Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04328/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 July 2017
On 02 August 2017

Before

UPPER TRIBUNAL JUDGE blum

Between

THI MY NGAN HUYNH
(anonymity direction NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms M Sowerby, Counsel, instructed by The Chancery Partnership
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision of Judge of the First-tier Tribunal Birk (FtJ), promulgated on 19 January 2017, dismissing the Appellant's appeal against the Respondent's decision of 30 January 2015 refusing her application for Indefinite Leave to Remain (ILR) on the basis of her lawful residence for a continuous period of 10 years.

Factual Background

2. The Appellant is a national of the Vietnam, date of birth 13 March 1986. She entered the United Kingdom on 19 September 2005 with entry clearance as a student. She was subsequently granted further periods of leave to remain.

3. On 2 February 2013 the Appellant made an in-time application (her leave to remain was to expire on the 24 February 2013) for leave to remain as a Tier 1 (General) migrant. On 28 February 2013 the Respondent purportedly rejected this application as having been invalidly made. The Respondent contended that the Appellant had not completed the relevant payment page of her application. The Appellant maintained that she had completed the payment page and that she had indeed attached a cheque to the application. The Appellant nevertheless attempted to resubmit the application on 5 March 2013. On the 28 March 2013 the application was returned to the Appellant marked as being invalid. The Respondent stated that there were insufficient decision rejecting this second application as invalid was received by the Appellant on 5 April 2013. On that day she approached the Sales and Service Manager of her bank who provided a letter confirming that the Appellant had maintained sufficient funds in the account to cover the fee on the date that the Respondent attempted to take payment. The letter confirmed that the cheque was unpaid due to a bank error. On 8 April 2013 the Appellant once again resubmitted her application. Her application for leave to remain was granted on 7 May 2013, valid until 3 May 2016.

The Respondent's decision of 4 September 2015

4. In September 2015 the Appellant applied for ILR in the UK under paragraph 276B of the immigration rules (which contains the requirements for ILR on the grounds of long residence). This application was refused on 4 September 2015. In her decision the Respondent set out the history as described above. The Respondent considered that the Appellant's lawful leave expired on 28 February 2013 (it had been extended by virtue of section 3C of the Immigration Act 1971) and that she was not again granted leave to remain until 3 May 2013, 64 days later. Paragraph 276B requires an applicant for ILR to not have remained 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. As the Appellant remained in breach of the immigration laws in excess of 28 days in 2013 she could not achieve at least 10 years continuous lawful residence. The Respondent went on to consider whether the Appellant met the requirements of paragraph 276ADE of the immigration rules (containing the requirements to be met by an applicant seeking leave to remain on the grounds of private life) but concluded that those requirements were not met. The Respondent finally concluded that there were no circumstances that were sufficiently compelling or compassionate in nature sufficient to warrant a grant of leave to remain outside of the immigration rules and in accordance with article 8.

5. It is important to note at this stage that the refusal of the Appellant's application bestowed upon her a right of appeal. Under the section of the decision headed "right of appeal" the Respondent noted that the right of appeal arose under section 82 of the Nationality, Immigration and Asylum Act 2002 as the Respondent had refused the Appellant's "human rights claim."

The decision of the First-tier Tribunal

6. The Appellant sought an appeal 'on the papers'. Consequently there was no tribunal hearing. The detailed grounds of appeal to the First-tier Tribunal, which were supported by a witness statement from the Appellant, essentially contended that the Appellant had fully completed the payment section of her application dated 2 February 2013 and that a cheque had been stapled to the form, and that the Respondent made a mistake in claiming that the payment section had not been completed. The grounds additionally contended that, in failing to take proper account of the bank letter confirming that the inability to draw funds following the renewed application of 5th of March 2013 was due to a bank error, the Respondent failed to apply her own guidance when determining the existence of exceptional reasons.

7. After setting out the immigration history and the basis of the Respondent's refusal, Judge of the First-tier Tribunal Birk noted, at [8] that the only ground of appeal now available to the Appellant was that based on her human rights. The judge stated, "The Appellant and her grounds of appeal and also her witness statement has only addressed the issue of the chronology and failures that she alleges of the Respondent in dealing with her applications." At [9] the judge noted that the Appellant had family in Vietnam and that she appeared to have none in the UK, and that she failed to set out or argue that she meets "? any of the immigration rules in respect of her family and private life." At [10] the judge stated that the Appellant had not argued that the immigration rules for leave to remain were met and concluded that there were no compelling circumstances justifying an assessment outside of the immigration rules. The appeal was dismissed.

The grounds of appeal and the decision of the Deputy Upper Tribunal Judge

8. The grounds of appeal to the Upper Tribunal asserted that the judge failed to make any findings in relation to whether the immigration rules (paragraph 276B) were met and failed to refer to any of the evidence and the submissions made on her behalf in writing as to her compliance with paragraph 276B. In granting permission judge of the first-tier Tribunal Scott Baker stated that the determination was succinct and there was little reference to any of the evidence submitted by the Appellant or any analysis of the same and few findings of fact. Permission was granted on all grounds.

9. The matter came before Deputy Upper Tribunal Judge Mailer on 19 April 2017. The Deputy Upper Tribunal judge set out in some detail the basis of the appeal to the Upper Tribunal and recorded the submissions of the representatives, including those of Mr Sowerby. At [29], seemingly in reliance on the submissions made to him by Mr Clarke, the Presenting Officer, the judge focused on the absence of any evidence provided by the Appellant indicating that she would be adversely affected by the decision under challenge. There was said to be no evidence of any relationship entered into by the Appellant and no evidence of her engagement in society. There was no evidence relating to any social ties which could not be replicated in Vietnam. "There was in fact no reference to the development of any close, personal or social ties which developed over time." At [30] the Deputy Judge referred to the Appellant's appeal as being limited to "human rights grounds" and stated that the "First-tier Tribunal was thus bound to consider the grounds of appeal which contended that the Respondent's decision was incompatible with human rights under the Convention." The Deputy Judge concluded that the First-tier Tribunal had considered the matters raised by the Appellant but was entitled to conclude that there were no compelling circumstances outside of the rules sufficient to warrant a grant of leave to remain.

10. The Appellant sought permission to appeal this decision to the Court of Appeal. The grounds contended that the Deputy Judge failed to properly consider the Appellant's evidence in relation to compelling circumstances and failed to address or engage with her submissions relating to paragraph 276B. Nor was there any assessment with the submission that the Respondent failed to lawfully exercise her discretion when assessing the validity of the applications made by her in 2013.

11. In a decision issued on 2 June 2017 Upper Tribunal Judge Jordan set aside the decision of the Deputy Upper Tribunal Judge pursuant to rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Judge Jordan, whilst accepting that the appeal before the First-tier Tribunal was limited to a human rights claim, noted that such a claim was arguably linked to the requirements set out in paragraph 276B as an applicant who had achieved 10 years continuous lawful resident met the requirements for ILR, and that this was considered to be a human rights claim. Judge Jordan noted that if an applicant meets the requirements of paragraph 276B but has been refused ILR and is liable to removal that must amount to a violation of the persons protected private and family life. Judge Jordan noted that the First-tier Tribunal judge misunderstood the nature of the appeal and that the Deputy Upper Tribunal Judge did not detect the arguable error in the First-tier judge's approach. Having set aside the Upper Tribunal's decision the matter was relisted with directions, inter alia, that the Appellant file and serve a skeleton argument setting out what evidence was before the First-tier Tribunal judge in respect of the Appellant's allegation than the bank and or the Respondent was at fault in holding her 2013 applications as invalid and that the Appellant was to provide the contents of each of the two sets of grounds of appeal to the Upper Tribunal.

The error of law hearing

12. There was significant agreement between the parties at the commencement of the hearing before me. Both representatives accepted that the First-tier Tribunal judge failed to consider or make any findings in respect of the submissions before her relating to the Appellant's alleged overstaying in 2013. It was accepted that this was a material error of law given that the application under paragraph 276B was itself a human rights claim. Mr Kotas, on behalf of the Respondent, accepted that the Appellant had in fact completed the payments page in respect of both of her applications made on 2 February 2013 and 5 March 2013. Mr Kotas produced General Case Information Database (GCID) notes indicating that the cheque submitted in respect of the application dated 2 February 2013 was 'rejected', which was inconsistent with the Respondent's claim that the payment page had not been completed. Mr Kotas additionally accepted that the Appellant had fully completed her payments page of her Tier 1 application.

Discussion

13. Both parties accept that the First-tier judge materially erred in law by failing to engage with the detailed written submissions before her relating to the Appellant's compliance with paragraph 276B. Both the First-tier judge and the Deputy Upper Tribunal judge concentrated only on whether the Appellant could demonstrate that she had established a family or private life in the UK with reference to paragraph 276ADE of the immigration rules, Appendix FM of the immigration rules, and whether there were any compelling circumstances outside of the rules capable of justifying a grant of leave to remain on the basis of article 8. Neither judge appears to have appreciated that an application under paragraph 276B is a human rights claim. This was not disputed by either representative and is quite clear from the Home Office guidance in respect of rights of appeal. Through various immigration rules, including paragraph 276B, the Respondent has set out certain criteria that must be met in order for an individual to be granted leave to remain on the basis of the private life they have established for themselves in the UK. As such it was incumbent on the First-tier judge to have considered whether the Appellant did in fact meet the requirements of paragraph 276B as her compliance with this paragraph would mean that she met the requirements for ILR on a human rights claim. The grounds made it clear that the Appellant disputed that her application dated 2 February 2013 was invalid. The judge was required to engage with the submission and make appropriate findings of fact.

14. Having found a material error of law I considered it appropriate, in light of the submissions made by both representatives, to proceed to remake the decision. I am in no doubt that Mr Kotas was right to accept on behalf of the Respondent that she made a mistake in refusing to accept that the application of 2 February 2013 was validly made. It is abundantly clear from her decision dated 28 February 2013 that the application was refused on the basis that the Appellant had not made a payment and had not completed the payment page of her application form. The Appellant retained a copy of that application form. The copy, which was not challenged in any way by the Presenting Officer, was fully completed and indeed had a cheque attached to it. I am further reinforced in finding that the application form was completed by reference to the GCI notes provided by Mr Kotas at the hearing. The relevant GCI note, with reference to the decision of 28 February 2013, noted "app rejected. Check rejected." As Mr Kotas pointed out a cheque could not be rejected if it was not attached to the form and the form was not fully completed. No details were provided as to why the cheque was allegedly rejected. I have additionally taken into account the low likelihood that the Appellant, a clearly intelligent woman with impressive academic achievements, would have failed to complete one of the most vital aspects of her application. Having cumulative regard to these factors I am left in no doubt whatsoever that the Appellant made a valid application on 2 February 2013 and that the Respondent mistakenly rejected the application as invalid. The Appellant therefore did make a valid application on 2 February 2013 and this application was pending until she was granted further leave to remain on 3 May 2013.

15. The above finding of fact means that the Appellant spent no time as an over stayer in 2013. This was effectively accepted by Mr Kotas. As the Appellant lawfully entered the UK on 19 September 2005, by 19 September 2015 she had remained lawfully in the UK for a continuous period of at least 10 years.

16. In refusing the Appellant's human rights claim pursuant to paragraph 276B the Respondent made a significant factual error which affected her ultimate conclusion. By characterising an application pursuant to paragraph 276B as a human rights claim the Respondent has set out the requirements which, in her view, satisfy the requirements of article 8 ECHR. By making a material error in her assessment as to whether the requirements of paragraph 276B have been met the Respondent has acted in a manner that is disproportionate under article 8. The Respondent's decision is consequently unlawful under section 6 of the human rights act 1998 as it breaches the Appellant's right to respect for her private life.

17. The appeal is consequently allowed on human rights grounds, i.e. the decision is unlawful under section 6 of the Human Rights Act 1998.

18. The consequence of this appeal is that the Appellant has an outstanding claim before the Respondent under paragraph 267B. The Respondent must now consider that application in light of my factual finding that the Appellant has remained in the UK for a continuous lawful period of 10 years. Under paragraph 276B(ii) the Respondent must have regard to the public interest when determining whether it would be undesirable for the Appellant to be given ILR. It is appropriate for the Respondent to consider the public interest factors at first instance. The application therefore remains outstanding before the Respondent to consider the relevant public interest factors in light of my findings of fact that the Appellant has remained in the UK for a continuous lawful period of 10 years.

Notice of Decision

The First-tier Tribunal decision is vitiated by a material error of law.
The appeal is allowed on human rights grounds.
The Respondent is to determine the Appellant's pending application for ILR under paragraph 276B on the basis that the Appellant has lawfully resided in the UK for a continuous period of at least 10 years.

1 August 2017

Signed Date

Upper Tribunal Judge Blum