Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01368/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 September 2016
On 15 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SYED ALI KASHIF NAQVI
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Respondent: Mr Murphy, counsel
For the Appellant: Mr Avery, Home Office Presenting Officer

DECISION AND REASONS

1. This matter comes before me for consideration as to whether or not there is a material error of law in the determination of First-tier Tribunal Judge Hodgkinson ("the FTTJ") promulgated on 5 March 2016, in which the FTTJ allowed the appellant's appeal against the refusal of his application for leave to remain on the grounds of long residence under paragraph 276B the Immigration Rules.

2. For ease of reference and continuity, throughout this decision I maintain the descriptions of the parties as appellant and respondent, as set out in the FTTJ's decision, although it is the Secretary of State who pursues this appeal.

3. No anonymity direction was made in the First-tier Tribunal and none was requested before me. I therefore make no such direction.

Background

4. The appellant entered the UK as a student in June 2005. His leave to remain was extended. For various reasons subsequent applications for further leave were rejected. However, on 10 July 2009 the appellant was granted further leave to remain as a student until November 2009. A subsequent application was refused but reconsidered and leave was granted from February 2010 until February 2012. Again a subsequent application was refused but granted on reconsideration. On 11 January 2012 the appellant applied for further leave to remain as a Tier 1 general migrant; leave was granted from 7 February 2014 until 7 February 2017. On 22 June 2015 the appellant made an application for indefinite leave to remain on the basis of long residence. That application was refused and the appellant appealed successfully against that refusal.

5. The respondent was granted permission to appeal to this tribunal in the following terms:

"?

2. The judge made an arguable error of law and arguably did not direct himself correctly. By reference to the applicable jurisprudence contained in the decision of the Upper Tribunal in Adjei (visit visas - Article 8) [2015] UKUT 261 the first question which the judge should have addressed and arguably did not address was whether Article 8 of the Human Rights Convention was engaged at all. A careful perusal of the judge's decision did not establish that the judge had answered the question and the judge arguably did not have jurisdiction to embark upon an assessment of the decision under appeal under the Immigration Rules which might otherwise have applied. The judge also made an arguable error of law in not considering or applying to the appeal before him Section 117B of the Immigration Act 2014 [sic]. An assessment of Section 117B was intrinsic to an assessment of the proportionality of the decision under appeal upon which the judge embarked at paragraph 38 of his decision.

3. The grounds disclosed arguable errors of law but for which the outcome of the appeal might have been different. The application for permission is granted."

6. Hence the matter came before me.

Submissions

7. Both parties' representatives agreed that the FTTJ's jurisdiction had been limited to deciding the appeal on human rights grounds. That is correct, for the reasons set out in the FTTJ's decision.

8. Mr Avery, for the respondent, submitted that, the appellant having extant leave until February 2017, the decision not to grant indefinite leave to remain (ILR) had not interfered with his protected rights. It was accepted that the long residence provisions in paragraph 276B of the Rules encompassed the applicant's right to a private life but, nonetheless, it was for the appellant to demonstrate that Article 8 was engaged by the respondent's decision. Only if it were engaged would it be appropriate to go on to consider the proportionality of the interference in the context of the Rules. The refusal to change the appellant's immigration status did not engage Article 8. The appellant had the option of making a further application. He submitted that if the FTTJ had considered whether or not Article 8 was engaged, he would have found it was not. There should have been no consideration of proportionality and, therefore, no consideration of the extent to which the appellant fulfilled the criteria in paragraph 276B. As regards s117B, Mr Avery submitted the approach of the FTTJ had been "odd"; he had not given the public interest factors due consideration. He should have found little weight could be given to the appellant's private life, per s117B(5) because it had been established while the appellant's status was precarious. Nor was it clear the appellant was financially independent in the UK.

9. Mr Murphy, for the appellant, relied on the Rule 24 reply which I summarise as follows. The FTTJ had decided the appellant did, as a matter of fact, meet the criteria in paragraph 276B and this was not challenged by the respondent in this appeal. Thus the appellant was entitled to remain in the UK on the basis of his long residence. In any event, whilst not explicit from the decision and reasons, it was implicit that the FTTJ had considered whether Article 8 was engaged and, having found this was so, went on to decide the issue of proportionality by reference to paragraph 276B. The FTTJ had had in mind that the appeal was limited to human rights grounds. It was submitted that Adjei and Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) had no bearing on the FTTJ's decision-making because those were entry clearance cases. It was accepted the appellant had leave to remain in the UK until February 2017 and that he could make another application for further leave to remain but this was irrelevant: the impact of the refusal was to deny the appellant the opportunity to apply for British citizenship earlier than he could otherwise have done. It had given rise to an interference with his right to a private life. A failure to grant leave to remain in accordance with Parliament's intentions was inappropriate. As regards s117B, the claimed error of law was misconceived: the FTTJ had considered the relevant public interest factors and borne in mind the appropriate definition of precarious immigration status insofar as the appellant's established private life was concerned. S117B(5) was not a bar to the grant of leave. The respondent had not raised the issue of financial dependence either in the refusal letter or at the appeal before the FTTJ; she should not be permitted to do so now.

Discussion and Findings

10. As Mr Murphy notes, Mostafa and Adjei are entry clearance cases. However, the principles in those cases are relevant to this matter for the following reasons. In this appellant's case, he had applied for leave to remain on the grounds of long residence, not on the grounds of his family and private life in the UK. His application was considered appropriately by reference to paragraph 276B. It was also considered by reference to Appendix FM and paragraph 276ADE. The FTTJ notes in paragraph 17 that "it appears to be common ground that the appellant cannot satisfy any of the provisions of Appendix FM or paragraph 276ADE". Thus it was accepted by both parties Appendix FM and paragraph 276ADE could have no application in the appeal before the FTTJ. In such a case the FTTJ's starting point should have been, pursuant to Razgar [2004] UKHL 27, consideration of whether Article 8 was engaged outside the Rules.

11. It was highly relevant for the FTTJ that this was not an appeal resulting from a removal decision. Nor did the appellant face voluntary departure from the UK because he had extant leave which was not due to expire until February 2017. There was ample opportunity for the appellant to make a fresh application, as Mr Murphy conceded. This was, in practice, an attempt by the appellant to change his immigration status to one which was more favourable, namely ILR. That is an option which still remained open to him notwithstanding the refusal of his application under paragraph 276B.

12. I am invited by Mr Murphy to find that it is implicit from the decision that the FTTJ found Article 8 to be engaged. However, the FTTJ has not set out his analysis or any finding as to the impact of the respondent's decision on the appellant. There is no reference, either implicitly or explicitly to the guidance in Razgar which requires the FTTJ to consider whether the consequences are of such gravity as to engage Article 8. He simply did not consider the issue but went straight into an analysis of proportionality. I acknowledge the threshold for engagement is not particularly high (VW (Uganda) v SSHD [2009] EWCA Civ 5). However, in the present case the appellant was not at risk of removal; he has leave to remain until February 2017 and the impact of the refusal decision is very limited. It was submitted that he had lost the opportunity to apply for British citizenship but I do not consider that this is a matter of sufficient gravity as to engage Article 8; it is an opportunity which is not lost but postponed (given the submissions made on his behalf). It was accepted by Mr Murphy that the appellant could make a fresh application either on the grounds of long residence or on human rights grounds notwithstanding the refusal of his long residence applcidation.

13. For these reasons I find that the FTTJ made a material error of law in failing to consider, as a preliminary issue, whether Article 8 was engaged. Had he done so, he would have found that Article 8 was not engaged, even taking into account the relatively low threshold for engagement. Thus given that the appeal was based only on human rights grounds, the appeal should have been dismissed at that stage of the analysis.

14. It was submitted that I should preserve the findings of the FTTJ insofar as paragraph 276B is concerned. I am unable to do so, given there was no necessity or requirement for a consideration of proportionality for the purposes of his human rights appeal. The FTTJ's findings in that regard are otiose, albeit unchallenged by the respondent in the proceedings before me.

15. Given my findings, there is no need for me to consider whether the FTTJ erred in law in failing to apply the public interest considerations in s117A-D of the 2002 Act. Any potential error of law in that regard is immaterial to the outcome.

Decision

16. The making of the FTTJ's decision did involve a material error of law as set out above.

17. I set aside the FTTJ's decision in its entirety and remake it by dismissing it.

A M Black
Deputy Upper Tribunal Judge Dated: 14 September 2016

Fee Award

The FTTJ made a fee award. I set that award aside: the appellant is not entitled to a fee award, the appeal having been dismissed.

A M Black
Deputy Upper Tribunal Judge Dated: 14 September 2016