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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments |
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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> HU102862019 [2021] UKAITUR HU102862019 (4 October 2021) URL: http://www.bailii.org/uk/cases/UKAITUR/2021/HU102862019.html Cite as: [2021] UKAITUR HU102862019 |
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Asylum and Immigration tribunal-b&w-tiff
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10286/2019
THE IMMIGRATION ACTS
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Heard at Field House, London |
Decision & Reasons Promulgated |
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On Friday 20 August 2021 |
On Monday 04 October 2021 |
Before
UPPER TRIBUNAL JUDGE SMITH
Between
MRS MAHMUDA RAHMAN
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Mr S Kamal, solicitor of Reza Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer
DECISION AND DIRECTIONS
PROCEDURAL BACKGROUND
1. By a decision made on the papers without a hearing and dated 25 August 2020, I found an error of law in the decision of First-tier Tribunal Judge Obhi promulgated on 29 October 2019 dismissing the Appellant's appeal. I therefore set aside that decision and gave directions for a resumed hearing in this Tribunal. My error of law decision is annexed hereto for ease of reference. Notwithstanding the High Court's judgment in JCWI v The President of the Upper Tribunal (IAC) [2020] EWHC 3103 (Admin) neither party has sought to set aside my decision.
2. The resumed hearing was listed before me on 25 November 2020. That hearing had to be adjourned due to a lack of preparedness on the part of the Respondent. The Senior Presenting Officer had not seen my error of law decision. As I will come to, the Appellant's circumstances had also changed as a result of the birth of her child. It was accepted by the Respondent that the Tribunal could consider that changed circumstance and the Senior Presenting Officer suggested that the adjournment would also give time for reconsideration of that changed circumstance. My adjournment decision is also annexed hereto for ease of reference.
3. In my adjournment decision, I gave directions requiring the parties to file further evidence relevant to the immigration chronology in this case which is particularly complex. The Respondent has not complied with those directions. For reasons I will come to, however, I consider that I am in a position to determine the issues in this case without that further evidence.
4. I have before me a bundle of core documents including the Respondent's bundle, the Appellant's bundle as before the First-tier Tribunal (referred to hereafter as [AB/xx]), the Appellant's bundle prepared for the November hearing (referred to hereafter as [AB2/xx]) and the Appellant's bundle for this hearing (referred to hereafter as [AB3/xx]). I also have as a separate document a chronology prepared by Ms Cunha who appeared for the Respondent at the November hearing and which I have found useful in order to set out the Appellant's immigration history. I also have a skeleton argument for the Appellant. Although the Appellant and her husband were both present at the hearing, it was not suggested that I should hear oral evidence from them. Mr Kamal indicated that it was not necessary to call them and Mr Tufan did not ask to cross-examine them.
FACTUAL BACKGROUND
5. It is necessary to set out the Appellant's immigration history in some detail due to the importance of this to her status now.
6. The Appellant came to the UK on 22 October 2012 as the spouse of her husband, Mr Razzak Hossain who was in the UK as a Tier 2 migrant. She was named as the dependant on her husband's application made on 22 January 2015 for further leave in that capacity. That application was refused by the Respondent on 9 December 2015 on the basis that the Appellant's husband had used a proxy test taker when sitting an English language test ("the ETS allegation"). The Appellant and her husband appealed. The appeal decision promulgated on 17 July 2017 is at [AB/158-162]. The appeal was allowed on the basis that the ETS allegation was not made out. The Judge purported to remit the Tier 2 application to the Respondent to decide whether the certificate of sponsorship relied upon related to a genuine vacancy. It is not clear to me that the Judge had any jurisdiction to do this. The appeal could only be on the ground that the Respondent's refusal breached the Appellant's (and her husband's) human rights. The appeal was on that basis allowed.
7. No leave to remain was subsequently granted based either on the outcome of the appeal or the Tier 2 application. As appears from a letter dated 5 October 2017 at [AB/155], the Respondent indicated that she would aim to implement the Judge's decision as soon as possible. There is nothing to indicate that any leave was subsequently granted. It is however worthy of note that the Appellant's case and that of her husband on whose application she was at the time dependent were being handled by the "Post Decision Casework Unit".
8. On 26 October 2018, Mr Hossain's solicitors made an application for him to remain based on his long residence. This application was therefore for indefinite leave to remain ("ILR") and not as a Tier 2 migrant or for limited leave to remain based on Article 8 ECHR. The covering letter to that application is at [AB3/56-61]. I record that the application is made only in the name of Mr Hossain. There is no mention of the Appellant. I was shown by Mr Tufan the Home Office's Long Residence Guidance Version 16.0 which states in terms that "[t]here is no provision within the Immigration Rules for an applicant to include dependants on a long residence application". It is stated very clearly that "[d]ependants must make their own sole applications if they wish to rely on the 10 year long residence rule." Of course, by that time, the Appellant had not lived in the UK for ten years. Indeed, she has not done so even now. She could not make an application on that basis in her own right.
9. On 7 November 2018, Mr Hossain's solicitors again wrote this time to the Post Decision Casework Unit. The letter is at [AB3/61]. Again, that letter is headed with reference only to Mr Hossain. There is no mention of the Appellant. The content of that letter is of importance, and I therefore set it out in full:
" RE: VARIATION OF APPLICATION; MR RAZZAK HOSSAIN, DOB: 12/12/84: BANGLADESHI NATIONAL
Dear Sirs,
We act for the above named person. We refer to your letter dated 5 October 2017 - copy attached.
We understand that the implementation of the appeal decision of the above case will be undertaken by the Post Decision Casework Unit in Sheffield. However, our client made a variation application on 26 October 2018 for indefinite leave to remain in the United Kingdom as his material circumstances have been changed. Therefore, his previous application (Case ID: 018846200) has been varied to his present application (Royal Mail Ref: AF434986773B). Please update your records.
If we can be of further assistance, please do not hesitate to contact us."
[my emphasis]
10. That then led it appears to a refund of an application fee ([AB3/62]). It is not entirely clear which fee was being refunded. However, since the Respondent went on to grant the application for long residence, it must be assumed that the refund related to the application which was at that time pending reconsideration and implementation. The long residence application was granted on 8 March 2019 ([AB3/63-64]). As with the application itself, the grant related only to Mr Hossain. There is no mention of the Appellant. Since the grant of ILR, Mr Hossain has gone on to naturalise as a British citizen. As I will come to, Mr Hossain's status means that the Appellant's child is also a British citizen.
11. The Respondent's position is that the Appellant's leave came to an end when her husband's application which was pending implementation/reconsideration was varied. As she was a dependant on that application and had no application pending in her own right, whatever the intention of the Appellant and her husband, I consider that this is correct as a matter of law.
12. The Respondent says in her decision under appeal that the application was voided at the Appellant's request on 21 November 2018. The Appellant disputes that any such request was made. I can find no document of that date nor any express request but I consider that to be consistent with the dates of the correspondence concerning variation and the subsequent refund of the fee for the pending application. Any delay between 7 November 2018 when Mr Hossain's solicitors wrote expressly requesting to vary the decision and the 21 November date is probably explained by delay in receipt and action by the Home Office. The reference in the decision under appeal to a request to void the application can only be read as a reference to the 7 November 2018 letter.
13. There is nothing to explain why, in those circumstances the Appellant's solicitors waited until 14 January 2019 before making an application in her name. The covering letter to that application is at [AB/11-15]. It is similarly headed up as a variation application this time for "leave to remain/discretionary leave to remain in the United Kingdom based on family life as a partner, human rights and compassionate grounds". It is explained in the letter that the Appellant's husband had already applied for ILR. However, although it is stated that the Appellant wished to apply for leave to remain as the spouse of a settled person, her husband did not by that time have ILR. It was not granted until March 2019. That therefore does not explain the delay in making this application.
14. The letter asks for the Appellant's application to be considered alongside her husband's but there is no explanation why she did not make this application at the same time as her husband's application. It is asserted that the Appellant had not overstayed for more than fourteen days because her section 3C leave had been extended by the outstanding reconsideration/implementation of the appeal decision. As I have already concluded, however, that was incorrect as that earlier application on which the Appellant was a dependant had already been varied by the long residence application. By the time the application was made in her own right, therefore, the Appellant had already been an overstayer for well over one month. She has remained an overstayer since.
15. The final factual point of note is the birth of the Appellant's daughter on 16 August 2020 ([AB2/46]). She is a British citizen.
LEGAL FRAMEWORK
16. As the Appellant was at the date of the application an overstayer and had overstayed for more than fourteen days, she is unable to meet all of the eligibility requirements in the Immigration Rules ("the Rules"). She can however succeed within the Rules if she meets EX.1 of Appendix FM to the Rules ("EX.1") either as a result of her relationship with her husband or as the mother of a British citizen child.
17. Paragraph EX.1 reads as follows:
" EX.1. This paragraph applies if
(a)
(i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK; or
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or ..., and there are insurmountable obstacles to family life with that partner continuing outside the UK.
EX.2. For the purposes of paragraph EX.1.(b) 'insurmountable obstacles' means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner."
18. Even if the Appellant does not satisfy the test under EX.1, I must still consider whether, having regard to the balance between the interference with the private and family lives of the Appellant, her husband and child on the one hand and the public interest on the other, removal of the Appellant would have unjustifiably harsh consequences for the Appellant and her family (see Gen 3.2(2) of Appendix FM to the Rules - "Appendix FM"). That the outcome of consideration under EX.1 is not determinative of the appeal in this case is made plain by what is said by the Supreme Court in Agarko and Ikuga v Secretary of State for the Home Department [2017] UKSC 11 ( " Agyarko") at [45] as follows:
" 45. By virtue of paragraph EX.1(b), 'insurmountable obstacles' are treated as a requirement for the grant of leave under the Rules in cases to which that paragraph applies. Accordingly, interpreting the expression in the same sense as in the Strasbourg case law, leave to remain would not normally be granted in cases where an applicant for leave to remain under the partner route was in the UK in breach of immigration laws, unless the applicant or their partner would face very serious difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship. Even in a case where such difficulties do not exist, however, leave to remain can nevertheless be granted outside the Rules in 'exceptional circumstances', in accordance with the Instructions: that is to say, in 'circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate'.."
Mr Tufan very fairly accepted that to be the position.
19. When considering the public interest question outside the Rules, I have to have regard to the factors in section 117B Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") ("Section 117B"). That includes the need for the maintenance of effective immigration control. It also includes the issue whether it is reasonable for the Appellant's minor British child to be expected to return to Bangladesh (Section 117B(6)).
20. As is made clear by section 55 Borders, Citizenship and Immigration Act 2009 ("Section 55") and EX.1, I must have regard to the best interests of the Appellant's child. That includes having regard not only to the present impact on that child of removal of her mother but also the impact in terms of that child's citizenship. As was said by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at [41] of the judgment:
"... there is much more to British citizenship than the status it gives to the children in immigration law. It carries with it a host of other benefits and advantages, all of which Lady Hale has drawn attention to and carefully analysed. They ought never to be left out of account, but they were nowhere considered in the Court of Appeal's judgment. The fact of British citizenship does not trump everything else. But it will hardly ever be less than a very significant and weighty factor against moving children who have that status to another country with a parent who has no right to remain here, especially if the effect of doing this is that they will inevitably lose those benefits and advantages for the rest of their childhood."
21. The best interests of the child are a primary consideration although not paramount. The weight to be given to the rights of a British citizen child in this scenario is however echoed in comments made by the Court of Appeal in MA (Pakistan) and others v Secretary of State for the Home Department [2016] EWCA Civ 705.
22. As the Supreme Court made clear in KO (Nigeria) and others v Secretary of State for the Home Department [2018] UKSC 53 (" KO (Nigeria)"), the issue whether it is reasonable to expect the child to leave has to be considered in the real world context. The Supreme Court made the following observations:
"18. On the other hand, as the IDI guidance acknowledges, it seems to me inevitably relevant in both contexts to consider where the parents, apart from the relevant provision, are expected to be, since it will normally be reasonable for the child to be with them. To that extent the record of the parents may become indirectly material, if it leads to their ceasing to have a right to remain here, and having to leave. It is only if, even on that hypothesis, it would not be reasonable for the child to leave that the provision may give the parents a right to remain. The point was well-expressed by Lord Boyd in SA (Bangladesh) v Secretary of State for the Home Department 2017 SLT 1245, [2017] ScotCS CSOH_117 :
'22. In my opinion before one embarks on an assessment of whether it is reasonable to expect the child to leave the UK one has to address the question, 'Why would the child be expected to leave the United Kingdom?' In a case such as this there can only be one answer: 'because the parents have no right to remain in the UK'. To approach the question in any other way strips away the context in which the assessment of reasonableness is being made ...'
19. He noted (para 21) that Lewison LJ had made a similar point in considering the "best interests" of children in the context of section 55 of the Borders, Citizenship and Immigration Act 2009 in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874, para 58:
'58. In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?'
To the extent that Elias LJ may have suggested otherwise in MA (Pakistan) para 40, I would respectfully disagree. There is nothing in the section to suggest that 'reasonableness' is to be considered otherwise than in the real world in which the children find themselves."
23. As the Supreme Court also made clear in KO (Nigeria), the issue of reasonableness in relation to the expectation of a child leaving the UK has to be determined by reference to the impact on that child alone. That question does not involve consideration of the parents' immigration history. It is only once one gets to the balance between interference and public interest that the immigration history of the parents has a part to play. As the extract from KO (Nigeria) which I have set out shows, however, the issue of reasonableness has to be considered against the background of the immigration status of one or both of the parents.
24. Finally, I need to refer to the Tribunal's entitlement to consider the position of the child. That is a matter which has arisen since the Appellant's application was made in January 2019 and indeed since the application was refused in June 2019 by the decision under appeal. It is therefore a "new matter" which the Tribunal does not have jurisdiction to consider without the consent of the Respondent (section 85(5) of the 2002 Act - "Section 85(5)")). At the time of the adjournment decision in November 2020, the view was taken by this Tribunal in Birch (Precariousness and mistake: new matter: Jamaica) [2020] UKUT 86 (IAC) (" Birch") that Section 85(5) did not preclude this Tribunal (as distinct from the First-tier Tribunal) from considering any such new matters without the consent of the Respondent. Since then, the Tribunal in Hydar (s120 response; "new matter": Birch) [2021] UKUT 176 (IAC) has determined that approach to be incorrect (see (3) of the headnote). Nonetheless, in this case, Ms Cunha had indicated at the previous hearing that the Respondent wished to reconsider the Appellant's position in light of the birth of her child and, although that has not happened, Mr Tufan accepted that this was an indication by the Respondent that she was content for the new matter to be considered and he accepted that the Tribunal should consider it. I therefore have the Respondent's consent to take into account the impact of the Appellant's removal on her child.
EVIDENCE, FINDINGS AND DISCUSSION
25. Set against that legal framework, I then turn to consider the evidence. I do not need to repeat what I have said about the immigration history of the Appellant or her husband. That is set out under the heading of "Factual Background" and includes my finding that the Appellant is an overstayer albeit it clearly was never her intention to overstay. I have regard in particular to what is said by the Appellant in her statement dated 22 July 2021 ([AB3/13-15]) that, following her and her husband's successful appeal, she was waiting for leave to be granted (§ 5). I also have regard to her assertion (which I accept) that she did not expressly ask for the previous application to be voided (§16). Unfortunately for her, she was only a dependant on that previous application and the effect of her husband varying the application on which she was a dependant to one on which she could no longer be a dependant has had unforeseen consequences for her. She says in that paragraph that she is entitled to a refund, but she is not. The previous application was made by her husband, and he did receive a refund of the fee ([AB3/62]).
26. Unfortunately, the Appellant does not explain what led to the making of the application in January 2019 and why that could not be made at the same time as or very shortly after the variation application made by her husband. It cannot be suggested that she was awaiting the outcome of her husband's application for ILR before making her application as it was made whilst her husband's application for ILR remained pending. It may be that her then solicitors realised the predicament in which they had placed her by their actions in relation to her husband and sought to remedy it. That is however somewhat speculative on my part. However, I do take into account that at some point the Appellant and those advising her must have realised the situation in which she had been placed and sought to remedy it. The Appellant did not simply bury her head in the sand until her husband's situation was resolved and deliberately overstay in the meanwhile. That is to her credit.
27. The Appellant's application was refused by the Respondent only on the basis that she is unable to meet the immigration status requirement unless EX.1 applies. It is accepted that the Appellant meets the eligibility requirement as regards her relationship with a person settled in the UK (now also a British citizen). It is accepted that the suitability requirements are met. It is also accepted that both the financial and English language requirements of Appendix FM are met.
28. I turn then to consider whether EX.1 is met. Before I deal with this, I ought to clear up one oddity about this case. It is said in the Appellant's husband's witness statement at [AB3/17-18] that the Appellant cannot be expected to leave the UK and go to Pakistan not least because she is Bangladeshi (§17-18). I suspect this arises from an error in the Respondent's decision letter which refers in the heading to the Appellant being from Pakistan. As is confirmed by her passport at [AB3/19], she is from Bangladesh as is her husband. Both were born in Sylhet. The issue I have to consider therefore is whether it would be unreasonable for the Appellant's child to go to live in Bangladesh and whether there would be insurmountable obstacles to the Appellant and her husband continuing their family life in that country.
29. I begin with the position of the Appellant's child since her best interests are in any event a primary consideration within my assessment.
30. The Appellant's child is now aged one year. It is self-evident that, at that age, her best interests are to remain with both her parents who are in a genuine and subsisting relationship. At her very young age, probably the more important of her parents for her purposes is her mother but I accept that it is in her best interests to remain with both her parents.
31. The child's father is a British citizen and is entitled to remain in the UK. He cannot forcibly be removed. Equally, however, in circumstances where his wife has no right to remain, if she were to be removed, I have no reason to think that he would not leave with her and their child. I have already dealt with the point he makes about the Appellant not being able to go to live in Pakistan. She would be returning to Bangladesh. He says that he has a private and family life in the UK through his residence and work but offers very little detail (see below). He is a British citizen but that is not of itself reason why family life could not be continued in Bangladesh (see Agyarko in this regard). He says in his statement at [AB/8] that he could not bear to be separated from his wife even for a day (§6).
32. I consider it likely therefore that if the Appellant were to be removed, her husband and child would accompany her. That is the real world situation which would face the family.
33. I have very limited if any information about the child. It is not suggested that the child is other than a healthy baby. Although she is a British citizen, that is not something of which she will yet be aware. Both her parents are Bangladeshi and will be very familiar with the culture of that country. Her father left in 2009 and her mother in 2012. I am not told if they still have other family members in Bangladesh but even if they do not, there is no reason why either or both parents would be unable to find work in Bangladesh. I am provided with no evidence that they would be unable to do so.
34. I take into account the citizenship of the child. I am aware that removal of her mother would entail a loss of benefits for the child if she were to return to Bangladesh. That is a factor to which I give some weight and I accept that for that reason her best interests are favoured by remaining in the UK with her parents. However, overall her best interests are more strongly in favour of remaining with her parents wherever they are living. I have no evidence to show that it would not be reasonable to expect the child to return to Bangladesh with her parents. EX.1 is not for that reason met by the Appellant's relationship with her child.
35. As is evident from what I say above, I cannot find either that there are insurmountable obstacles to the Appellant's family life with her husband continuing in Bangladesh.
36. In his statement dated 7 October 2019 ([AB8-9), the Appellant's husband says the following about return to Bangladesh:
"7. I have been working full time with Surma Travels (UK) Private Ltd as an Account Manager. My income is around £35,000.00 which is more than £18,600 (the current financial requirement). We submitted specified documents in support of the income with the original application. My wife has also been working as a carer with Care Solution Breau [sic] CIC in the United Kingdom. She gets monthly £800 from my job. The nature of my work does not allow me to access more than three weeks leave and if my partner goes to Bangladesh it will be hard for me to sustain to my obligations, job contract, as well as my relationship with my partner. Also, my partner cannot go to Bangladesh because she has been receiving fertility treatment from the NHS since 2017.
8. I am very independent and able to lead my life independently in UK. I have the flat which I am renting and I was solely responsible for all expenses. I will not be able to live a life in Bangladesh that I already have developed in UK and it will put me in to a risk of my life and career. We have planned to buy our own house and have personnel [sic] mortgage in the future to have secured future and better life. My dream will be shattered as well as her if we are to be separated from each other and it will have huge impact on our future life.
9. I strongly believe that Bangladesh is not suitable for my partner and for me because she cannot provide shelter or bear the living expenses.
10. We have been living in the UK for many years. We have been adopted UK's culture, beliefs and life style as clearly we cannot live in Bangladesh. Most important of our life time we have spent in UK.
11. Most importantly, my partner and I have been living together for a long time and we were not blessed with a child yet. My partner has been receiving treatments in this regard. If she were to return to Bangladesh, she would not receive same treatment as treatments are not free in Bangladesh.
12. We have close families living in UK who are British citizen and we have very good close relationship with them. We have close relationship and share good bonding with our close relatives. I cannot imagine living in Bangladesh. It would be wholly unjust for me and my partner to return to Bangladesh."
What is there said is echoed in almost identical terms by the Appellant in her statement of the same date at [AB/5-6].
37. There have of course been some developments since those statements. The couple now have a child. There is no evidence of continuing fertility treatment nor any evidence that such treatment is not available in Bangladesh. The Appellant's husband speaks of moving to Bangladesh to be a risk to his life but does not provide any particulars. He has never made any protection claim. The Appellant and her husband were apparently at the time of their statements living with his uncle who is a British citizen and has lived in the UK since 2002. However, other than confirming that they lived with him in 2019 ([AB/26]) there is no information about the uncle's family or their relationship between them and the Appellant and her husband. The only evidence about that family is to be found in the Appellant's application at [AB/44] indicating that she and her husband live with his uncle and aunt and that they have two minor children. There is no other evidence from those family members.
38. The Appellant's husband was in his twenties when he came to the UK. He grew up in Bangladesh and was educated there. The Appellant was similarly in her early twenties when she came here as her husband's dependant. The couple married in Bangladesh in 2012 ([AB3/25]). At that time, it appears from the Nikahnama at [AB3/26-27] that both sets of parents were alive and living in Sylhet. According to the Appellant's application ([AB/27-48]), the Appellant has "some friends and family in Bangladesh". Both the Appellant and her husband speak Bengali. Perhaps the clearest evidence that the Appellant and her husband could continue their family life in Bangladesh comes in the response given to the question in the application seeking an explanation why they could not live together outside the UK. The response given is "N/A AS IT IS NOT DISPROPORTIONATE TO RETURN TO BANGLADESH" ([AB/37]). I consider the evidence about obstacles to the couple living in Bangladesh as set out in their statements to be overstated. There is no evidence beyond their mere assertions that they could not do so.
39. For the foregoing reasons, I do not accept that EX.1 is met either by reason of the Appellant's relationship with her child or her husband.
40. Nevertheless, I must go on to consider the position outside the Rules. When doing so, I again have regard to the best interests of the Appellant's child as well as the other factors in Section 117B.
41. I have already made the finding that it is not unreasonable to expect the Appellant's child to go with the Appellant to Bangladesh if she is removed. That is also therefore the position under Section 117B (6). Nonetheless, when assessing the interference under the Rules I also have regard to my previous finding that the child's best interests are favoured by remaining in the UK so that, as she grows up, she can exercise the rights and privileges which come with her British citizenship.
42. The Appellant speaks English and meets the financial requirements of the Rules. Those are neutral factors when considering Section 117B, but I take into account that the factors are not adverse to her. The financial documents in the Appellant's evidence confirm that the Appellant's husband is working and earning a good income. The bank statements etc show healthy balances. The family is clearly self-sufficient.
43. Whilst there is limited evidence of the family's integration in the UK, the Appellant and her husband have both worked here and both speak English. I do not have evidence from their family members or any friends they have in the UK, but I accept that they are integrated here having spent nine and twelve years respectively in the UK. The Appellant's husband has taken the step of acquiring British citizenship.
44. Although the couple retain ties to Bangladesh and have not shown there to be insurmountable obstacles to being able to continue their family life in that country, I accept that there would be disruption to their private and family lives if the Appellant were removed to Bangladesh and her husband and child were to follow her. That disruption is not insignificant given their length of residence, work and the citizenship of their child.
45. The issue then becomes one of justification and proportionality. Would the interference be unjustifiably harsh? That involves consideration of the very unusual aspects of this case. The Appellant's husband has always been lawfully resident in the UK as accepted by the Respondent when granting him ILR. Whilst an ETS allegation was made against him, that was not upheld on appeal. There can therefore be no criticism of him as regards his immigration history.
46. The Appellant and her husband followed the Rules when seeking to come to the UK. The Appellant was granted entry clearance to come here as her husband's dependant based on his work in the UK. The reasons why the application for further leave failed were not upheld on appeal. The couple could therefore have expected to be granted further leave and, in due course, to be entitled to remain indefinitely. The Appellant's husband was in the UK as a Tier 2 migrant on a potential route to settlement.
47. The Appellant's and her husband's appeals were allowed by a Judge in July 2017. It was not until October 2017 that the Home Office wrote to their solicitors indicating that the outcomes would be implemented ([AB/155]). By October 2018 when the Appellant's husband applied for ILR, the appeal decision still had not been implemented. At that stage, the Appellant still benefitted from section 3C leave. Had it not been for the Respondent's delay in implementing the appeal decision, therefore, the Appellant would have been granted further leave which is likely still to have been extant when her husband sought to vary his leave and would not have left her in the position in which she found herself.
48. Although, as I have already noted, there is no explanation why the application for the Appellant was not made at the same time as her husband's application for ILR, she was at that time advised by the same solicitors as were acting for her husband. I can only assume that they did not realise the consequences of their actions and the detriment which this would cause for the Appellant. Once that was apparently appreciated, she acted to seek to remedy it. It is perhaps unfortunate that those advising her did not accept the part they played in her predicament and did not accept from the outset that she had overstayed but with good reason due to the complexity of the immigration status position. Nonetheless, that this was a complex history is evident from the previous decisions in this appeal. I accept that the Appellant did act to remedy the situation within a reasonable time although that was not within a timescale which would have allowed the overstaying to be disregarded.
49. I accept of course that the maintenance of effective immigration control is in the public interest and is favoured by not permitting those with no right to remain within the Rules to stay in the UK. However, in this case, I do not consider that to be a strong public interest. That is in part due to the Respondent's contribution to the Appellant's situation by her own delay in implementing the successful appeal decision and in part because of the complexity of the immigration status position as a result of that failure. The Appellant sought to regularise her position once it became clear that she needed to do so. Prior to that time, she had acted within the Rules. She has admittedly overstayed as a result now for nearly three years but that is due to having no leave at the time of her application and the consequence of spending time since seeking to vindicate her position.
50. Whilst the interference caused by removal of the Appellant would not have such significant impacts as to permit her to meet EX.1, there would still be impacts for her and her husband and child who are both British citizens. The interference with their private and family lives would be harsh although not significantly so. On the other hand, however, I do not consider the public interest to be a strong factor in this case for the reasons I have explained above. Balancing the one against the other, I have reached the conclusion that, although the case is finely balanced, the interference just outweighs the public interest. For that reason, the impact of removal on the Appellant and her family is unjustifiably harsh and therefore the decision to remove is disproportionate.
CONCLUSION
51. Removal of the Appellant would have unjustifiably harsh consequences for the Appellant and her family. The decision to remove is therefore disproportionate and amounts to a breach of section 6 Human Rights Act 1998. I therefore allow the appeal.
DECISION
The refusal of the Appellant's human rights claim breaches section 6 Human Rights Act 1998. I therefore allow the appeal.
Signed: L K Smith Dated: 24 August 2021
Upper Tribunal Judge Smith
APPENDIX: ERROR OF LAW DECISION
Asylum and Immigration tribunal-b&w-tiff
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10286/2019 (P)
THE IMMIGRATION ACTS
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Decided under Rule 34 without a hearing |
Determination promulgated |
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On Tuesday 25 August 2020 |
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Before
UPPER TRIBUNAL JUDGE SMITH
Between
MRS MAHMUDA RAHMAN
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
DECISION AND DIRECTIONS
BACKGROUND
1. The Appellant is a national of Bangladesh. She is the spouse of Mr Razzak Hossain who is now settled in the UK. She came to the UK as his dependent in 2012. She appeals against the decision of First-tier Tribunal Judge Obhi promulgated on 29 October 2019 ("the Decision"). By the Decision, the Judge dismissed the Appellant's appeal against the Respondent's decision dated 4 June 2019 refusing her human rights claim made in the context of an application for leave to remain as the spouse of Mr Hossain who had been granted indefinite leave in October 2018.
2. The Respondent refused the application because it is said that the Appellant did not have leave to remain after 21 November 2018 when a pending application was voided at her request. The Appellant denies this. The Respondent says that as the Appellant was an overstayer when she made the application which led to the decision under appeal (on 4 January 2019), paragraph EX.1 of Appendix FM ("paragraph EX.1") to the Immigration Rules ("the Rules") applies. The Respondent refused the application on the basis that there are no insurmountable obstacles to family life continuing in Bangladesh. The Respondent accepts that the requirements of the Rules other than in relation to immigration status are met.
3. For reasons which I will come to later in this decision, the Judge accepted the Respondent's case that the Appellant had overstayed. She did so notwithstanding an observation at [23] of the Decision that it was "not entirely clear to [her] what happened on the 21 November 2018". Having found that the Appellant was an overstayer, she went on to consider paragraph EX.1 but found that there were no insurmountable obstacles to family life continuing in Bangladesh. She also considered whether it could be said that the Appellant was bound to be granted entry clearance if she were to return to Bangladesh to make her application (such that it might be disproportionate to require her to return to make that application). She concluded that this was not certain and accordingly that the appeal did not fall to be allowed on this alternative basis.
4. The Appellant appeals for a number of reasons as follows:
(1) The Decision is unclear because the reasoning lacks details.
(2) The Judge has failed to make a finding on the central issue regarding the
voiding of an application in November 2018, as to which the Respondent has failed to discharge her burden of proof.
(3) The Judge erred in her conclusion that the Appellant did not have section 3C leave when she made her application in January 2019.
(4) Even if the Appellant did overstay, the Judge (and the Respondent) failed to
exercise discretion on the basis that the overstaying was not lengthy and not deliberate.
(5) The Decision is therefore irrational.
5. Permission to appeal was granted by Upper Tribunal Judge Martin (sitting as a First-tier Tribunal Judge) on 14 April 2020 in the following terms so far as relevant:
"... 2. It is arguable that the judge erred in finding the appellant's application was voided in November 2018 without evidence that this was so. The judge stated that she was unsure what had happened in November and this was crucial to the point whether the appellant had s.3C leave."
6. By a Note and Directions sent on 12 May 2020, having reviewed the file, Upper Tribunal Judge Hanson reached the provisional view that it would be appropriate to determine without a hearing (pursuant to Rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 - "the Procedure Rules") the following questions:
(a) whether the making of the First-tier Tribunal's decision involved the making of an error of law and, if so
(b) whether that decision should be set aside.
Directions were given for the parties to make submissions in writing on the appropriateness of that course and further submissions in relation to the error of law. The reasons for the Note and Directions was the "present need to take precautions against the spread of Covid-19, and the overriding objective expressed in the Procedure Rules".
7. Neither party has filed submissions either as to the substance of the appeal or the forum for determining the error of law issue. However, for reasons which follow, I consider that I can determine the error of law issue on the papers based on the Decision itself, the grounds as pleaded and the documents before me (which documents were also before Judge Obhi).
8. At this stage, the issue for me is whether the Decision contains an error of law. If I conclude it does, I need to consider whether I should set aside the Decision based on that error. If I decide to do so, I would either re-make the decision or remit the appeal to the First-tier Tribunal to do so.
DISCUSSION AND CONCLUSIONS
9. The main focus of the grounds and indeed the appeal as a whole is the events prior to the making of the application which led to the decision under appeal. It is therefore appropriate to set those out in a little more detail.
10. The Appellant's husband, Mr Hossain, came to the UK initially as a student in October 2008. He was later granted leave to remain as a Tier 1 Post-Study Migrant and then, in February 2012, as a Tier 2 Migrant. That latter leave was granted until 23 January 2015. The Appellant entered the UK as a Tier 2 dependent of Mr Hossain in 2012.
11. On 23 January 2015, Mr Hossain made an application for further leave to remain as a Tier 2 Migrant with the Appellant as his dependent. That application was refused on 9 December 2015 and a decision was made to remove Mr Hossain and the Appellant on the basis that Mr Hossain had cheated in an English language test and had submitted a certificate with his 2012 application which had been obtained using a proxy test taker (in other words, this was a so-called "ETS case"). Mr Hossain and the Appellant were given a right of appeal against the 9 December 2015 decision. The 9 December 2015 decision appears at [AB/163-168].
12. The appeals of Mr Hossain and the Appellant were allowed by First-tier Tribunal Judge Mr R G Walters in a decision promulgated on 17 July 2017 ([AB/158-162]). The Judge accepted that the ETS certificate had not been obtained by deception. The Respondent did not appeal that decision.
13. The effect of that decision is that the Respondent's decision under appeal needed to be revisited. Whilst not definitively reaching a conclusion as I do not have the Respondent's arguments in this regard, it seems to me that the position under Section 3C Immigration Act 1971 ("Section 3C") is that the application which led to the successfully appealed decision is once again pending and that leave therefore continues under Section 3C until the application is redetermined. It appears from a letter dated 5 October 2017 ([AB/155]) that the Respondent recognised that the appeals had been allowed and proposed to implement the decision (presumably by the grant of leave). It is not clear what occurred subsequently and why some action was not taken in this regard (if it was not) by the time that Mr Hossain completed his ten years' lawful residence in the UK.
14. One finds some explanation from the Respondent during that period recorded in the Respondent's submissions at [15] of the Decision as follows:
"Ms Lambert invited me to dismiss the appeal. Relying on the refusal letter she submitted that the decisions in the case of the husband were relevant, in that he had applied for leave to remain and it had been refused but on appeal the respondent had to look at the decision again. The respondent had considered the point and issued a further decision stating that the certificate he had provided was not genuine. Although the respondent had not appealed against the decision of the Immigration Judge the respondent did not accept it and considered that there had been a material error of law as this was not a genuine vacancy. He then did not pursue the application and submitted one on the grounds of long residency which was granted. The appellant could not therefore rely on Section 3C as the decision which she had appealed was based on a situation which no longer prevailed. The respondent had written to her on that basis and told her that she no longer had extant leave and she would have to leave the UK. Had his earlier application continued she would have had leave under Section 3C of the Immigration Act. However, she could not apply as a dependent on someone who has a settled status, i.e. she could not say that she was dependent on someone who did not have leave to remain. Her application was frustrated because of events relating to his application."
15. Whilst I have no reason to doubt what is there recorded as representing the Respondent's understanding of what occurred, the unfortunate fact is that there is no evidence about what happened in the period between October 2017 and October 2018 (and January 2019) and the Respondent's decision letter under appeal is silent about the chronology of the case at that time. None of the correspondence at that time between the Respondent and Mr Hossain/the Appellant is submitted by either party.
16. It is no doubt as a result of the evidential void that the Judge was unclear as to the facts. The Judge dealt with those facts in her findings at [17] onwards of the Decision. Having recorded the parties' competing submissions at [17] of the Decision, she went on to find as follows:
"18. I am satisfied that I cannot go behind a decision which has not been appealed or set aside. I accordingly accept that the appeal of the appellant's husband on which she was a dependent was allowed.
19. However, if the husband's permission to remain lapsed, as the permission of the wife, the appellant was dependent on his application, it follows that her leave also expired. The only issue is whether, during the period between the husband's Tier 2 leave coming to an end and him being granted indefinite leave to remain, the appellant had extant leave to remain in the UK under Section 3C of the Immigration Act 1971."
17. The Judge then set out Section 3C and continued as follows:
"21. The appellant was given leave to enter the UK as the spouse of a Tier 2 Migrant, and she did so on the 22 October 2012. She sought to vary that leave in August 2015 but her application was refused on the 9 December 2015 and was the subject of an appeal to the Tribunal. This appeal was allowed by Judge Walters. The decision is produced in the appellant's bundle. The appellant was a dependent on that appeal. The respondent had refused the appeal as she was not satisfied that the TOEIC certificate from ETS (confirming that the appellant's husband had passed the relevant English language tests) was reliable. The respondent considered that the appellant had used a proxy speaker to take the test. The respondent was not represented at the hearing before Judge Walters, who heard from the appellant who was represented at the hearing and accepted his evidence that he had not used a proxy speaker. The appeal was allowed on that point only, but there was a second issue which was not determined and that related to whether Certificate of Vacancy produced by the appellant related to a genuine vacancy, that was effectively left for the respondent to determine.
22. I accept that up to the date of that decision, namely the 17 June 2017, and until a decision was made by the respondent on the Tier 2 application in respect of the certificate of vacancy was made, the leave under Section 3C continued for both the primary appellant (the appellant's husband) and the appellant, who was his dependent on that appeal. The two ran together. On the 5 October 2017 the decision had yet to be made, so the leave remained extant. This is clear from the letter dated the 5 October 2017, at page C9 of the respondent's bundle.
23. The respondent submits that an event on the 21 November 2018 brought her leave to an end. The respondent describes it as the appeal having been 'voided' - which cannot be right as the appeal had been determined. This is probably a reference to the appellant's husband deciding not to pursue his application under Tier 2. Although it is not entirely clear to me what happened on the 21 November 2018, the fact is that the appellant's husband upon whom the appellant was dependent on his Tier 2 application had not pursued his application for further leave to remain.
24. Mr West invites me to find that the burden of proving that the application had been voided rests with the respondent as she is the one who asserts it. I am satisfied on the evidence before me that some action was taken by the appellant's husband, it is likely to have been his decision not to pursue the application under Tier 1 on or around the 21 November 2018 which resulted in the appellant's leave lapsing alongside that application. The appellant did not have a freestanding application, it was always as a dependent on that of her husband, so once his leave, on the basis upon which it was applied for ended, so too did hers and the lave under Section 3C lapsed accordingly.
25. Even if the date of the 21 November 2018 is wrong, at some point between the application of the appellant for leave to remain as the dependent of a person with settled status being made and her extant leave as the dependent of a Tier 2 dependent ending, there must have been a gap. In other words if her husband did not pursue an application upon which she was a dependent, then she could not be a dependent."
[my emphasis]
18. If the position is as the Respondent appears to suggest and Mr Hossain did indeed abandon his earlier application on which the Appellant was dependent in favour of an application which did not concern her, then the Respondent's position and the Judge's analysis may well hold good. However, the difficulty as things currently stand, is there is an evidential vacuum on both sides. I agree with the submission made to Judge Obhi concerning the burden of proving what is said about Mr Hossain's application and status at the relevant times. That is clearly on the Respondent. It is however equally notable that Mr Hossain's statement is silent on the subject of what occurred at this important time and none of the correspondence other than the 5 October 2017 letter is included. Both parties were aware of the central issue and owe a duty of candour to provide all relevant documentation.
19. Nonetheless, for present purposes, I am satisfied that there is an error of law in the Decision based on the Judge's reasoning. The erroneous approach begins at [19] of the Decision where the Judge correctly identifies that "if the husband's permission to remain lapsed" then so would that of the Appellant. However, that begs the question whether his leave had at any time lapsed. The Judge then accepts without any evidence and without Mr Hossain being asked about this, that he had "decided not to pursue" the outstanding Tier 2 application and that, in consequence of his actions, the application on which the Appellant's leave depended had lapsed. None of the facts submitted by Ms Lambert appear to have any underpinning in the evidence I have seen and nor does the Judge refer to any. As such, it is difficult to see how the Judge could reach the conclusion she did that the Respondent had satisfied her that the Appellant's leave had either lapsed or the application had been somehow voided. The findings made are speculative and without evidential foundation (as the position currently stands).
20. For those reasons, it is appropriate to set aside the Decision. The questions of the Appellant's and Mr Hossain's leave, whether that had indeed lapsed at any time, and whether the Appellant was in fact an overstayer are central to her ability to succeed in this appeal. The decision therefore needs to be re-made. The findings are however quite narrow, and it is appropriate to retain the appeal in this Tribunal for that purpose.
21. Given what I say above about the lack of evidence on both sides concerning the events between the allowing of the appeal in 2017 and the Appellant's application in January 2019, I have given directions below for further evidence to be provided as to those events prior to the hearing to re-make the decision. Since it may be the case that further oral evidence is required from the Appellant and/or Mr Hossain, I have directed that the hearing proceed on a face to face basis. If the parties are content however for evidence to be given remotely (provided an interpreter is not required) or if oral evidence is not required, the parties may request a remote hearing.
DECISION
I am satisfied that the decision of First-tier Tribunal Judge Obhi promulgated on 29 October 2019 discloses an error of law. I set aside that decision. I make the following directions for a resumed hearing:
DIRECTIONS
4. The parties are at liberty to apply to amend these directions, giving reasons, if they face significant practical difficulties in complying.
Signed: L K Smith Dated: 25 August 2020
Upper Tribunal Judge Smith
APPENDIX: ADJOURNMENT DECISION
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10286/2019
THE IMMIGRATION ACTS
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Heard at Field House, London |
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On Wednesday 25 November 2020 |
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Before
UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE THOMAS
Between
MRS MAHMUDA RAHMAN
Appellant
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Mr I Khan, Counsel, instructed by Reza Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer
ADJOURNMENT DECISION AND DIRECTIONS
1. The Appellant appealed against the decision of First-tier Tribunal Judge Obhi promulgated on 29 October 2019 dismissing the Appellant's appeal on human rights grounds ("the Decision"). By a decision dated 25 August 2020, made under Rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 on the papers and without a hearing, Judge Smith found an error of law in the Decision and gave directions for a resumed hearing before this Tribunal and for the filing of further evidence. Unfortunately, Ms Cunha had not received the error of law decision and was under the misapprehension that the hearing before us was at error of law stage. For that reason and for ease of reference, we have appended the error of law decision to this decision.
2. Ms Cunha indicated in response to a question from us, that she did not seek to reopen the error of law decision on the basis that it had been made on the papers (in light of the recent judgment in JCWI v The President of the Upper Tribunal (IAC) [2020] EWHC 3103 (Admin)).
3. In response to Judge Smith's earlier directions, the Appellant has filed an additional bundle of evidence (on 30 October 2020). Again, unfortunately, Ms Cunha had not received that. Nor had any further evidence been filed by the Respondent although Ms Cunha did attempt to overcome that difficulty by the filing of a chronology.
4. In any event, as we indicated at the hearing, there remains scant if any evidence of what occurred at the times which are material to the issue in this case, namely whether the Appellant has been (and remains) an overstayer.
5. Since the Decision and the grounds of appeal, the Appellant and her husband have had a child. The Appellant's husband is now a British citizen and the child is also a British citizen. Ms Cunha indicated that, in light of that development, the Respondent would like to have the opportunity to reconsider the decision under appeal and to consider whether the Appellant ought to be granted leave to remain.
6. Various options were discussed to that end. As both representatives agreed, it would not be appropriate for the Respondent to withdraw her decision under appeal and for the Appellant to withdraw her appeal. The Respondent's decision is made on the premise that the Appellant was an overstayer when she made the application leading to the decision under appeal and would remain an overstayer in that event which may have an impact on any reconsideration.
7. Ms Cunha accepted that the Tribunal could consider for itself the impact of the birth of the child following the Tribunal's decision in Birch (Precariousness and mistake: new matters: Jamaica) [2020] UKUT 86 (IAC). However, she submitted that the Tribunal may be assisted by the Respondent's view and in any event, the Respondent might be minded to grant leave to remain in which case time would be wasted by proceeding with the hearing before us. She suggested therefore that the appeal hearing be adjourned in order to allow reconsideration to take place. Mr Khan agreed with that course.
8. We too considered it a sensible option and in the interests of justice, not least because it would then allow the parties to file the evidence (if necessary) which was sought by the earlier directions. We have therefore provided again for the filing of further evidence in the event that the Respondent does not grant leave to remain following reconsideration. The directions made in that regard are in order to ascertain what occurred between the making of the Appellant's husband's application based on long residence on 26 October 2018 and the refusal of the Appellant's application on 4 June 2019.
9. If, as Mr Khan suggested may be the position, the Appellant remained a dependent on her husband's application or was entitled to a decision in her own right on the earlier application which was before the Respondent for reconsideration, then it may be that she did not overstay at all.
10. On the other hand, if the effect of the making of the Appellant's husband's application on 26 October 2018 was to vary the Tier 2 application which was pending reconsideration at that time (and on which the Appellant was definitely a dependent) but without the Appellant being a dependent on that later application, the effect of the application varying the earlier application may well be to void the earlier application with a potential impact on the Appellant's status. We directed Mr Khan's attention to a letter at [177] of the Respondent's bundle from the Home Office Charging Team dated 19 December 2018 refunding an application fee of £601 in connection with application number PP5504001668/001. That may suggest that the Respondent had treated as withdrawn the pending Tier 2 application.
11. We make clear however that we have not reached any firm view as to which of the above (or indeed any other) scenarios apply, not least because, as we say, we do not have the evidence on which we could determine those facts.
DIRECTION
1. By Monday 1 February 2021, the Respondent is to reconsider the Appellant's case and communicate any further decision to her (filing a copy of any such decision with the Tribunal).
2. In the event that the Respondent does not provide a further decision by that date or, by her reconsidered decision, does not grant the Appellant leave to remain, the parties shall, by 4pm on Monday 15 February 2021, file the following evidence with the Tribunal and serve it on the other party:
(a) From the Respondent: a full copy of the CID records in relation to the Appellant and the Appellant's husband, Mr Razzak Hossain;
(b) From the Appellant and the Respondent: a copy of the application made by the Appellant's husband on 26 October 2018 with any covering letter;
(c) From the Appellant and the Respondent: all and any correspondence passing between the Home Office, and the Appellant, the Appellant's husband and/or the solicitors for the Appellant and the Appellant's husband in the period 26 October 2018 to 4 June 2019.
3. The appeal will be listed for a resumed hearing on the first available date after Monday 1 March 2021 before UTJ Smith.
4. The parties are at liberty to apply to vary these directions, giving reasons, if they face significant practical difficulties in complying.
5. Documents or submissions filed in response to these directions may be sent by, or attached to, an email to [email] using the Tribunal's reference number (found at the top of these directions) as the subject line. Attachments must not exceed 15 MB. This address is not generally available for the filing of documents.
6. Service on the Secretary of State may be to [email] and to the Appellant, in the absence of any contrary instruction, by use of any address apparent from the service of these directions.
Signed L K Smith Dated: 25 November 2020
Upper Tribunal Judge Smith
