Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/04920/2018
HU/06221/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 July 2019
On 10 July 2019

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

the Secretary of State for the Home Department
Appellant
and

Mohammad Momtazul kabir
mst jannatul ferdous
(ANONYMITY DIRECTION not made)
Respondents

Representation:
For the Appellant: Ms A Everett, Senior Home Office Presenting Officer
For the Respondents: Mr M Biggs, Counsel, instructed by City Heights Solicitors

DECISION AND REASONS
Introduction
1. This is a challenge by the Secretary of State against the decision of First-tier Tribunal Judge Andonian ("the judge"), promulgated on 3 October 2018, in which he allowed the appeals of Mr Kabir ("the first Claimant") and his wife, Mrs Ferdous, against the decision of the Respondent dated 31 January 2018, which in turn had refused their human rights claims.
2. The first Claimant has been in the United Kingdom for a number of years. During this period, he had been granted successive periods of limited leave to remain. By an application made on 22 September 2015 he sought indefinite leave to remain under paragraph 245CD of the Immigration Rules ("the Rules"). This application was refused by the Secretary of State on the sole ground that it was alleged that the first Claimant had used deception previously in his dealings with the Secretary of State and/or HMRC. This allegation related to discrepancies in stated earnings.
3. Following this, on 18 January 2016, the first Claimant made another application for indefinite leave to remain under the same route as before. On 8 September 2016, this application his was varied, with leave now being sought under the ten years' continuous lawful residence route, pursuant to paragraph 276B of the Rules.
4. In refusing the application, the Secretary of State concluded that the first Claimant had not in fact had the requisite ten years' continuous lawful residence, as his leave to remain had expired prior to him making the application on 18 January 2018. In addition, the earnings discrepancies mentioned above were relied on once more and para 322(5) of the Rules was invoked against him.

The judge's decision
5. At paragraphs 59-60 of his decision, the judge concluded that the first Claimant had accrued the necessary ten years' continuous lawful residence in the United Kingdom and found that he therefore satisfied all the requirements of paragraph 276B of the Rules.
6. For the purposes of my error of law decision, it is the conclusions on the second issue which are of greatest significance. Having considered what was clearly a good deal of evidence put forward by the first Claimant in respect of misconduct by accountants acting on his behalf in the past, the judge found that the discrepancies identified by the Secretary of State had not occurred as a result of any dishonesty on the first Claimant's part, but out of carelessness only. The judge found all of the relevant evidence to be reliable, and in light of these conclusions he found that paragraph 322(5) of the Rules did not apply. The appeal was duly allowed on the basis of Article 8.

The grounds of appeal and grant of permission
7. The Secretary of State challenged the decision in respect of the judge's conclusion on the paragraph 322(5) issue only. Nothing was said about the ten years' continuous lawful residence issue.
8. Permission to appeal having been refused by the First-tier Tribunal, the application was renewed, and permission granted.
9. The matter then came before Deputy Upper Tribunal Judge Chana who, by a decision promulgated on 2 April 2019, concluded that the judge had erred in law and that the appeal should be remitted to the First-tier Tribunal. The first Claimant sought to challenge this decision by way of an application for permission to appeal to the Court of Appeal. On receipt of the application for permission, Upper Tribunal Judge Gleeson exercised her powers under rules 45 and 46 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and set the decision of Judge Chana aside.
10. In this way the matter came back before me for a decision on error of law.

The hearing
11. At the hearing, Ms Everett made an application to amend the Secretary of State's grounds of appeal in order to include a challenge to the judge's conclusions on the ten years' continuous lawful residence point, having regard to the judgment of the Court of Appeal in Masum Ahmed [2019] EWCA civ 1070. Mr Biggs robustly resisted this application, submitting that the Secretary of State had had ample time to seek to amend the grounds in advance of the hearing and that an amendment at this stage would cause the first Claimant real prejudice.
12. Rather than making a decision on this application immediately, I considered it appropriate to first hear argument on the Secretary of State's existing grounds of appeal relating to the judge's conclusions on the paragraph 322(5) point.
13. Ms Everett relied on the grounds. She submitted that the judge's reference to the first Claimant being "careless" in respect of the earning discrepancies was in the circumstances, inadequate.
14. Mr Biggs relied on the judgment of the Court of Appeal in Balajigari [2019] WLR(D) 232 and referred me specifically to paragraph 42. He submitted that the judge had found the first Claimant to be credible and that was sufficient to dispose of the dishonesty point. He emphasised the fact that the Secretary of State was not alleging perversity on the part of the judge and noted that the judge had been fully aware of the timing of the amendments made to the tax returns.

Error of law decision
15. I gave my decision orally, concluding that there are no material errors of law by the judge in respect of the paragraph 322(5) issue.
16. It is quite clear that the judge had proper regard to what was clearly significant evidence put forward by the first Claimant. It is apparent that the first Claimant, with the assistance of his legal representatives, had provided detailed evidence relating to difficulties with previous accountants and as stated, albeit briefly, in paragraph 64, the judge had accepted that this evidence was wholly reliable. It would be artificial to separate what the judge said in paragraph 64 from the evidence set out previously. It is clear that he had the relevant evidence well in mind.
17. The judge expressly used the term "careless" in paragraph 64, concluding that this was not a case in which the first Claimant had been deceitful or fraudulent. It is of note that the very same expression is used by the Court of Appeal in paragraph 35 of Balajigari when it stated in terms that carelessness was not sufficient in paragraph 322(5) cases: dishonesty must be shown. Therefore, whilst Balajigari post-dated the judge's decision, what is said there lends support to the judge's conclusion. In short, the judge directed himself correctly.
18. Contrary to what is said in the grounds of appeal, it is manifestly the case that the judge considered the paragraph 322(5) issue and the evidence pertaining thereto. There has been no identifiable reasons challenge, and perversity is expressly disavowed. The judge believed the first Claimant and was entitled to do so. That was sufficient for the judge to reach the sustainable conclusion that the first Claimant had not been dishonest and that paragraph 322(5) did not apply.
19. At the conclusion of my oral error of law decision, Ms Everett considered her position and formally withdrew her application to amend the Secretary of State's grounds of appeal. In these circumstances it was of course unnecessary for me make any decision on this issue.
20. My error of law decision and Ms Everett's withdrawal of her application has the following effects. First, the decision of the First-tier Tribunal stands in its entirety. Second, the first Claimant has never acted dishonestly in respect of his dealings with the Secretary of State and HMRC. Third, and following on from the preceding point, the basis upon which the first Claimant's 2015 application for indefinite leave to remain was refused has been shown to be erroneous. In this regard, there might appear to be an analogy with the solution canvassed by the Court of Appeal in the first particular of paragraph 120 of Ahsan [2018] Imm AR 531 (in the context of the ETS issue):
"120. The starting-point is that it seems to me clear that if on a human rights appeal an appellant were found not to have cheated, which inevitably means that the section 10 decision had been wrong, the Secretary of State would be obliged to deal with him or her thereafter so far as possible as if that error had not been made, i.e. as if their leave to remain had not been invalidated. In a straightforward case, for example, she could and should make a fresh grant of leave to remain equivalent to that which had been invalidated."
21. Whilst the question of the leave granted to the first Claimant as a result of my decision is a matter for the Secretary of State, I would expect that what I have said in the preceding paragraph is taken fully into account.

Anonymity
22. No anonymity direction is made.

Notice of Decision
The decision of the First-tier Tribunal does not contain errors of law and it shall stand
The Secretary of State's appeal to the Upper Tribunal is dismissed.

Signed Date: 8 July 2019
Upper Tribunal Judge Norton-Taylor