grounds with reference to Article 8.
5. The Respondent sought permission to appeal which was granted by Judge of the First-tier Tribunal Martin in a decision dated 18 January 2017. Her reasons for so doing are:-
“1. The Respondent seeks permission to appeal, in time, against a decision of the First-tier Tribunal (Judge Housego) who, in a decision and reasons promulgated on 3 August 2016 allowed the Appellant’s appeal against the Entry Clearance Officer’s decision to refuse her entry clearance to settle in the UK on Article 8 grounds.
2. It is arguable that the Judge erred in dealing with the appeal on the basis of the circumstances at the date of hearing when it ought to have been as at the date of decision.”
6. Thus the appeal came before me today.
7. Ms Fijiwala’s submission was short and to the point. She confirmed the agreed chronology in that the Respondent’s decision was taken on 8 January 2015, the Appellant’s grandfather died on 15 January 2015 and her father died on 29 April 2015. The decision taken for the Appellant to reside with her aunt was post the Respondent’s own decision refusing the application and the evidence that the Judge relied on in allowing the appeal should not have been taken into account. The Judge had even acknowledged in the decision that the original grounds were no longer applicable given the death of the father of the Appellant. The Judge had materially erred in directing himself that the assessment of the family life claim under Article 8 was to be made as at the date of hearing. I was referred to the authority of AS (Somalia) (FC) and another v SSHD [2009] UKHL 32 that the restrictions in Section 85 confirming consideration to the facts at date of decision in entry clearance cases are equally applicable to an Article 8 consideration. Hence Ms Fijiwala contends that the Judge has materially erred.
8. Mr Lemer accepted that it was incumbent upon the Judge to consider the facts as at the date of decision. However, he urged me to accept that the Judge’s error was an immaterial one as the relevant circumstances appertaining at the date of decision were such that the appeal would have been allowed in any event. This was the main plank of his argument. However, he put forward two further arguments. Firstly that given the severity of the Appellant’s father’s illness, which was a terminal one, the Judge was entitled to take this into account albeit that Mr Lemer accepted that there was no medical evidence before the Judge confirming prognosis. Finally that if I was not with him on either of his first two arguments he sought permission to appeal to the Court of Appeal on the basis that there was no power within the Upper Tribunal to make a declaration that the Respondent’s decision was incompatible with the Appellant’s Article 8 rights. He too referred me to the authority of AS (Somalia).
9. Dealing with Mr Lemer’s submissions in reverse order whilst appreciative that the Lords of Appeal in AS (Somalia) did acknowledge that there may be cases in which respect for family life cries out for urgent attention and the possibility of a consequential declaration of incompatibility I do not consider that I have power to grant permission for this case to immediately go to the Court of Appeal. I am of the view that this must be by written application.
10. As to the second argument the Judge can not have materially erred for the precise reason put forward by Mr Lemer himself in that there was no medical evidence before him setting out the prognosis of a terminal illness.
11. As to Mr Lemer’s date of decision argument the legal basis for this can be found in the provisions of Sections 85 and 85A of the 2002 Act, as they stood at the material time. They have now been amended.
“Section 85 of the 2002 Act, in its original form, provided:
"…
(4) On an appeal under section 82(1)…against a decision an adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But in relation to an appeal under section 82(1) against refusal of entry clearance…
(a) subsection (4) shall not apply, and
(b) the adjudicator may consider only the circumstances appertaining at the time of the decision to refuse."
The decision in this appeal is one of refusal of entry clearance and accordingly falls within Section 85A(2) and therefore contrary to the general rule, Judge Housego was entitled only to consider the circumstances appertaining at the date of decision appealed against. The above mentioned chronology is not in dispute and accordingly it is asserted, and I find, that that is not what the Judge has done here.
12. I reject Mr Lemer’s argument that the Judge’s error is “immaterial” because the relevant circumstances appertaining at the time of the decision were such that the appeal would in any event have been allowed. That is not a conclusion that can be made from the evidence that fell to be considered. These statutory provisions are not in themselves incompatible with Article 8 of the Human Rights Convention.
13. It was incumbent upon the Judge to consider the facts as at 8 January 2015.

Conclusions
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I dismiss the appeal.

No anonymity direction is made.

Signed Date 15 March 2017

Deputy Upper Tribunal Judge Appleyard

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 15 March 2017

Deputy Upper Tribunal Judge Appleyard