United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005373
	First-tier Tribunal No: HU/61414/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 11 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE HOFFMAN

DEPUTY UPPER TRIBUNAL JUDGE PHILLIPS

 

Between

 

MC

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: No appearance

For the Respondent: Ms Ahmed, Senior Home Office Presenting Officer

 

Heard at Field House on 3 February 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant, his ex-wife and their son are granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant, his ex-wife or their son. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1.              The appellant appeals with permission against the decision of First-tier Tribunal Judge Hallen promulgated on 9 October 2024 dismissing his appeal against the respondent's decision dated 6 September 2023 refusing his application for leave to remain as the parent of a British citizen child.

Anonymity

2.              While we take into account the strong public interest in open justice, we have made an anonymity order in this appeal in accordance with s.97(2) of the Children Act 1989 on the basis that the appellant's son is, according to the appellant, subject to proceedings in the Family Court. In the circumstances, we are satisfied that the interests of the appellant's child outweighs the principle of open justice.

Background

3.              The appellant is a citizen of Bangladesh born in 1984. He came to the UK as a visitor on 5 September 2008 and married K, a British citizen on 1 November 2009. On 15 June 2010, he voluntarily returned to Bangladesh. He and K have a son who was born in 2010.

4.              The appellant returned to the UK on 31 July 2011 with leave to enter as a spouse valid until 11 October 2013. On 10 October 2013, the appellant applied to extend his visa. That application was granted on 2 June 2015 until 2 December 2017. However, in the meantime, the appellant and K had divorced on 9 April 2014. On 16 November 2017, the appellant applied for leave to remain on family and private life grounds and this was granted on 12 April 2018 until 12 October 2020. On 12 October 2020, the appellant applied for leave to remain as the father of a British child. That application was refused on 6 September 2023 on the basis that the respondent was not satisfied that the appellant had provided sufficient evidence to prove that he had an ongoing genuine and subsisting relationship with his son.

The appeal to the First-tier Tribunal

5.              The appellant's appeal against the respondent's decision was heard by First-tier Tribunal Judge Hallen ("the judge") on 7 October 2024. As a preliminary matter, the judge dealt with an application for an adjournment made by the appellant. The adjournment was sought on the basis that the appellant claimed to have initiated child contact proceedings in the Family Court in May 2024 and a hearing was due to take place on 13 January 2025. The appellant therefore wanted his immigration appeal stayed pending the outcome of the Family Court hearing. However, at [5], the judge refused the application for an adjournment on the basis that (a) the appellant could give evidence to the First-tier Tribunal on the Family Court proceedings and his relationship with his son and (b) the appellant had had sufficient time since 2020 to organise contact with his son (his evidence being that he had not seen his son since 2019).

6.              The judge then went on to hear the appellant's appeal and, in a decision promulgated on 9 October 2023, it was dismissed on human rights grounds. In reaching his decision, the judge was not satisfied to the civil standard that the appellant had brought Family Court proceedings to regain contact with his son as no evidence of the application had been produced: see [14]. The judge then went on to find at [16] that the appellant did not play an active role in his son's life and that the relationship was not genuine and subsisting.

The appeal to the Upper Tribunal

7.              The appellant was granted permission to appeal the decision of the judge by First-tier Tribunal Boyes on 21 November 2024.

8.              The appellant raises two grounds. The first argues that the judge was wrong to refuse the adjournment application and had made an irrational and perverse finding on whether or not there were ongoing Family Court proceedings, the result of which was that the appellant was denied a fair hearing. The appellant submits that there was evidence of the Family Court proceedings before the judge in the form of email communications between his solicitors and the Court which had been provided in his additional bundle of evidence. The appellant also argues that the judge failed to properly follow the case of MH (pending family proceedings - discretionary leave) Morocco [2010] UKUT 439, in particular headnotes 1 and 2 which indicate that a decision to refuse to adjourn proceedings before the Tribunal pending the outcome of an application for a contact order may breach Articles 6 and/or 8 ECHR.

9.              The second ground of appeal argues that the judge's assessment of the Article 8 proportionality balance at [16] is flawed as a result of the judge's failure to have regard to the ongoing proceedings in the Family Court and by failing to give appropriate weight to the appellant's period of lawful residence in the UK.

The hearing

10.          Neither the appellant nor his representatives attended the error of law hearing. Ms Ahmed, representing the respondent, said that she had spoken to the appellant's representatives and as the respondent was conceding that a material error of law was evident they perhaps did not believe their attendance was necessary. No application for an adjournment was made.

11.          We did, however, receive a rule 24 response filed by Ms Ahmed. In that response, the respondent accepts that in the light of the findings in MH, the interests of fairness were to adjourn the hearing pending the outcome of the Family Court proceedings and that the judge gave erroneous reasons for refusing to grant the appellant's adjournment application. The position of the respondent, therefore, is that the appeal should be remitted to the First-tier Tribunal for a hearing de novo following the outcome of the Family Court proceedings.

Findings - Error of Law

12.          We are satisfied that the judge did overlook evidence of email correspondence from August 2024 between the appellant's solicitors and the Family Court seeking an update on his application as well permission to share court documents with the First-tier Tribunal: see pages 2 to 7 of his additional bundle of evidence. This, we find, infected both the judge's decision not to grant the adjournment request and his assessment of the weight to be attached to the appellant's side of the scale when carrying out the Article 8 balancing exercise.

13.          We are also satisfied that the judge's decision to refuse to grant the adjournment pending the outcome of the appellant's application for a contact order, for which a hearing was due to take place in January 2025, was unfair for the reasons given in the case of MH.

14.          We therefore find that the judge made material errors of law and we therefore set aside the decision of the First-tier Tribunal.

Remaking

15.          We agree with the respondent that none of the judge's findings can be preserved. Given that the appellant was deprived of a fair hearing before the First-tier Tribunal, applying paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, we are satisfied that remittal for a de novo hearing is the appropriate course of action.

Notice of Decision

The decision of the First-tier Tribunal involved the making of material errors on a point of law.

The decision of the First-tier Tribunal is set aside with no findings preserved.

The remaking of the decision in the appeal is remitted to the First-tier Tribunal at Hatton Cross, to be remade afresh and heard by any judge other than Judge Hallen.

 

 

M R Hoffman

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

4 ^th February 2025