Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/02690/2016
PA/02339/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 18th August 2016
On 2nd September 2016

Before

upper tribunal JUDGE MACLEMAN

Between

mohammed sunu miah
urfol sunu
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellants: Mrs M Ahammed, instructed by RMS Immigration Limited, London
For the Respondent: Mrs Pettersen, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellants are citizens of Bangladesh, husband and wife. They have no children. They came to the UK in July 2005 with leave as visitors, valid until January 2006. There have been various proceedings since then, during which they have not succeeded in establishing any right to remain in the UK, in or out of the Immigration Rules.
2. The decision of the respondent giving rise to these proceedings is dated 26th February 2016. It finds that the appellants have no well-founded fear of persecution on return to Bangladesh, and rejects their claim on all other available grounds, including private and family life.
3. In her decision promulgated on 19th May 2016 First-tier Tribunal Judge Bird dismissed the appellants' appeals "under the Refugee Convention" and "under the Immigration Rules".
4. The appellants were present at the hearing before Judge Bird, and initially had representation, but their representative withdrew before the substantive hearing began. They indicated that they were ready to go ahead without representation.
5. The grounds of appeal complain that the judge did not consider the private and family life of the appellants, either in or out of the Rules. The appellants also assert again that they would be at risk in Bangladesh.
6. On 16th June 2016 First-tier Tribunal Judge Andrew granted permission to appeal, on the grounds that the judge arguably erred by failing to consider Article 8.
7. Mrs Pettersen advised at the outset of the hearing that the respondent's file disclosed that while there did not appear to have been any significant submission about Article 8 at the hearing in the FTT, such matters had been part of the grounds of appeal to the FtT, and there was no record of a concession.
8. Mrs Pettersen tendered some further documents, which she said were intended to bring out the complete procedural history. The first appellant had asked for a reconsideration of his case under Article 8 of the ECHR on 31st May 2013. The respondent refused that application by letter served on him on 4th February 2014, which advised him that it was not considered that he had private or family life in the UK such as to give him any right to remain, and that his claim was clearly unfounded in terms of section 94(2) of the 2002 Act, so that he had no right of appeal. Notwithstanding the terms of that decision, the appellant purported to appeal to the First-tier Tribunal. In a decision dated 7th and issued on 13th May 2014, First-tier Tribunal Judge Agnew held that there was no right of appeal.
9. Mrs Ahammed had no objection to these documents being introduced. She said that there was no dispute about the history of proceedings involving the appellants.
10. Further to the grounds, Mrs Ahammed said that it was now conceded that Judge Bird failed to deal with Article 8. That was bound to be material. As to the substance of the Article 8 claim, she relied upon a skeleton argument. She submitted that a decision should be substituted, allowing the appeal on Article 8 grounds.
11. The written submissions rely upon the length of time the appellant and his wife have spent in the UK, the fears which they have if they were to return, and the general scope of Article 8 jurisprudence.
12. Ms Pettersen's response referred to pages 13 and 14 of the respondent's decision, which she said deal thoroughly with Article 8 matters. Although Judge Bird had erred in not addressing these, there was no substantial basis on which any judge might reasonably have allowed the appeal on private and family life grounds, in or out of the Immigration Rules. The appellants would return together as a family unit to Bangladesh. They have spent a considerable time in the UK, but they have spent more of their lives there. There was no reason to think that they would have any significant difficulties on return. Their alleged problems had been thoroughly rejected by the judge, for reasons in which no factual or legal error was suggested. There were some medical issues referred to, but no basis on which the appeal could succeed. It was clearly not disproportionate to require the appellants to leave the UK in accordance with the Immigration Rules.
13. In response, Mrs Ahammed referred again to the significant difficulties the appellants said they would encounter on return. It would not be easy for them to re-establish themselves. It would not be easy for the first appellant to find a job. There were significant obstacles to their reintegration in Bangladesh, so the appeal should be allowed either in terms of paragraph 276ADE(vi) of the Rules, or outside the Rules.
14. I reserved my determination.
15. It may be understandable that the appellants prefer to continue living in the UK, but they have failed over many years to establish that they have any right to do so, and there is nothing in their present circumstances which gives them a right to remain. The respondent's decisions involve no disproportionate consequences.
16. It is difficult to imagine that any judge might have found sustainable reasons to allow the appeal on the basis of private and family life, in or out of the Rules. However, it is preferable for there to be an explicit resolution of the Article 8 grounds.
17. The decision of the First-tier Tribunal is set aside. The following decision is substituted: the appeal is dismissed on all available grounds, including family and private life grounds, whether advanced under the Rules or outwith the Rules.
18. No anonymity direction has been requested or made.

1 September 2016
Upper Tribunal Judge Macleman