Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)

Singini (para 319C – switching to dependant category) Malawi [2011] UKUT 00248(IAC)

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 13 April 2011

25 May 2011

Before

MR JUSTICE McCLOSKEY
SENIOR IMMIGRATION JUDGE GILL

Between

Mr. MICHAEL CHIMPOPE SINGINI
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr K Thathall, Counsel, instructed by UK Immigration Law Chambers.
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer.

Where an application for entry clearance or leave to enter or remain in the United Kingdom is made before 3 March 2010 and has not been determined before that date, it will be decided in accordance with the Immigration Rules in force on 2 March 2010, rather than the Statement of Changes in Immigration Rules [HC 367] which came into operation on 3 March 2010. Paragraph 319C(i) of the Immigration Rules, which came into operation on the latter date, is a freestanding subparagraph, divorced from but following upon subparagraph (h) and is to be construed accordingly. It follows that where the dates set out above apply, a person who was last granted leave to remain as a student will not be able to switch from the student category to that of a dependant of a student unless he is applying for leave as the dependant of a person who has been granted, or is being granted, leave to remain as a Tier 5 (Temporary Worker) Migrant in the creative and sporting subcategory under paragraph 245ZQ(b)(ii).

DETERMINATION AND REASONS

1. The Appellant is of Malawian nationality and is aged forty-three years. This appeal has its origins in a decision of 2 April 2010 of the Secretary of State for the Home Department (“the Respondent”), whereby the Appellant’s application of 9 February 2010 to vary his leave to remain in the United Kingdom was refused under paragraph 319C of the Statement of Changes in the Immigration Rules HC 395 (as amended) (hereinafter “the Immigration Rules”) and on human rights grounds (Article 8 ECHR).

2. According to the Respondent’s letter of decision, dated 2 April 2010, the Appellant made a combined application for leave to remain in the United Kingdom as a “Points Based System Migrant” and for a biometric immigration document. He had previously been granted leave to enter the United Kingdom, on 6 January 2007, as a student, until 31 March 2010. His application for further leave to remain in the United Kingdom was made on 9 February 2010. On the face of the letter of decision, the sole issue to be confronted and determined was whether the Appellant could, as a matter of law, convert his status from that of student to dependant of a person possessing leave to remain in the United Kingdom as a Points Based System Migrant. The Respondent decided that such conversion was not permissible under paragraph 319C(h) of the Immigration Rules (the conversion issue) and refused the application accordingly. The First-tier Tribunal agreed with the reasoning of the Respondent on the conversion issue and also rejected the Appellant’s claim under Article 8 ECHR. The appeal was dismissed accordingly.

3. In the grant of permission to appeal, it was considered that there were two potentially arguable errors of law. The first concerns the conversion issue. The second relates to the rejection of the Article 8 ECHR claim. Upon the hearing of the appeal before us, argument was addressed to each of these issues by Mr. Thathall of counsel, on behalf of the Appellant and Mr. Tufan, the Respondent’s Presenting Officer.

4. The Appellant relies primarily upon paragraph 319C of the Immigration Rules. It is appropriate to reproduce this in full:
“To qualify for entry clearance or leave to remain as the Partner of a Relevant Points Based System Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements, entry clearance or leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements:
(a) The applicant must not fall for refusal under the general grounds for refusal, and if applying for leave to remain, must not be an illegal entrant.
(b) The applicant must be the spouse or civil partner, unmarried or same-sex partner of a person who:
(i) has valid leave to enter or remain as a Relevant Points Based System Migrant, or
(ii) is, at the same time, being granted entry clearance or leave to remain as a Relevant Points Based System Migrant.
(c) An applicant who is the unmarried or same-sex partner of a Relevant Points Based System Migrant must also meet the following requirements:
(i) any previous marriage or civil partnership or similar relationship by the applicant or the Relevant Points Based System Migrant with another person must have permanently broken down,
(ii) the applicant and the Relevant Points Based System Migrant must not be so closely related that they would be prohibited from marrying each other in the UK, and
(iii) the applicant and the Relevant Points Based System Migrant must have been living together in a relationship similar to marriage or civil partnership for a period of at least 2 years.
(d) The marriage or civil partnership, or relationship similar to marriage or civil partnership, must be subsisting at the time the application is made.
(e) The applicant and the Relevant Points Based System Migrant must intend to live with the other as their spouse or civil partner, unmarried or same-sex partner throughout the applicants stay in the UK.
(f) The applicant must not intend to stay in the UK beyond any period of leave granted to the Relevant Points Based System Migrant .
(g) Unless the Relevant Points Based System Migrant is a Tier 1 (Investor) Migrant, there must be a sufficient level of funds available to the applicant, as set out in Appendix E.
(h) An applicant who is applying for leave to remain, must have, or have last been granted, leave:
(i) as the Partner of a Relevant Points Based System Migrant,
(ii) as the spouse or civil partner, unmarried or same-sex partner of a person with leave under another category of these Rules who has since been granted, or is, at the same time, being granted leave to remain as a Relevant Points Based System Migrant, or
(iii) in any other category of these Rules, provided the Relevant Points Based System Migrant has, or is being granted, leave to remain as a Tier 5 (Temporary Worker) Migrant in the creative and sporting subcategory on the basis of having met the requirement at paragraph 245ZQ(b)(ii).
(i) If the Relevant Points Based System Migrant is a Tier 4 Migrant, the Tier 4 Migrant must be applying 4 for or have entry clearance or leave to remain for a course of study that is longer than six months.”
The final portion of paragraph 319C, set out above, was inserted by the “Statement of Changes in Immigration Rules” laid before Parliament on 10 February 2010 [HC367]. The Appellant’s primary contention is founded on this newly inserted paragraph.
5. According to the text of HC367, the changes embodied in the Statement were to come into operation in the following way:

“The changes in this Statement shall take effect on 3rd March 2010. However, if an applicant has made an application for entry clearance or leave to enter or remain before 3rd March 2010 and the application has not been decided before that date, it will be decided in accordance with the Rules in force on 2nd March 2010 and the conditions applicable to any leave granted will be those in force on 2nd March 2010”.

This is, in effect, a transitional provision. It is to be applied to the Appellant by reference to the following undisputed facts:

(a) The Appellant’s application for leave to remain was made on 9 February 2010.

(b) The application was decided by the Secretary of State on 2 April 2010.

We conclude that the application of the transitional provision in HC367 set out above to the factual matrix of the present case can yield but one possible answer: the Appellant’s application fell to be determined in accordance with the Immigration Rules in force on 2 March 2010. Its determination could not – and cannot – be influenced by the changes introduced in HC367. It is common ground that the Appellant’s application does not satisfy the Rules prevailing on 2 March 2010. This is fatal to his appeal.

6. Notwithstanding the above conclusion, it remains appropriate to deal with the main submission advanced on behalf of the Appellant, which relates to the conversion issue, as this may recur and in the event of a further appeal materialising. This relates to the construction of Paragraph 319C(i) of the Rules. In an argument which may fairly be described as both intricate and inventive, Mr. Thathall submitted, in substance, that this new provision should be treated as a fourth subparagraph of paragraph 319C(h) and construed accordingly. This submission, duly probed, gives rise to the following exercise :

(a) The conversion of the letter ‘i’ to a subparagraph (iv).

(b) The insertion of a semi-colon, followed by the word ‘or’, at the end of subparagraph (h)(iii).

(c) The exportation of the words “in any other category of these Rules”, at the commencement of subparagraph (h)(iii), to the beginning of the new provision.

(d) The substitution of the words “provided that” for “if” at the beginning of the new provision.

(e) The deletion of the second reference to “Tier 4 Migrant” in the new provision and the insertion of “who” immediately before the words “must be applying for … (etc)”.

In considering this submission, we bear in mind the observation of Lord Brown in Ahmed Mahad and Others v Entry Clearance Officers [2009] UKSC 16:

“[10] … the Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy.”

Lord Brown added that the exercise of interpretation involves ascertainment of the Secretary of State’s intention, which –

“… is to be discerned objectively from the language used, not divined by reference to supposed policy considerations”.

7. The exercise which the Tribunal was invited to perform in the construction of the new provision in paragraph 319C urged on behalf of the Appellant can fairly be equated with an elaborate and complex surgical operation. It entails elements of distortion, reformulation, addition, substitution and insertion. In short, a highly inventive imagination and much creative invention are required. We consider that as judges, rather than contortionists, it simply is not open us to construe the new provision in the manner urged. The steps which we were invited to take in aid of the Appellant’s suggested construction of the new provision are, in our view, impermissible and inappropriate. The fundamental objection to them is that they do not involve an exercise of construing the new provision. Rather, they require it to be radically rewritten. This, in our judgment, is the incurable infirmity in the Appellant’s argument. We are of the clear opinion that grammatically, syntactically, sensibly and logically the new provision is a freestanding addition to paragraph 319C to be inserted, treated and construed as subparagraph (i), divorced from but following upon subparagraph (h).

8. It follows that a person who was last granted leave to remain as a student will not be able to switch from the student category to that of a dependant of a student unless he is applying for leave as the dependant of a person who has been granted, or is being granted, leave to remain as a Tier 5 (Temporary Worker) Migrant in the creative and sporting subcategory under paragraph 245ZQ(b)(ii).

9. Accordingly, we have concluded that the Immigration Judge did not err in law in reaching his decision to dismiss the Appellant's appeal under the Immigration Rules.

10. Finally, we turn to consider the Appellant’s Article 8 ECHR claim. Immigration Judge Parker concluded that the Respondent’s decision would not be in breach of Article 8 ECHR, mainly because he found that, if the Appellant were to be returned to Malawi, there were no compassionate circumstances other than that he might be separated from his wife and child for a limited period whilst she completed her studies, scheduled for termination in January 2012, in the United Kingdom. The Immigration Judge therefore determined the Article 8 claim on the basis that the Appellant's child would remain in the United Kingdom with his wife. Mr. Tathall informed us that, at the date of the hearing before the Immigration Judge, the Appellant's child was in fact living in Malawi. It appears that the Appellant's wife left the child with the child's grandparents upon her return to Malawi in November 2009 for a period of approximately two months. We have taken careful note of the Appellant’s family circumstances and the various family movements between Malawi and the United Kingdom and vice versa since the Appellant and his wife first entered the United Kingdom some five years ago, with the benefit of a three and a half year student visa. If the Appellant leaves the United Kingdom at this stage he will be reunited with his daughter and other family members in Malawi, with an ensuing separation from his wife for a maximum period of approximately eight months [or less, taking into account conventional student vacation periods]. To the extent that this will give rise to any interference with his right to respect for the family life which he has enjoyed with his wife in the United Kingdom during most of the past five years this, in our view, will be modest and is demonstrably proportionate to the legitimate aim in play, namely the maintenance of firm but fair immigration control.

11. Accordingly, any misapprehension of the facts on the part of the Immigration Judge concerning the country in which the Appellant’s child was living at the date of the hearing was not material to his decision, which was nevertheless still open to him on the evidence. The main rationale underpinning the immediately preceding paragraph is the disclosure to this Tribunal that the information relating to the child’s whereabouts since November 2009 did not feature in the evidence available to the judge. We are of the opinion that this reinforces the judge’s decision in this respect.

Decision

12. The decision of the Immigration Judge did not involve the making of an error on a point of law such that it falls to be set aside.

Signed

Mr. Justice McCloskey
(sitting as a Judge of the Upper Tribunal)

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