Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03390/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 12th December 2016
On 18th January 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

Mr. Benny Kayata Maiti
(NO ANONYITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

An Anonymity Direction is NOT made. There has been no request and there is no apparent need.

Representation:
For the Appellant: Parkview Solicitors.
For the Respondent: Mrs Aboni, Home Office Presenting Officer.

DECISION AND REASONS
Introduction
1. Although it is the respondent who is appealing in these proceedings, for convenience, I will continue to refer to the parties as in the First-tier Tribunal.
2. The appellant is a national of Zambia born on 28 December 1978. He came to the United Kingdom as a student on 27 July 2004. He subsequently made a series of applications for further leave to remain as a student, some of which were in time and some were not. His last leave expired on 19 March 2016.
3. On 28th of April 2015 he made an application for indefinite leave to remain on the basis of paragraph 276B of the immigration rules. This provides as follows:
The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i)(a) he has had at least 10 years continuous lawful residence in the United Kingdom.
(ii) having regard to the public interest there are no reasons why it should be undesirable for him to be given indefinite leave to remain...
(v) the applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded...
4. His application was refused on 17 July 2015. The reason was because there were periods in excess of 28 days when he was here without leave.
The First tier Tribunal
5. His appeal was heard before Judge of the First-tier Tribunal Pickup at Manchester on 7 April 2016. Both parties were represented. Submissions were made to the judge about the length of time when the appellant was not in the United Kingdom lawfully. An argument was advanced upon the Home Office policy guidance in relation to long residence and private life whereby decision-makers are to have regard to any exceptional circumstances as to why the person overstayed more than 28 days. The judge concluded that the respondent had not properly exercised this discretion and consequently, that the decision was not in accordance with the law. The appeal was allowed to this extent, with the lawful decision awaited. Because of this conclusion the judge did not go on to consider the appellant's private and family life.
The Upper Tribunal
6. The respondent sought permission to appeal on the basis the appeal was limited to human rights grounds. This was because the application was made on 28 April 2015 and the appeal was a `new' appeal under the 2014 Immigration Act. Consequently the judge had no jurisdiction to consider whether the decision was otherwise in accordance with the law. It was also contended that the judge was incorrect in the calculation of lawful residence. Furthermore, the judge was wrong to say that the respondent had not exercised her discretion and this was referred to in the refusal (see under `Discretion for breaks in lawful residence' in the Refusal letter).
7. Leave was granted on this basis.
8. At hearing, it was accepted by both parties that the appeal was restricted to human rights grounds.
9. The appellant's representative sought to argue that the First-tier decision could still be maintained on the basis of the slip rule as set out in Katsonga ("Slip Rule"; FtT's general powers) [2016] UKUT 00228. The Upper Tribunal there said that the slip rule contained in the procedural rules is aimed at clerical mistakes and accidental slips. It cannot be used to reverse the material effect of a decision. The appellant's representative contended the issue with the present decision could be resolved if at paragraph 28 `I find that the decision of the Secretary of State was not in accordance with its own policy guidance (my emphasis) ...' were read as `not in accordance with the law '.
10. I find the submission from the appellant's representative is not correct. What he is suggesting goes beyond correcting and accidental error such as a typo where the meaning is clear. What he would propose means a complete change in the underlying issue. This is exactly the point made in Katsonga ("Slip Rule"; FtT's general powers) [2016] UKUT 00228.
11. At paragraph 6 of the decision the judge appreciated the statutory changes to rights of appeal but the conclusion that there was a full right of appeal against the immigration and human rights aspects was incorrect. Consequently the judge materially erred in law. The error is fundamental and the decision cannot stand.
12. I direct that the matter be remitted to the Erst-tier Tribunal for a de novo hearing. At that hearing the periods of time the appellant has spent lawfully and unlawfully will be relevant in the assessment of his private life and the provisions of section 117.
Decision.
The decision of First tier Judge Pickup allowing the appeal to the limited extent expressed materially errs in law. That decision is set aside and the matter remitted for a de novo hearing before the first-tier Tribunal.

Deputy Upper Tribunal Judge Farrelly

Directions.
1. The decision of First tier Judge Pickup is set aside as materially erring in law.
2. The matter is remitted to the First-tier Tribunal for a de novo hearing.
3. The appeal is limited to consideration of whether the decision is unlawful under section 6 of the Human Rights Act.
4. In preparing for the appeal the appellant and his representatives should seek to provide evidence in relation to his private and any family life here.
5. An assessment of his human rights claim would involve looking at his situation through the prism of the relevant immigration rules and policy. (See for e.g., Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 and Kaur (visit appeals: Article 8) [2015] UKUT 00487. A schedule of times when he was lawfully in the United Kingdom and times when he was here unlawfully should be prepared with explanations given for periods of unlawful presence.
6. If there is a need for an interpreter for any of the witnesses the appellant's representatives should advise the tribunal.

Deputy Upper Tribunal Judge Farrelly