Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/11316/2014
AA/00114/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 16th February 2017
On 22nd February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

daud omarkhail
javed omarkhail
(ANONYMITY DIRECTION NOT MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr A Pipe of Counsel instructed by Guildhall Solicitors
For the Respondent: Mr D Mills, Home Office Presenting Officer

DECISION AND REASONS

1. These are the appellants' appeals against the decision of Judge Hall made following a hearing at Birmingham on 24th June 2016.
Background
2. The appellants are citizens of Afghanistan and are brothers. Javed Omarkhail was born on 15th June 1995 and Daud on 25th December 1996. They entered the UK illegally on 9th September 2009 and claimed asylum. They were refused but both granted discretionary leave to remain on grounds of their age until 15th December 2012 and 22nd April 2013 respectively. They then made in-time applications for further leave to remain on article 8 grounds, which were refused and a subsequent appeal was dismissed. The appellants successfully challenged that decision and it was remitted back to the First-tier Tribunal for a fresh decision to be made.
3. Judge Hall recorded that it was the appellants' argument that they had had the benefit of discretionary leave to remain, and as at the date of hearing had accrued in excess of six years' continuous leave and would therefore be entitled to settlement under the respondent's discretionary leave policy. Mr Pipe submitted to him that the fact that they appeared to meet the policy significantly reduced the public interest in removal.
4. The judge dealt with that argument at paragraph 49 of the determination and said that if the appellants were entitled to make an application under the discretionary leave policy they should do so. He dismissed the appeal.
5. The appellants sought permission to appeal on the grounds that the judge had materially erred in law in failing to consider the argument that since the appellants meet the settlement policy for those who have accrued six years' continuous discretionary leave, he should have considered that as a matter relevant to the public interest in their removal. The fact that they met the policy was a material consideration in the proportionality assessment, and would reduce the substantial weight given to the public interest
6. Permission to appeal was granted by Judge Fisher on 27th July 2016.
7. On 23rd August 2016 the respondent served a reply submitting that the grounds had misconstrued the purpose of the discretionary leave policy. The mere fact that the appellants had now spent six years in the discretionary leave category as a result of them being on 3C leave did not mean that they had accrued six years' discretionary leave.
The Hearing
8. At the hearing Mr Mills frankly acknowledged that he could not uphold the position set out in the reply.
9. He helpfully provided for me the Asylum Policy Instructions on Discretionary Leave. At section 10.1, the transitional arrangements, the policy states:
"Those granted leave under the DL policy in force before 9th 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 will be eligible to apply for settlement after accruing six years' continuous DL) (or where appropriate a combination of DL and LOTR, see section 8 above)), unless at the date of decision they fall within the restricted leave policy."
10. At section 8 it states:
"Any leave accrued whilst waiting for a valid application for further leave to be considered, may count towards the required period of leave for settlement, providing the application was made in time and leave was automatically extended in accordance with section 3C(2) of the Immigration Act 1971. See Section 3C and 3D leave for further guidance."
11. Mr Mills conceded that the judge had materially erred in law in failing to have regard to a relevant matter, namely that the appellants may well now qualify for discretionary leave. He asked that the appeal be adjourned so that the Secretary of State could make a decision as to whether such leave should be granted, and if it was, the appeals could be withdrawn.
12. Mr Pipe opposed that course of action. He reminded me that there was a long history to this matter. There was prima facie evidence that the appellants would meet the requirements of the policy since the reasons for refusal letter stated that there was to be no exclusion under Article 1F of the Refugee Convention and no known criminal history in relation to either appellant. Moreover the first appellant had now married and had a British son, and he would appear to satisfy the requirements of Section 117B(6) of the 2002 Act. The Immigration Judge had accepted that the younger brother enjoyed family life with his siblings since he was dependent on him and they had always lived together.
Findings and Conclusions
13. The judge erred in law in failing to have regard to a relevant matter. His decision is set aside.
14. On the face of it, it appears that both appellants satisfy the requirements for a grant of settlement having accrued six years' discretionary leave. Section 3C leave is the statutory extension of existing leave (QI (Pakistan) v SSHD [2011] EWCA Civ 614) which is reflected in the Asylum Policy Instruction on Discretionary Leave published on 18th August 2015.
15. Whilst there can be no certainty that the Secretary of State will grant further leave in accordance with her policy, given that she has not yet made the necessary checks in relation to the appellants' criminal history, that in itself is not a sufficient reason to adjourn this appeal. Clearly if the Secretary of State does discover some recent criminal history she is not obliged to make the grant of leave in accordance with this determination. However, at the present time, there is no reason to believe that further leave will not be granted and therefore not a sufficient basis to leave the appellants in a state of further uncertainty.
16. The fact that prima facie the appellants qualify for a grant of settlement under the discretionary leave policy manifestly undermines the public interest in the appellants' removal. It is a material consideration which makes the appellants' case compelling.
17. Moreover, in relation to the first appellant, since he now has a British wife and British child, he would appear to satisfy the conditions set out in Section 117B(6), namely that he has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the UK.
18. So far as the second appellant is concerned, the judge found that there was dependency beyond normal emotional ties between him and his brother, so that family life exists between them. Whilst the factors set out in paragraph 117B count in favour of the Secretary of State, in this case the fact that he would appear to satisfy the requirements for a grant of leave, having accrued six years' discretionary leave, is determinative in his favour. Mr Mills did not seek to argue otherwise.
Notice of Decision
19. The original judge erred in law. The decision is set aside. It is remade as follows. The appellants' appeals are allowed.

No anonymity direction is made.

Signed Date 21 February 2017

Deputy Upper Tribunal Judge Taylor