Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08731/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 5 January 2018
On 11 January 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

H K M Z R K
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr P Georget (counsel) instructed by Tower Hamlets Law Centre
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS

1. To preserve the anonymity order made by the First-tier Tribunal, I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellant.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Beach promulgated on 2 June 2017, which dismissed the Appellant's appeal on all grounds.

Background

3. The Appellant was born on 27/09/1952 and is a national of Bangladesh.

4. The appellant entered the UK on 17 August 2007 with leave to enter as a visitor valid until 23 January 2008. On 9 February 2016 the appellant made a protection claim. On 5 August 2016 the respondent refused that protection claim.

The Judge's Decision

5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Beach ("the Judge") dismissed the appeal against the Respondent's decision. Grounds of appeal were lodged and on 20 September 2017 Judge Hollingworth gave permission to appeal stating

1. At paragraph 51 of the decision the Judge states that there was no separate article 8 claim on behalf of the appellant. This formed part of the grounds of appeal.

2. It is arguable the Judge should have dealt with it. The reference to article 8 appears under the heading "new matters".

The Hearing

6. (a) For the appellant, Mr Georget moved the appeal. He told me that the Judge completely failed to deal with the article 8 ECHR grounds of appeal, and so failed to exercise jurisdiction. He referred me to the Tribunal Courts and Enforcement Act 2007 & said that there is no statutory requirement for an error of law to be a material error of law. He told me that section 82(1)(a) of the Nationality Immigration and Asylum Act 2002 gives a right of appeal against refusal of a protection claim. Section 82 (1)(b) of the 2002 Act creates a separate right of appeal on ECHR grounds. There were therefore two separate appeals before the tribunal, and only one has been resolved.

(b) Mr Georget then sought leave to amend the grounds of appeal and sought extension of time so that he could argue an appeal against the refusal of the protection claim. He relied on rules 5 and 21 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Mr Georget acknowledged that the application for permission to appeal focused entirely on article 8 ECHR grounds. Permission to appeal reflected the grounds of appeal as framed and was granted on 20 September 2017. The decision under appeal with promulgated on 2 June 2017.

(c) Mr Georget told me that the proposed ground of appeal had merit because at [40] of the decision the Judge finds that the appellant is an Islamic teacher who makes public speeches. He argued that the background material indicated that the Awami league (who form the current government of Bangladesh) will not tolerate religiously motivated politics. He said the Judge's findings of fact indicates that the appellant is at risk because he is a man involved in religious politics. Mr Georget argued that an incorrect approach had been taken to the background materials, because the background materials before the First-tier related to the country situation in 2013/2014, and that the appellant's account should be viewed against the country situation when the appellant was in Bangladesh, prior to 2007. Mr Georget told me that there was a delay in seeking leave to appeal on this ground because those instructing him made a mistake when framing the grounds of appeal and did not adequately consider an appeal against the First-tier's finding on the appellant's protection appeal.

(d) Mr Georget's application was opposed by the senior Home Office presenting officer.

(e) I refuse to extend time and I refuse to allow additional grounds of appeal. No adequate explanation has been given for the delay of six months since the days of appeal expired. The respondent has not been given fair notice of the additional ground of appeal. I note that the additional ground of appeal focuses on the Judge's finding at [40] of the decision that the appellant was an Islamic teacher who gave speeches. At [40] of the decision the Judge also finds that the appellant does not prove that he was a member or a supporter of a particular political party, and that the background materials do not suggest that as an Islamic teacher he would become a target for threats from the state or others. No challenge is taken to the finding at [48] that the appellant is not a member of the Bangladeshi Islamic front.

(g) There is no justifiable reason either to extend time or to allow amendment to the grounds of appeal.

7. (a) Mr Walker, for the respondent, adopted the terms of the rule 24 response. The Home Office presenting officer's record of proceedings before the First-tier tribunal, together with the skeleton argument relied by counsel who addressed the First-tier tribunal. The Home Office presenting officer's minute says

Article 8 not relied on

The skeleton argument relies on articles 2 and three ECHR grounds and is entirely silent on article 8 ECHR grounds.

(b) Mr Walker told me that the appellant did not present any evidence driving at article 8 of the 1950 convention, and that no argument on article 8 ECHR grounds were presented to the First-tier, so that the decision does not contain an error of law. Mr Walker asked me to dismiss the appeal and allow the decision to stand.

Analysis

8. At the start of the appeal hearing I told parties' agents that I have the benefit of the Judge's legible record of proceedings. At the conclusion of the Home Office presenting Officer's submissions, the Judge notes

[No Art. 8 or Art.3 med. Grds]

The record of proceedings contains a detailed note of the submissions made by counsel for the appellant. Those submissions dwell on the protection claim. No submissions were made in relation to article 8 ECHR grounds.

9. The appellant's witness statement was adopted as his evidence in chief. Only paragraph 16 of the appellant's witness statement provides any evidence which might drive at article 8 ECHR grounds of appeal. There the appellant says

I have lived in the UK for nine years and I am 64 years old, I suffer from ill health. I suffer from high cholesterol, high blood pressure, gastric, arthritis and problems with my joints. I ask you to take these factors into consideration and deal with my appeal compassionately.

The appellant was asked supplementary questions, all of which were directed at the protection claim. The appellant was cross examined. The cross examination related to the protection claim. No questions were asked in re-examination.

10. The skeleton argument was relied on by counsel for the appellant before the First-tier. The skeleton argument focuses on the protection claim and article 3 ECHR grounds of appeal only.

11. The last sentence of 51 of the decision says

There was no separate article 8 claim on behalf of the appellant.

12. The decision does not contain a material error of law. The Judge accurately recorded that no article 8 ECHR grounds of appeal were pled. The three sentences which make up paragraph 16 of the appellant's witness statement do not amount to reliable evidence of the component parts of private life within the meaning of article 8 of the 1950 convention. Even though the grounds of appeal to the First-tier tribunal form the basis for article 8 ECHR grounds of appeal, those grounds of appeal were not moved.

13. In Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195, the Court of Appeal indicated that, although Article 8 and section 55 were mentioned in the Notice of Appeal, where no evidence had been adduced or submissions made before the First-tier Tribunal to support a claim under Article 8 of the ECHR, it could be treated as abandoned. The Court of Appeal said that even if that was wrong where there was evidential basis for the First-tier Tribunal to find in the appellant's favour in those circumstances the Upper Tribunal could not be said to have erred in refusing to allow permission to appeal on that ground. Additionally, when re-making the decision following the grant of permission to appeal on an unrelated ground, section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007 did not require the Upper Tribunal to carry out a complete rehearing of the original appeal.

14. In BM (Iran) (2015) EWCA Civ 491 the Appellant sought to argue that the FTTJ failed to take into account the Respondent's policy against removal to Iran in the Article 8 exercise. The Court of Appeal held that the FtT could not be said to have erred in law by failing to have regard to a point that was not raised before it. It was not an obvious point and there was nothing in the case law to alert the FtT to it, let alone support it. No evidential foundation had been laid down for it and the material before the FtT did not even contain the policy on which the argument was based

15. No reliable evidence of article 8 ECHR private life was placed before the tribunal. No submissions on the article 8 ECHR grounds of appeal were made. The result is that the article 8 ECHR grounds of appeal were not placed before the First-tier tribunal, even though the appellant had the option to plead those grounds of appeal. As a result, was no article 8 ECHR appeal before the judge.

16. In any event, at [52] the Judge dismissed the appeal under the 1950 convention and then in the final sentence of the decision the Judge said

I dismiss the appeal on protection and human rights grounds.

Insofar as the notice of appeal to the First-tier raised article 8 ECHR grounds, those grounds were effectively abandoned by the appellant. Even if they were not abandoned by the appellant, the decision clearly dismisses the appeal on human rights grounds.
17. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the Judge draws from the primary data were not reasonably open to him or her.
18. In this case, there is no misdirection in law & the fact-finding exercise is beyond criticism. The decision is not tainted by a material error of law. The Judge's decision, when read as a whole, sets out findings that are sustainable and sufficiently detailed.
19. No errors of law have been established. The Judge's decision stands.
DECISION
20. The appeal is dismissed. The decision of the First-tier Tribunal promulgated on 2 June 2017 stands.

Signed Paul Doyle Date 10 January 2018
Deputy Upper Tribunal Judge Doyle