(Immigration and Asylum Chamber) Appeal Number: IA/00188/2013
THE IMMIGRATION ACTS
Heard at Field House
On 14 August 2013
On 2 September 2013
UPPER TRIBUNAL JUDGE GRUBB
(ANONYMITY ORDER MADE)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Ms S Jegarajah instructed by A K Solicitors LLP
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. This appeal is subject to an anonymity direction under rule 14(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) prohibiting the disclosure or publication of any matter likely to lead directly or indirectly to the appellant’s children being identified. The appellant and any member of his family should only be referred to by the initials used in this determination.
2. The appellant who was born on 4 January 1978 is a citizen of Bangladesh. The appellant, his wife and daughter (“A”) entered the United Kingdom on 29 May 2006. “A” was one month short of her second birthday on that date having been born on 24 June 2004. The appellant’s wife was then six months pregnant. They were granted leave until 14 November 2006. Since that date, the appellant, his wife and “A” have overstayed. Since the appellant and his wife have been in the UK they have had two sons, “Y1” and “Y2” born respectively on 1 August 2006 and 22 January 2010. They are all citizens of Bangladesh.
3. On 17 September 2010, the appellant applied for leave to remain in the UK outside the Rules. On 29 March 2011 that application was refused without a right of appeal. Thereafter there were further dealings between the parties including a Judicial Review application. In the result, in a decision letter dated 7 December 2012 the Secretary of State refused the appellant’s application under the Immigration Rules and Article 8 of the ECHR. On 19 December 2012, the Secretary of State made a decision to remove the appellant by way of directions to Bangladesh under s.10 of the Immigration and Asylum Act 1999.
4. The appellant appealed to the First-tier Tribunal. In a determination promulgated on 7 March 2013, Judge McLachlan dismissed the appellant’s appeal. The Judge found that the appellant’s removal (together with his wife and three children) would not breach Article 8 of the ECHR. Following the initial refusal of permission to appeal to the Upper Tribunal by the First-tier Tribunal, on 2 May 2013 the Upper Tribunal (UTJ Latter) granted the appellant permission to appeal on the basis that the Judge may have erred in law:
“In her assessment of where the best interests of the children lay and how they weighed in the balance along with other relevant factors against the interest of immigration control as an aspect of one or more of the legitimate aims within Article 8(2).”
5. The appeal first came before me on 4 July 2013. In a decision dated 12 July 2013, I concluded that the First-tier Tribunal’s decision did involve the making of an error of law in that the Judge had not adequately dealt with the “best interests” of the appellant’s children (in particular “A”) in reaching her finding that the appellant’s removal would be proportionate. As a consequence, I set aside that decision and directed that the appeal should be relisted before me to remake the decision in respect of Article 8. The appeal was listed for a resumed hearing on 14 August 2013.
6. At the outset of the hearing, on the appellant’s application, and without objection from Mr Deller who represented the respondent, I admitted into evidence a number of documents not previously before the First-tier Tribunal under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Ms Jegarajah also sought permission to rely upon additional grounds namely that the appellant met the requirements of Appendix FM in particular, on the basis that two of his children (“A” and “Y1”) had resided in the UK for a continuous period of seven years so that EX.1 applied.
7. At his request, I granted Mr Deller a short adjournment in order to consider the new documents and the appellant’s application to amend the grounds upon which the appeal was to be decided. Following that short adjournment, Mr Deller informed me that he was conceding the appeal on the Secretary of State’s behalf in the light of that documentation and the fact that two of the appellant’s children had been continuously resident in the UK now for seven years. He invited me to allow the appellant’s appeal under Article 8 of the ECHR.
8. Mr Deller indicated that the consequence of the appellant’s appeal being allowed would be that the appellant would be granted discretionary leave. It is clear that the appellant’s wife and children’s claims were considered to be dependent upon the appellant (see letter dated 27 February 2013 from UKBA addressed to the appellant). Mr Deller indicated that it was, as a consequence, his belief that the appellant’s family would be granted discretionary leave in line with that of the appellant. That must follow, it seems to me, since the appellant’s claim to remain in the UK under Article 8 rests upon the impact upon his children, “A” and “Y1” that their best interests are to remain in the UK. In reality, if the appellant cannot be removed then none of his family can be removed without breaching Article 8.
9. The decision of the First-tier Tribunal to dismiss the appellant’s appeal involved the making of an error of law and is set aside.
10. I remake the decision allowing the appellant’s appeal under Article 8 of the ECHR.
Judge of the Upper Tribunal