Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02518/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 December 2016
On 09 January 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

Ali Hamid Amin
(ANONYMITY DIRECTION not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms A Radford, Counsel instructed by Turpin Miller, Solicitors
For the Respondent: Mr S Staunton, Senior Home Office Presenting Officer
DECISION AND REASONS
1. I make no order restricting publicity about this case. Although its origins can be traced to an asylum claim the issues concern the proper consideration of article 8 of the European Convention on Human Rights.
2. This is an appeal by a citizen of Iraq against the decision of the First-tier Tribunal dismissing his appeal against the decision of the Secretary of State refusing him leave to remain.
3. The only point of contention before me is whether the First-tier Tribunal was right to dismiss the appeal under Article 8 of the European Convention on Human Rights. I am entirely satisfied that the First-tier Tribunal Judge misdirected himself. The Judge dealt with the case on the basis that the appellant did not have leave to be in the United Kingdom, but he did. The appellant was in the United Kingdom with discretionary leave when he made his application. It is trite law that that leave was extended by Section 3C of the 1971 Act and so although it took the Secretary of State something like three years to actually make a decision the Appellant had "3C leave" which extended his discretionary leave throughout that period.
4. It follows therefore that the whole approach to the case under Article 8 of the European Convention on Human Rights is just wrong and it has to be set aside if a proper consideration might have made a difference and I am satisfied that it might have made a difference in the sense that it is possible that a properly directed Tribunal might allow the appeal with all the information before it. That part of the case has proved entirely straightforward.
5. I have had more difficulty with an argument put forward by Ms Radford about the operation of the appropriate policies determining the likelihood of his discretionary leave being continued. I have been given something called Section 10 Transitional Arrangements but I have not been given a copy of the discretionary leave policy in force at the relevant time which was before 9 July 2012 when, I assume, something of significance happened. It is clear that the discretionary leave given in this case was given under the policy in force before 9 July 2012 and it is regrettable that a copy of that policy was not put before me although it might be that the terms of that policy are now for all practical purposes untraceable because I know that Ms Radford has tried to find it.
6. There is a convoluting argument before me suggesting, as I understand it, that a person who has in fact accrued six years' discretionary leave should be treated as a person eligible for further leave but I find that is based on a misreading of the policy. I understand Ms Radford's submission that the part of the policy referring to a person being given a further three years' discretionary leave should apply to a person who has already got three years, bringing the total up to six years, but I do not accept that the mere fact that a person has accumulated a full six years' discretionary leave puts him in the position that Ms Radford says he is in, namely that of a person prima facie eligible to remain. I say that because of the wording of the policy beginning at 10.1 which states:
"Those granted leave under the DL policy in force before 9 July 2012 will normally continue to be dealt with under that policy through to settlement if they continue to qualify for further leave on the same basis as their original DL was granted (normally they would be then eligible to apply for settlement after accruing six years' continuous DL ?)."
7. The critical words to my mind are "if they continue to qualify for further leave on the same basis as their original DL was granted". This appellant clearly does not. His original discretionary leave was granted because he was a minor and he is not a minor anymore. It follows that I cannot agree that he is to be dealt with as if he were a person entitled to remain but he should not have been dealt with as a person in the United Kingdom without permission because he had permission and that clearly skewed the approach to Article 8.
8. I listened to outlined submissions from Ms Radford to help me decide if it was right for me to go ahead and remake the decision that I set aside. I decided it would not be right. This is a case where I find that the appellant should be entitled to the right to preserve all avenues of appeal. It is not his fault he did not have proper consideration of his case at the last hearing. It follows therefore that although I set aside the decision of the First-tier Tribunal I cannot make any progress beyond directing that the case be heard again in the First-tier which will give directions for the proper progress of the case.

Decision
9. The First-tier Tribunal erred in law. I set aside its decision and order that the appeal be determined again in the First-tier Tribunal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 6 January 2017