Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) PA/01068/2018

THE IMMIGRATION ACTS

Heard at Glasgow
Decisions and Reasons Promulgated:
on 25 July 2019
on 2 August 2019

Before

UT JUDGE MACLEMAN

Between

M N [Z]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr S Winter, Advocate, instructed by Katani & Co, Solicitors
For the Respondent: Mr A Govan, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against the decision of FtT Judge Fox, promulgated on 12 November 2018, in terms of grounds filed with the UT on 18 February and permission granted on 13 March 2019.
2. Mr Winter at the outset withdrew the grounds directed against the outcome on asylum or protection, and indicated that it was no longer necessary to consider the typographical, grammatical and similar errors of expression in the decision. That concession was undoubtedly correct.
3. Mr Winter submitted further to the grounds directed against the outcome on human rights.
4. Those grounds are partly based on the appellant's husband's status as a refugee, and on the judge stating that as he has a travel document that would not prevent him from travelling to South Africa with the appellant. Developing that aspect, Mr Winter suggested that he might lose the possibility of accumulating 5 years' residence in the UK, and so qualifying for indefinite leave to remain. On reference to the underlying evidence, however, it emerged that in his witness statement the appellant's husband narrates that he became a UK citizen in January 2014.
5. The judge appears to have been led into this slip through submissions made for the appellant (see paragraph 59).
6. Whatever the source of the error, once it is corrected it tends to make the appellant's case worse, not better.
7. Apart from that factual matter, the grounds and submissions focused on the judge's formulations of the legal tests for an appellant to have a right to remain in the UK on human rights grounds.
8. The formulation at paragraph 54 on when to look beyond the rules is perhaps dubious. The selection of a case to cite is surprising, but not wrong. The rest of that paragraph appears broadly correct.
9. Mr Winter correctly identified that at paragraphs 59 and 62 the judge muddles up tests which apply inside the rules (the correct starting point) and outside the rules. At 62 he says that the appellant has not shown that her return would be "unduly harsh or impossible". Impossibility is not a test.
10. Mr Winter submitted that the decision should be set aside and reversed.
11. That was based on the evidence which had been before the FtT, and the submissions made in the UT, no application being made to introduce further evidence.
12. I did not call upon Mr Govan, and indicated that the outcome would be as follows.
13. In Muhammad Arslan Khan v SSHD [2016] CSIH 13 the Lord President said at [13]:
"It is important not to over-complicate the exercise which the immigration tribunals require to carry out in this relatively common situation. Elaborate re-statements of multi-facetted tests are seldom necessary at first instance level."
14. Similarly, in ETA v SSHD [2017] EWCA Civ 10 at [27]:
"Decisions of tribunals should not become formulaic and rarely benefit from copious citation of authority. Arguments that reduce to the proposition that the FtT has failed to mention dicta from a series of cases in the Court of Appeal or elsewhere will rarely prosper."
15. Mr Winter has done his best to show error in the judge's legal self-directions, and has shown that the judge jumbled up and even mis-stated the relevant tests. Misstatement takes the case a little beyond the above citations.
16. If the matter had been finely balanced on the facts, that might have been enough for the decision to be set aside. This, however, was no such case. No feature could be identified by which it might sensibly have been held that the appellant has a right to remain in the UK on human rights grounds, either within the terms of the rules (designed in this respect to reflect the UK's human rights obligations) or outside the rules.
17. The judge made errors, but not of such a nature as to require the decision to be set aside.
18. Alternatively, had the decision being set aside, I would have found without hesitation that on the evidence the appellant had no right on human rights grounds to remain in the UK.
19. The decision of the First-tier Tribunal shall stand.
20. No anonymity direction has been requested or made.

25 July 2019
UT Judge Macleman