Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01142/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 14 June 2013
On 24 June 2013

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

MIHILAN KATHIRGAMANATHAN

Respondent

Representation:

For the Appellant: Mr D Hayes, a Senior Home Office Presenting Officer
For the Respondent: Miss C Physsas, Counsel instructed by Vasuki, Solicitors

DETERMINATION AND REASONS

1. The respondent, Mihilan Kathirgamanathan, was born on 2 August 1984 and is a male citizen of Sri Lanka. The respondent had appealed to the First-tier Tribunal (Judge Easterman and Mrs J Holt) against a decision of the appellant dated 30 November 2012 to make a deportation order under the UK Borders Act 2007. The Tribunal, in a determination which was promulgated on 12 April 2013, dismissed the certification of the respondent’s asylum appeal under Section 73(2) of the Nationality, Immigration and Asylum Act 2002, dismissed the respondent’s asylum appeal and allowed the appeal under the Immigration Rules (paragraph 399A). The appellant, the Secretary of State, now appeals, with permission, to the Upper Tribunal.
2. At [71] the Tribunal found that the respondent was entitled to a period of 30 months’ leave under paragraph 399A as he had proved that he was a person who had “lived continuously in the United Kingdom for at least twenty years immediately preceding the date of the immigration decision discounting any periods of imprisonment and he has no ties (including social, cultural or family) with the country to which he would have to do [Sri Lanka] if he was required to leave the United Kingdom.”
3. I was assisted at the Upper Tribunal initial hearing by Mr Hayes, for the appellant, who told me that, by his calculation and by reference to a letter now adduced by the respondent dated 6 June 2013 from Surrey and Sussex Probation Trust, it was clear that (discounting periods during which he had been serving custodial sentences) the respondent had enjoyed a continuous period of residence in the United Kingdom of at least twenty years and four months.
4. As to ties with Sri Lanka, Miss Physsas, for the respondent, told me that the Presenting Officer at the First-tier Tribunal hearing had conceded that, given that his family were living with him in the United Kingdom and that the respondent himself had been in this country for more than twenty years, he had no ties of a social, cultural or family nature with Sri Lanka. The judge’s Record of Proceedings is not entirely clear on that point but Mr Hayes did not seek to pursue it.
5. In the light of my discussions with the representatives of both parties at the hearing, and having considered the determination and evidence (including the letter from Surrey and Sussex Probation Trust) carefully, I can identify no error of law in the application by the First-tier Tribunal of paragraph 399A of the Immigration Rules. The Tribunal was right to conclude that the respondent satisfied the Rule and should, as a consequence, be granted 30 months’ leave to remain.
6. The grounds also submit that the Tribunal gave insufficient reasons for concluding that the appellant had rebutted Section 72 presumption. I do not find that this ground has any merit. The Tribunal dismissed the respondent’s asylum appeal and gave, in my opinion, adequate reasons for not upholding the certification under Section 72. Given that the asylum appeal failed, it cannot be said that the certification was material in any event.
7. In the circumstances, this appeal is dismissed.

DECISION
8. This appeal is dismissed.

Signed Date 24 June 2013

Upper Tribunal Judge Clive Lane