Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00725/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th January 2017
On 25th January 2017

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Shahrad Nasrolahi Fard
(aNONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Marcus of Counsel instructed by S Hirsch & Co, Solicitors
For the Respondent: Mr P Nath, Senior Presenting Officer

DECISION AND REASONS

1. The appellant appeals with permission against the decision of First-tier Tribunal Judge James who dismissed an appeal against the Secretary of State's refusal to grant the appellant indefinite leave to remain in the UK on the basis of long residency and human rights. The application was refused on 3rd June 2015.
2. On 4th June 2004 the appellant was granted leave to enter the United Kingdom as a student with leave valid until 30th September 2004. His leave was subsequently extended until 30th September 2006.
3. Thereafter the history becomes more complicated. On 29th September 2006 he made an application for leave to remain as a postgraduate student and that application was refused on 6th October 2006. There is now and in the grounds of appeal to the First-tier Tribunal challenge to the legitimacy of that refusal because it is asserted that the Secretary of State failed to give the appellant the opportunity to rectify the defect in the payment, and the onus was on the Secretary of State as the funds were in the appellant's bank account. The appellant then made two further applications for leave to remain as a student on 26th October 2006, which was rejected as being on the wrong form, and the second on 16th November 2006. The appellant disputes that he ever received the refusal letter in respect of that last application and indeed it would appear that no dated refusal letter has ever been supplied. It was asserted by the respondent that the Secretary of State refused the application on 15th December 2006 and sent notification to the appellant on that date. That is disputed by the appellant. Although the Secretary of State asserts she served an IS151A on 10th May 2007. The appellant in his grounds of appeal submitted that the application lodged on 29th September 2006 should in fact not have been refused with the result that the appellant would still have had leave to remain in the UK when he temporarily left the UK on 14th May 2007. He also appears to dispute the receipt of the said decision on 15th December 2006.
4. On 31st January 2008, however, the appellant was granted leave to enter the United Kingdom as a student until 17th May 2011 subject to conditions and this leave was extended three times until 7th July 2015.
5. The appellant's latest application for leave to remain was refused on 3rd June 2015 on the basis that he did not meet the requirements for ten years' continuous lawful residence in the UK. The respondent asserted that the appellant did not have valid leave between 1st October 2006 and 16th January 2008. Despite the issue over the break in leave the Secretary of State, nevertheless addressed the break in residence and calculated that the appellant had combined absences from the UK of 987 days which exceeded the permissible limit of 540 days in accordance with paragraph 276A(a)(v) of the Rules.
6. The appellant, before the First-tier Tribunal Judge, submitted that there was no evidence that the respondent exercised her discretion in regard to the reason the appellant remained outside the UK in order to deal with his divorce and treatment for PTSD and the appellant relied on the respondent's own policy guidance on Long Residence dated 8th May 2015) in this respect.
7. First-tier Tribunal Judge James dismissed the appeal on 10th March 2016. Permission to appeal was granted by Upper Tribunal Judge Perkins, on the basis that the judge had not dealt properly with the appellant's contention that the Respondent should - not could- have considered her discretion to excuse some of the delay and arguably not dealt with the point that the decision made by the Secretary of State when refusing the application as invalid was so muddled (whether funds or wrong wording on the cheque) that it should not have been rejected at all.
8. The challenge, as agreed by Mr Nath and Mr Marcus at the hearing before me, was in respect of ground (i), that there was an error in the judge's decision in relation to the respondent's discretion.
9. The judge within his decision dealt with the discretion point at paragraphs 42 and 44 of his decision in the following way:-
"42. I have noted a number of features of this discretion. First, it is permissive. There is no requirement on a decision maker to exercise or consider the discretion. Second, the circumstances must be compelling or compassionate and prevent the applicant returning to the UK. The guidance provides a list of matters to consider before exercising discretion which I have noted. In relation to the Appellant's first absence from the UK he says that he stayed in Iran to resolve his divorce. While I can appreciate that this was a period of high emotion for the Appellant I do not accept that he was prevented from returning to the UK during that divorce process. However difficult the divorce process might have been, I do not accept that it would have required him to remain in Iran for the whole of the 261 days. I have noted that the Appellant has stated that it was during this period that he first suffered from PTSD and he has referred me to a letter from Dr Malakouti dated 26 May 2016. It is clear from that letter that Dr Malakouti did not treat the Appellant for PTSD during this period. Accordingly I do not find that the Appellant was prevented from returning to the UK because of any treatment he was receiving.
...
44. I have noted that the Appellant asked the Respondent to exercise discretion in this matter. As stated above I do not find that the Respondent is obliged to exercise discretion but in any event, the Appellant's circumstances do not meet the criteria required for the exercise of discretion in his favour."
10. It was asserted that the error the first passage disclosed was that the judge wrongly concluded that there was no obligation for the respondent even to consider the existence of her discretion. The appellant had expressly asked in his application that the respondent consider exercising her discretion and as the judge noted at paragraph 44.
11. Therefore:-
(a) the fact that under her policy the respondent was empowered to exercise the discretion was a relevant factor;
(b) the respondent was accordingly obliged to consider whether to exercise her discretion; and
(c) the failure to do so was a public error reviewable by the Tribunal on the basis described in Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC) at paragraphs 21 to 23.
12. As set out by Mr Marcus in the grounds of appeal that obligation is very different from an obligation to exercise the discretion in an appellant's favour and it would appear that the judge conflated the two obligations in paragraph 42. I note that it was not argued by either party that there was no discretion at all in view of the question of leave. Indeed the refusal of leave, as I have recorded, had also been challenged in the appeal.
13. Mr Nath argued that these were merely semantics and what the judge was really trying to state was that the decision was with the Secretary of State and it was not for the judge to make that decision. In effect the judge was stating that he was not in a position to mandate to the Secretary of State to exercise her discretion. As noted it is difficult to understand how the Supreme Court could have reached its conclusion in Mandalia v the Secretary of State for the Home Department [2015] 1 WLR 4546 if the judge's conclusion, which is that there was no obligation even to consider a discretion that the respondent has voluntarily adopted in a published policy - was correct.
14. What persuades me is that there was a specific request in the application to the Secretary of State to consider her discretion and in this case there was nothing in the decision letter issued to the appellant to deal with the points as set out in the application by the appellant's representatives. There was an obligation on the respondent to consider the fact of her policy and to make clear in her refusal letter that she had considered and exercised her discretion, even if it was not exercised in the appellant's favour. The point was not addressed at all in the decision letter.
15. The Policy states under the Section 'Time spent outside the UK' even refers, when assessing time spent outside, to departing the UK after the expiry of leave but applying for fresh entry clearance within 28 days. Under the same section of the guidance there is also a specific reference to exercising discretion 'over excess absence in compelling or compassionate circumstances' and 'this must be decided at senior executive officer (SEO) level'. The policy then set out a 'things to consider' paragraph.
16. The judge assumed that the circumstances in which discretion could be exercised were limited to those as set out in the policy. The policy conferred a discretion to be exercised by the respondent by reference to the indicative criteria; the criteria given are not exhaustive. I find that is an error of law. As is clear, it is not for the judge to act as the primary decision maker.
17. In the event that I found an error, both Mr Nath and Mr Marcus agree that I should be in a position to remake the decision. I find an error of law in the decision of Judge James and I remake the decision, and bearing in mind that this was an application by the appellant, I refer the matter to the Secretary of State for lawful consideration further to Greenwood cited above.
Notice of Decision

The First-tier Tribunal made an error of law and his decision is set aside. I remake the decision and allow the appeal to the extent set out.
No anonymity direction is made.

Signed Date Signed 23rd January 2017

Helen Rimington
Upper Tribunal Judge Rimington