VA/17487/2013
- Case title:
- Appellant name:
- Status of case: Unreported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country:
- Judges:
The decision
IAC-FH-AR-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/17487/2013
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 17th December 2014
On 29th December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD
Between
mr OLIUR RAHMAN
(ANONYMITY DIRECTION not made)
Appellant
and
VISA OFFICER
Respondent
Representation:
For the Appellant: Mr N Ahmed, Solicitor, instructed by Lincoln's Chambers
For the Respondent: Miss J Isherwood, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant is a citizen of Bangladesh whose appeal to be allowed to enter this country for a family visit under paragraph 41 of the Immigration Rules was dismissed by First-tier Tribunal Judge Beg in a determination promulgated on 13th August 2014. Grounds for permission to appeal to the Upper Tribunal were lodged.
2. Firstly, it was said that the Sponsor was a person who was highly credible and reliable being a Minister of religion who had sponsored his father as a visitor in the past and sent him back to Bangladesh well before the expiry date of the visa.
3. Secondly, there was no concrete reason given for the judge's conclusion which was based on suspicion only. Furthermore, the judge had ignored relevant post-decision evidence which went to the "circumstances appertaining " at the date of decision and therefore had been wrongly rejected. It was said that the judge had taken into account irrelevant factors and had failed to appreciate that the Appellant was an established businessman earning a decent income in Bangladesh and that he had great incentives to return there. The judge's findings did not reflect this. Permission to appeal was duly granted.
4. Before me, Mr Ahmed reminded me that the sole issue before the First-tier Tribunal Judge had been whether or not the visit was a genuine one. The judge had made a number of errors as set out in the grounds. I was invited to set the decision aside and substitute a decision allowing the appeal. Failing that then the appeal should go back to the First-tier Tribunal for full consideration of the issues.
5. For the Home Office Miss Isherwood relied on the Rule 24 Notice and submitted there was no material error by the judge. She had been correct to find that there was no credible evidence before here to explain how within a period to two years the Appellant was able to build up his business to the extent mentioned (paragraph 9). She was correct to find that whilst she took into account that the Sponsor's father had come here and returned each applicant must be considered separately (paragraph 10). There was therefore no error of law in the determination which should stand.
6. I reserved my decision.
Conclusions
7. It transpired that I and both parties had conducted research into whether or not there was a full right of appeal in this case given the terms of Section 52(2) of the Crime and Courts Act 2013 which abolished the full rights of appeal in family visitor visa cases. However, it appears that applications submitted on or after 25th June 2013 are the ones that are affected and because this application was made before that date namely on 27th May 2013 the judge was correct to deal with the appeal on the basis that the Appellant had a full right of appeal under the Immigration Rules.
8. However it seems to me that the judge fell into error in a number of ways.
9. Specifically, the judge made no findings on the credibility or reliability of the Sponsor and his ability to ensure that the Appellant would return. The judge was wrong to dismiss evidence as being "post-decision" evidence for the reasons put forward by Mr Ahmed. The effect of the exclusion of that evidence might be said to be unclear but the judge seems to attach weight to the lack of credible evidence as to why the Appellant was able to build up his business so quickly - the connection with that finding and whether or not the Appellant was a genuine visitor is not entirely obvious. More importantly, it is unclear to me why the application was refused - the judge seems to have paid no attention to the fact that, on any view, the Appellant has substantial roots in Bangladesh and therefore a considerable incentive to return there at the conclusion of his visit.
10. In these circumstances I have hesitated on whether I can simply grant this appeal outright as Mr Ahmed urged me to do but I have concluded that the safest course of action is for the matter to be heard again by the First-tier Tribunal so that proper findings can be made on the integrity of the Sponsor to which Mr Ahmed attached considerable importance. What is clear is that the findings of the judge are inadequate and there is a lack of coherent reasoning. It therefore seems to me that, unfortunately, the matter will have to have to be heard again by the First-tier Tribunal.
11. The determination of the First-tier Tribunal is therefore set aside in its entirety. No findings of the First-tier Tribunal are to stand. Under Section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 the nature and extent of the judicial fact finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal. There is no need for an anonymity order.
Decision
12. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
13. I set aside the decision.
14. I remit the appeal to the First-tier Tribunal.
Signed Date 23rd December 2014
Deputy Upper Tribunal Judge J G Macdonald
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/17487/2013
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 17th December 2014
On 29th December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD
Between
mr OLIUR RAHMAN
(ANONYMITY DIRECTION not made)
Appellant
and
VISA OFFICER
Respondent
Representation:
For the Appellant: Mr N Ahmed, Solicitor, instructed by Lincoln's Chambers
For the Respondent: Miss J Isherwood, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant is a citizen of Bangladesh whose appeal to be allowed to enter this country for a family visit under paragraph 41 of the Immigration Rules was dismissed by First-tier Tribunal Judge Beg in a determination promulgated on 13th August 2014. Grounds for permission to appeal to the Upper Tribunal were lodged.
2. Firstly, it was said that the Sponsor was a person who was highly credible and reliable being a Minister of religion who had sponsored his father as a visitor in the past and sent him back to Bangladesh well before the expiry date of the visa.
3. Secondly, there was no concrete reason given for the judge's conclusion which was based on suspicion only. Furthermore, the judge had ignored relevant post-decision evidence which went to the "circumstances appertaining " at the date of decision and therefore had been wrongly rejected. It was said that the judge had taken into account irrelevant factors and had failed to appreciate that the Appellant was an established businessman earning a decent income in Bangladesh and that he had great incentives to return there. The judge's findings did not reflect this. Permission to appeal was duly granted.
4. Before me, Mr Ahmed reminded me that the sole issue before the First-tier Tribunal Judge had been whether or not the visit was a genuine one. The judge had made a number of errors as set out in the grounds. I was invited to set the decision aside and substitute a decision allowing the appeal. Failing that then the appeal should go back to the First-tier Tribunal for full consideration of the issues.
5. For the Home Office Miss Isherwood relied on the Rule 24 Notice and submitted there was no material error by the judge. She had been correct to find that there was no credible evidence before here to explain how within a period to two years the Appellant was able to build up his business to the extent mentioned (paragraph 9). She was correct to find that whilst she took into account that the Sponsor's father had come here and returned each applicant must be considered separately (paragraph 10). There was therefore no error of law in the determination which should stand.
6. I reserved my decision.
Conclusions
7. It transpired that I and both parties had conducted research into whether or not there was a full right of appeal in this case given the terms of Section 52(2) of the Crime and Courts Act 2013 which abolished the full rights of appeal in family visitor visa cases. However, it appears that applications submitted on or after 25th June 2013 are the ones that are affected and because this application was made before that date namely on 27th May 2013 the judge was correct to deal with the appeal on the basis that the Appellant had a full right of appeal under the Immigration Rules.
8. However it seems to me that the judge fell into error in a number of ways.
9. Specifically, the judge made no findings on the credibility or reliability of the Sponsor and his ability to ensure that the Appellant would return. The judge was wrong to dismiss evidence as being "post-decision" evidence for the reasons put forward by Mr Ahmed. The effect of the exclusion of that evidence might be said to be unclear but the judge seems to attach weight to the lack of credible evidence as to why the Appellant was able to build up his business so quickly - the connection with that finding and whether or not the Appellant was a genuine visitor is not entirely obvious. More importantly, it is unclear to me why the application was refused - the judge seems to have paid no attention to the fact that, on any view, the Appellant has substantial roots in Bangladesh and therefore a considerable incentive to return there at the conclusion of his visit.
10. In these circumstances I have hesitated on whether I can simply grant this appeal outright as Mr Ahmed urged me to do but I have concluded that the safest course of action is for the matter to be heard again by the First-tier Tribunal so that proper findings can be made on the integrity of the Sponsor to which Mr Ahmed attached considerable importance. What is clear is that the findings of the judge are inadequate and there is a lack of coherent reasoning. It therefore seems to me that, unfortunately, the matter will have to have to be heard again by the First-tier Tribunal.
11. The determination of the First-tier Tribunal is therefore set aside in its entirety. No findings of the First-tier Tribunal are to stand. Under Section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 the nature and extent of the judicial fact finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal. There is no need for an anonymity order.
Decision
12. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
13. I set aside the decision.
14. I remit the appeal to the First-tier Tribunal.
Signed Date 23rd December 2014
Deputy Upper Tribunal Judge J G Macdonald