(Immigration and Asylum Chamber) Appeal Number: HU/00079/2018
THE IMMIGRATION ACTS
Heard at Birmingham
Decision & Reasons Promulgated
On 2 nd August 2019
On 22 nd August 2019
DEPUTY UPPER TRIBUNAL JUDGE JUSS
mr Abdul Mukit
(ANONYMITY direction NOT MADE)
For the Appellant: Mr D. Mills
For the Respondent: Mr Rahman (Counsel)
DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Feeney, promulgated on 10 th January 2019, following a hearing at Taylor House on 27 th November 2018. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
2. The Appellant is a male, a citizen of Bangladesh, and was born on 28 th June 1977. He appealed against the decision of the Respondent dated 3 rd November 2017, refusing his application for leave to enter the UK on the basis of his family life with his partner, Miss Bibi, a British citizen, present and settled in the UK, who is his wife.
3. This claim has a protracted and unfortunate history. The facts, however, are not in dispute. The Appellant came to the UK on 8 th June 2006 as a work permit holder. He had leave until 8 th June 2007. He overstayed his leave. He was encountered in 2011 working illegally. He was given temporary admission by the Authorities but he absconded in March 2011. Thereafter, on 7 th November 2012, the Appellant applied for leave to remain on the basis of his marriage to Miss Bibi, whom he had married in an Islamic ceremony in Leicester on 17 th July 2012. On 19 th March 2013 the Respondent refused the application. On 9 th June 2013 the Appellant left the United Kingdom voluntarily to return back to Bangladesh, and Miss Bibi travelled with him.
4. Significantly, on 17 th June 2013 the Appellant and Miss Bibi lawfully married in accordance with Bangladeshi law, in Bangladesh and on 21 st August 2013 the Appellant then made an application to enter the UK for entry clearance. This application was perhaps a little too early, given that the Appellant had an immigration history that was not altogether an endearing one. It was refused by the Secretary of State on the basis of paragraph 320(11). The Appellant had contrived in a significant way to frustrate the intentions of the Immigration Rules. He had overstayed, he had breached conditions of his leave, and there were "other aggravating circumstances".
5. In coming to this conclusion, the Entry Clearance Officer had relied on two significant matters. First, that when the Appellant was encountered in January 2011, he had given his name as Abdul Malik and his date of birth as 16 th June 1980 and he had told the Immigration Officers that he had entered the United Kingdom illegally with the aid of an agent. Secondly, the Appellant did not comply with the reporting conditions imposed on him when he was granted temporary admission and that, in March 2011, he was recorded as an absconder.
6. When the Appellant appealed, his appeal was heard by Judge Malone and in a decision promulgated on 18 th November 2014, the appeal was allowed on the basis that the ECO had given no valid reasons for disbelieving the Appellant's claim that he and his wife had lived together as man and wife, that he was in a genuine husband and wife relationship, that the maintenance tests had been satisfied and that accommodation was not a problem.
7. The judge had also observed that he had found "Miss Bibi to be an honest and reliable witness. I had no reason to disbelieve what she told me regarding communication with the Appellant" (paragraph 44). In the appeal by the Secretary of State against that decision, Deputy Upper Tribunal Judge Monson had regard, in a decision dated 13 th April 2016, that the issue between the discrepancy relating to the Appellant's name between "Abdul Malik" and "Abdul Mukit" had not been properly resolved by the judge below.
8. As the judge observed, "he effectively confessed to having given the alternative name of Abdul Malik when encountered in January 2011. But he relied in mitigation on the fact that he had come clean about this in his application of November 2012". There had therefore been a knowing failure to make a material disclosure of fact (paragraph 32). This was that he was also known by friends by the name of "Abdul Malik".
9. In determining the issue, the judge observed that the Appellant had applied very shortly from Bangladesh, after his arrival there, and the public interest still required to be maintained in favour of firm immigration control, although it was regrettable that nearly two and a half years had elapsed since the refusal decision. The judge ended the determination with the observation that the Appellant should reapply "in what will now be more propitious circumstances, as the public interest in excluding him as a serious immigration offender is diminished, and arguably assuaged, by the lengthy period of exclusion which he has now served" (paragraph 35).
10. In his latest application for entry, as the husband of Miss Bibi, on the basis of an application made on 17 th August 2017, the refusal by the Entry Clearance Officer on 3 rd November 2017 was described as being "a vague decision" by the Appellant's representatives (see paragraph 9 of the grounds of application to the Upper Tribunal).
11. The matter came before Judge Feeney. She observed how Judge Monson had concluded that the First-tier Tribunal had erred in law in the assessment that the Appellant had met the suitability requirements (paragraph 5). Judge Feeney also observed that Judge Monson had pointed out that "it was a point in the Appellant's favour that there had been no appeal from the finding of the First-tier Tribunal Judge that he would be adequately maintained and accommodated in the UK ..." (paragraph 6). Indeed, Judge Feeney early set out in the determination how Judge Monson had
"Added that it was open too for the Appellant to reapply in what would be more propitious circumstances as the public interest in excluding him as a serious immigration offender was diminished and arguably assuaged by the lengthy period of exclusion which he had now served" (paragraph 7).
12. At the hearing before Judge Feeney, "there was no Respondent's bundle. Two refusal letters had been issued in this case. The initial refusal letter was a pro forma template and did not contain any analysis regarding the Respondent's case." (See paragraph 9(i)).
13. As against this, there was a proper bundle from the Appellant's side. The judge set out the provisions of paragraph 320(11) and noted that the Respondent's case was that there were various aggravating circumstances surrounding the Appellant's stay in the UK (paragraph 14). The Appellant's claim was also noted that he had attempted to abide by the Rules by returning to Bangladesh and making a proper application (paragraph 15).
14. The judge observed the principles in " Devaseelan as being applicable and that the findings of fact made by Judge Monson were significant" (paragraph 16). It was moreover noted that the conduct of the couple was consistent with there being a genuine relationship here (paragraph 23). Furthermore, the fact that five years had elapsed since the Appellant had returned to Bangladesh from the UK voluntarily was highlighted (paragraph 25).
15. Even so, there were aggravating circumstances in the fact that the Appellant had worked illegally, had been apprehended and subjected to reporting conditions which he did not answer, had absconded, and had arranged a passport for himself and ID to use in the UK (paragraph 27).
16. Against this background, the judge concluded that,
"I bear in mind the weight I attached to the public interest in terms of his exclusion had been somewhat reduced. However, even accounting for this, when looking at the totality of the evidence, in particular the application of 320(11), the fact that the relationship was formed at a time when the Appellant's immigration status was precarious and that it is reasonable for the Sponsor to relocate to Bangladesh, tips the decision in favour of the Respondent and find their decision is proportionate in this case" (paragraph 43).
Grounds of Application
17. In the grounds of application, it is said that, although the judge, at paragraphs 6 to 7 of the determination, did set out Upper Tribunal Judge Monson's conclusions, and at paragraph 16, it was said that she accepted that she could not depart from the findings from Judge Monson, nevertheless, "unfortunately, FtTJ failed to apply UTJ Monson's conclusions with regard to applicability of 320(11) in a further application" (paragraph 16).
18. It was also stated that
"The FtTJ failed to place proper weight to the Appellant's witness statement which was previously accepted by First-tier Tribunal Judge Taylor who allowed the appeal under 320(11) but it was set aside by Upper Tribunal Judge Monson because the Respondent was entitled to apply 320(11) ..." (paragraph 18).
19. On 17 th May 2019 permission to appeal was granted on the basis that "it is arguable that unfairness has arisen or can be seen to have arisen in relation to consideration of the totality of the factors set forward in the permission application in the context of the history of the case in relation to the findings made by the judge".
20. At the hearing of the appeal before me on 2 nd August 2019, Mr L. Rahman of Counsel appearing on behalf of the Appellant relied upon the grounds of application. He submitted that it was another two and a half years since Judge Monson gave the decision before anything was done and five years had elapsed by the time that the appeal arose before Judge Feeney, and six years for the appeal to come before this Tribunal. Yet, at the time of the appeal before Judge Monson, he had already made it clear that three years had elapsed and this had considerably diminished the public interest in favour of immigration control as against the human right of the Appellant to a family life with his British citizen wife in the United Kingdom.
21. For his part, Mr Mills submitted that the question was whether Judge Monson was making a binding observation or simply saying that it was open to a subsequent decision maker to take the view that the public interest in immigration control had considerably diminished. If it was the former, and the observation was one that had to be taken as conclusive of how the balance of considerations fell to be applied, then I should make a finding on an error of law and proceed to allow the appeal outright.
22. In reply, Mr Rahman submitted that the only reason why the appeal by the Secretary of State had been successful before Judge Monson was on the basis that the judge below had failed to properly determine the question of "suitability" because there had been a failure to disclose the alternative name used by the Appellant. Otherwise, the human right claim to family life based upon the relationship between the Appellant and a British citizen wife would prevail.
Error of Law
23. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law, such that it falls to be set aside (see Section 12(1) of TCEA 2007). My reasons are as follows.
24. First, this is a case where the judge, under the heading "my findings of fact", had made it clear that " Devaseelan applies in this case. Findings of fact were made by Judge Monson" (see paragraph 16). That being so, it is important to look at what Judge Monson did decide. He observed that after the Appellant had returned back to Bangladesh, accompanied by his wife with whom he married in a Bangladeshi religious ceremony thereafter in that country,
"The claimant had only been in Bangladesh some six months, since June 2013. His application for entry clearance as a spouse was made on 21 st August 2013. In the light of his adverse immigration history, he did not have a legitimate expectation of being granted entry clearance so soon after his voluntary departure. Having regard to paragraph 320(7B) of the Rules, the claimant needed to wait for at least one year before applying for entry clearance, and even then he could only expect to be admitted if he was treated as an ordinary overstayer with no aggravating circumstances (paragraph 33).".
25. Judge Monson had then gone on to say that "it is regrettable that nearly two and a half years had elapsed since the refusal decision, and so the effective period of the claimant's exclusion is now some three years." (Paragraph 34). He had then gone on to consider the appeal under the Rules and he concluded that it would fail under the Rules. He then considered Article 8 outside the Rules. He observed that "it is a point in the claimant's favour that there is no appeal from the finding of the First-tier Tribunal Judge that he is going to be adequately maintained and accommodated in the United Kingdom without recourse to public funds" (paragraph 35). The judge also referred to other matters that were in favour of the Appellant, such as his reasonable fluency in the English language.
26. He ended the determination by stating that, although it was the case that the interference with family and private life was proportionate at the time of the decision appealed against because he had only been in Bangladesh for some six months since June 2013, nevertheless,
"It is open to the claimant to reapply in what will now be more propitious circumstances, as the public interest in excluding him as a serious immigration offender is diminished, and arguably assuaged, by the lengthy period of exclusion which he has now served" (paragraph 35).
27. Second, despite this conclusion, the judge observes that the public interest in exclusion must be given a higher weight because the Appellant's immigration status was precarious at the time that the marriage was entered into and that it is reasonable for the Sponsor to relocate to Bangladesh (paragraph 43). This does not follow from what Judge Monson had decided. It also does not follow that some six years after the Appellant has returned back to Bangladesh, that his application to join his British citizen wife from Bangladesh to this country should be consistently rejected.
28. This is for two reasons. First, it had been long established that there is a public interest in requiring people to return back to their country of origin if they have breached the Immigration Rules. The case of PS (paragraph 320(11) discretion: care needed) India  UKUT 440, makes it clear that
"The decision maker must exercise great care in assessing the aggravating circumstances set to justify refusal and must have regard to the public interest in encouraging those unlawfully in the United Kingdom to leave and seek to regularise their status by an application for entry clearance".
29. This is exactly what the Appellant has done. Indeed, that case made it clear (at paragraph 14) that
"If the aggravating circumstances are not truly aggravating there is in this context a serious risk that those in the position of Mr S would simply continue to remain in the United Kingdom unlawfully and would not seek to regularise their stay as he has sought to do".
30. In this case the Appellant also had sought to regularise his stay. That being so, the fact that he had breached the Immigration Rules in the manner that he has done in this case cannot infinitely and ad infinitum be taken against him so as to frustrate his right to join his wife in this country.
31. This brings me to the second reason. I refer to the much neglected judgment of Blake J in MM  EWHC, which recognized how since 1985 when the European Court of Human Rights decided Abdul Aziz  EHRR 471, which concerned women who were unable to sponsor the admission of their husbands, "the rights of the citizen to enjoy a family life in his or her country of nationality has emerged as a significant theme in the intervening period in European and domestic law" (paragraph 28).
32. Blake J made it clear that
"British citizens are in a different position from foreign Sponsors generally. This is because they have an independent right to reside in their own country. This is not a right afforded by permission of the Secretary of State but it is a fundamental right of constitutional significance recognised by the common law before the legislation was codified in the Immigration Act 1971. This Act describes the right as the ability to reside without 'let or hindrance' ... An inability to continue to reside in the country of one's nationality because of the exclusion of the spouse of a genuine relationship is an interference with that right of residence" (at paragraph 100).
33. Blake J continued that,
"I consider that British nationality is of importance in the present context, because if the spouse cannot obtain admission under the Rules, and the citizen Sponsor wants to enjoy family life and matrimonial cohabitation following marriage he or she will have to leave the country of nationality in order to do so. Even if there are no insurmountable obstacles to a British citizen doing so, this is a serious interference with the right of residence (see Pitchford LJ in Quila at paragraph 72)" (see MM at paragraph 104).
Remaking the Decision
34. I have remade the decision on the basis of the findings of the original judge, the evidence before her, and the submissions that I have heard today. I am allowing this appeal for the reasons that I have set out above. This appeal is allowed.
35. The decision of the First-tier Tribunal amounted to an error of law. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed.
36. No anonymity direction is made.
37. This appeal is allowed.
Deputy Upper Tribunal Judge Juss 17 th August 2019
TO THE RESPONDENT
As I have allowed the appeal and because a fee has been paid or is payable, I have made a fee award of any fee which has been paid or may be payable.
Deputy Upper Tribunal Judge Juss 17 th August 2019