Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03864/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28th November 2016
On 18th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

R. S. (aka M. S.)
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms N Seehra (Counsel)
For the Respondent: Mr T Whitwell (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. The appellant's appeal against a decision to remove him was dismissed by First-tier Tribunal Judge Moore ("the judge") in a decision promulgated on 15th August 2016. The judge found the appellant to be an unreliable witness and concluded that his removal would not breach his Article 8 rights, would not give rise to a real risk of persecution on return to India and that the adverse decision was not unlawful in any respect.
2. In an application for permission to appeal, two grounds were advanced. First, that in the Article 8 assessment, the judge failed to properly consider the issue of the Secretary of State's delay in making a decision in the appellant's case, so that the principles set out in EB (Kosovo) [2008] UKHL 41 were not properly applied. The appellant entered the United Kingdom in September 2001 and was given temporary admission. He failed to return for interview. He sought to remain in the United Kingdom in October 2010 on the basis of representations in which he relied upon Article 8 of the Human Rights Convention and requested consideration under the legacy exercise. A decision was made by the Secretary of State only on 23rd February 2015, notwithstanding persistent attempts by the appellant's solicitors to secure a response. In the second ground, it was contended that the judge failed to properly engage with whether the Secretary of State had made a lawful assessment of the case under paragraph 353B of the Immigration Rules ("the rules"). The letter giving reasons for the adverse decision showed that her representative had wrongly considered the relevant date of contact between the appellant and the authorities of the United Kingdom to be February 2013 when it was in fact October 2010. The judge had failed to consider that this assessment had been made on an incorrect basis.
3. Permission to appeal was refused by a First-tier Tribunal Judge but granted in the Upper Tribunal on 28th October 2016. The judge granting permission found that the judge misquoted part of an earlier decision in the Upper Tribunal and that, although he considered relevant factors under section 117B of the 2002 Act, and referred to what he described as a "dereliction on the part of the respondent's duty" in relation to delay, the decision did not show that he applied the principles enunciated in EB (Kosovo) in assessing whether there were compelling circumstances supporting a claim outside the Immigration Rules.
4. In a rule 24 response, the Secretary of State opposed the appeal, on the basis that the judge properly set out the relevant chronology, considered the claim in its entirety and, in particular, considered delay in the light of the Upper Tribunal decision in Dube [2015] UKUT 00090. Overall, the judge directed himself appropriately and there was no error (or no material error).
5. In a reply to that response, it was contended that the statutory provision that little weight should be given to private life ties whilst a person was in the United Kingdom unlawfully was not determinative of the public interest question.
6. I was handed several authorities, including Rhuppiah [2016] EWCA Civ 803 and AZ (Bangladesh) [2009] EWCA Civ 158.
Submissions on Error of Law
7. Ms Seehra said that the judge failed to properly deal with the issue of delay and apply the principles set out in EB (Kosovo). The assessment appeared confused. At paragraph 24, the judge dealt with delay and briefly with section 117(B)(4) but then paragraph 25 considered the rules and paragraph 27 appeared to return to proportionality. He made findings regarding the substantial delay but nowhere in the decision did he recognise the key principle that the weight to be given to the public interest could be reduced by delay. Moreover, the appellant's ties to the United Kingdom might be, and were, strengthened during periods of delay. The reasoning in EB (Kosovo) had not been applied in the balancing exercise. The judge appeared to focus on the fact that the appellant absconded for some nine years but, in striking the balance between the competing interests, failed to properly take into account EB (Kosovo).
8. The second ground was also maintained, although the grant of permission to appeal by the Upper Tribunal Judge made no mention of it. Ms Seehra said that permission to appeal had not been refused. In the decision letter, the Secretary of State made some mistakes regarding the period of delay and the point of contact between the appellant and the authorities of this country. It was not open to the judge himself to make a decision and it fell to the Secretary of State to make a proper assessment. The judge did not deal with this matter adequately.
9. Mr Whitwell relied on the rule 24 response. The appellant's case appeared to amount to a disagreement with the outcome. The judge dealt fully with delay at paragraph 24 of the decision, properly took into account statutory considerations and then made an assessment which was open to him. The issue of delay was clearly factored into the judge's reasoning. There was no need for any express mention of EB (Kosovo) or a statement to the effect that the public interest might be reduced by delay. It was clear that the judge had the relevant authority of Dube clearly in mind and he was well aware of the precariousness of the appellant's status in the United Kingdom and the period of delay which the appellant himself was responsible for, during the years in which he avoided contact with the authorities. There was no error of law and even if the absence of any express mention of EB (Kosovo) did amount to an error, it was plainly not material. So far as the second ground was concerned, permission was not granted by the Upper Tribunal Judge.
10. In a brief discussion on the appropriate venue, should an error of law be found, the representatives agreed that the Upper Tribunal should keep the case.
Conclusion on Error of Law
11. Dealing with the first ground, I find that no error of law has been shown. The decision is thorough and carefully reasoned and I do not accept the submission that the decision shows that the judge was confused or that he dealt with the relevant issues in an uncertain way. Far from it. He first, at paragraphs 23 to 28, carefully assessed the evidence relied upon by the appellant regarding events in India before he came to this country, the remaining ties he has there, including the presence of family members and the appellant's immigration history. This may reasonably be described as a very poor immigration history. Having been given temporary admission, the appellant failed to return for interview and only made an approach to the authorities of the United Kingdom some nine years later, in October 2010. There was then a long period of delay, of about four and a half years. The judge was clearly well aware of that delay and he sensibly referred expressly to the decision of the Upper Tribunal in Dube [2015] UKUT 00090, in which the correct approach to section 117A to D of the 2002 Act and the relationship between the public interest considerations and EB (Kosovo) are considered. Again, it is readily apparent from the decision that the judge had delay clearly in mind.
12. Similarly, the decision clearly sets out the judge's reasoning in relation to the extent of the ties the appellant has established here, which are private life ties, since he arrived in 2001. The judge expressly referred to section 117B(4) and the consideration there that little weight should be given to a private life established at a time when a person is in the United Kingdom unlawfully. This bears directly on the ties established by the appellant during the years in which he remained here and worked unlawfully. True it is that there is no express mention of EB (Kosovo) but that omission falls very far short of showing any error, still less a material error of law.
13. As Mr Whitwell pointed out, in describing the period of the Secretary of State's delay as a dereliction of duty, the judge was repeating a concern of the Upper Tribunal Judge in a decision made earlier in the proceedings. It is clear that the judge has in fact given weight to delay as a relevant factor diminishing the public interest to an extent and strengthening the appellant's case. What the judge clearly went on to do, cogently, was make an assessment in which the balance nonetheless fell to be struck in the respondent's favour, the public interest in removal outweighing the appellant's interests. He took the public interest considerations in section 117B into account in his assessment. He weighed the issue of delay properly and was entitled to draw the conclusions he did. Even if the absence of any express mention of EB (Kosovo) or a rehearsal of parts of the judgment were to amount to an error of law, it would plainly not be material.
14. Turning to the second ground, Mr Whitwell is right that there has been no grant of permission in relation to it. In any event, the ground fails to disclose any error on the part of the judge. In substance, the challenge is to the Secretary of State's assessment of the case, as shown in the decision letter. For example, the point of contact between the appellant and the authorities was described there as being in February 2013 rather than October 2010. However, the true position and the correct chronology were clearly well understood by both parties by the time of the hearing and the judge similarly was not diverted by any error on the part of the decision maker. Paragraph 38 of the decision shows that the judge responded rationally to the submission made on the appellant's behalf in this context, found that there were no exceptional circumstances justifying the grant of leave and found that a substantial factor to be weighed in the balance in relation to delay was the appellant's failure to adhere to reporting conditions after his arrival. Even if permission had been granted, the second ground has not been made out and no error of law on the judge's part has been shown.
15. In summary, no error of law has been shown and the decision of the First-tier Tribunal shall stand.

Decision
The decision of the First-tier Tribunal shall stand.

Anonymity
The First-tier Tribunal Judge made an anonymity direction and there has been no application to vary it. In these circumstances, the direction shall continue unless and until a Tribunal or court directs otherwise.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge R C Campbell