Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03109/2015

THE IMMIGRATION ACTS

Heard at North Shields
Determination Promulgated
On 12 September 2016
On 13 September 20016
Prepared on 12 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

V. A.
(ANONYMITY DIRECTION)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Ms Petterson, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Russia who first entered the UK lawfully as a student in August 2004. On 26 May 2015 she applied for indefinite leave to remain based upon the length of her residence in the UK, pursuant to paragraph 276B of the Immigration Rules. That application was refused by the Respondent on 9 July 2015 because the total number of days spent outside the UK within the requisite ten year period exceeded 540 days. No decision was however made to remove the Appellant from the UK by reference to s47, because at that time she still held leave to remain as a Tier 2 Migrant until 14 May 2016. No decision to curtail or cancel that leave was made.
2. The Appellant duly appealed the decision to refuse to grant her ILR. Her appeal was heard on 7 January 2016, and allowed on Article 8 grounds by decision of First Tier Tribunal Judge Kelly, promulgated on 14 January 2016.
3. By a decision of First Tier Tribunal Judge Pedro dated 3 June 2016 the First Tier Tribunal granted the Respondent permission to appeal on the basis it was arguable that the Judge had made a material error of law because the Appellant's Article 8 rights were not engaged by the decision under appeal given the lack of any removal decision and the leave to remain that she continued to enjoy.
4. The Appellant has filed no Rule 24 response to the grant of permission.
5. Thus the matter comes before me.

Article 8
6. Judge Kelly proceeded on the basis that the Appellant only enjoyed a right of appeal against the decision of 9 July 2015 if the Respondent had decided to refuse a human rights claim [6], and that the only ground of appeal available to her was that the decision was unlawful under s6 of the Human Rights Act 1998 [7], as a result of the statutory amendments introduced by s15 of the 2014 Act [25].
7. At the hearing before the Judge both parties appear to have proceeded upon the basis that the Respondent had refused a human rights claim.
8. The Respondent had conceded at the hearing that the Appellant had established both a "private life", and a "family life" in the UK as a result of her six year relationship with her boyfriend [26], a citizen of Switzerland. There has however never been any consideration by the Respondent of the Appellant's position pursuant to Regulation 8 of the EEA Regulations 2006, since that concession appears to tacitly concede that she was then in "a durable relationship" with a Swiss national. Given the length of time he has lived and worked in the UK it is likely that he has acquired a permanent right of residence in the UK pursuant to Regulation 15. Thus, although the point was not taken below, arguably the Respondent should have considered whether to exercise her discretion in order to issue the Appellant with a residence card pursuant to Regulation 17(4).
9. The Judge stated that "the consequences of the Appellant's removal would plainly be sufficient to surmount the modest hurdle necessary to engage the potential operation of Article 8". The obvious difficulty with that approach to the appeal was that there was no removal decision. The Appellant continued to enjoy a period of leave to remain as a Tier 2 Migrant for a further four months. All that the Respondent had done in the decision under appeal was to refuse to vary her limited leave as a Tier 2 Migrant, to grant her ILR well in advance of the expiry of that limited leave. If the Appellant wished to apply to vary her limited leave in order to obtain a further limited grant of leave to remain as a Tier 2 Migrant (or in any other capacity) then it was open to her to do so, and she had ample time to do so before her existing grant of leave expired. There was no curtailment, or cancellation of the Appellant's leave.
10. In fact the Appellant did have the time and opportunity to successfully apply for a further period of leave to remain as a Tier 2 Migrant, so that she was granted a further period of leave to expire on 14 September 2016 to allow herself and Durham University to arrange with their commercial sponsor, the funding for a further period of research in her area of expertise, which would allow her to apply for a lengthier period of limited leave to remain. I was told that those commercial arrangements were now in place, and that as a result a further application for a variation of her limited leave to remain as a Tier 2 Migrant had been made, and that it awaited a lawful decision.
11. Ms Petterson's stance, upon instructions, was that the decision that was under appeal before Judge Kelly did not engage the Appellant's Article 8 rights, as indeed the grounds of the application for permission assert.
12. In the course of discussion about that stance, which do not appear to reflect the way the appeal was presented on behalf of the Respondent below, Ms Petterson accepted that the Respondent had incorrectly calculated the number of days the Appellant had spent outside the UK as 837 days in the relevant ten year period, when as the Judge noted it was conceded at the hearing to have been only 765 days. She also accepted that the decision maker appeared to have drawn no distinction between periods that were spent outside the UK for study purposes, for work, or for holiday. All had been treated as carrying equal weight. I therefore raised the question with Ms Petterson as to whether the Respondent had in fact followed her own policy in relation to the application that the Appellant had made. It is not uncommon for study at degree level to either require study abroad, or to encourage it, and thus I would have expected the Respondent to have considered under any relevant policy, or pursuant to her general discretion, whether such a period of time should be counted as part of the permitted maximum period of 540 days outside the UK within the ten year period of continuous lawful residence relied upon. (Whilst the point was not formally conceded by the Respondent, it is the Appellant's case that without the periods of study at the University of Santiago de Compostela none of the periods outside the UK exceeded 28 days in length, and in total they fell well short of the 540 day permitted maximum.)
13. Ms Petterson requested permission to take instructions, which I granted, and the appeal was stood down. When the appeal was called on once again, she conceded upon instructions that the decision under appeal was not in accordance with the law, and she sought permission to withdraw the decision under appeal, which I granted pursuant to Rule 17(2) of the Upper Tribunal Procedure Rules.
14. The effect, as Ms Petterson accepts, is to leave the Appellant's application for ILR pursuant to paragraph 276B awaiting a lawful decision upon it. This application therefore sits alongside the Appellant's outstanding application for a variation by way of extension of her existing leave as a Tier 2 Migrant. For a lawful decision to be made the Respondent will no doubt have to consider the Appellant's position pursuant to Regulation 17(4) of the EEA Regulations in addition.

DECISION
The Upper Tribunal consents pursuant to Rule 17(2) to the Respondent withdrawing the decision under appeal of 9 July 2015.
The decision of the First Tier Tribunal promulgated on 14 January 2016 is in the circumstances set aside by operation of law.

Direction regarding anonymity - Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until the Tribunal directs otherwise the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.

Deputy Upper Tribunal Judge JM Holmes

Dated: 12 September 2016