Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10549/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 25 January 2017
On 14 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MAHMUD H T MOHAMED
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mrs Pettersen, Senior Home Office Presenting Officer
For the Respondent: Miss Brooksbank, Simpson Millar, Solicitors LLP

DECISION AND REASONS
1. I shall refer to the respondent as the appellant and the appellant as the respondent (as they appeared respectively before the First-tier Tribunal). The appellant, Mahmud Mohamed was born on 12 June 1975 and is a male citizen of Libya. He entered the United Kingdom on 7 November 2000 as a student. On 19 May 2015, he made an in-time application on the basis of ten years continuous lawful residence but that application was refused by a decision of the respondent dated 22 October 2015. The appellant appealed to the First-tier Tribunal (Judge M A Khan) which, in a decision promulgated on 22 August 2016 “allowed the appellant’s appeal to a limited extent, in order for the respondent to reconsider the matter, applying discretion.” The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. At the appeal hearing, I was given a copy of the Rule 24 response prepared by the appellant’s solicitors. This records that the solicitors were “somewhat in agreement with the Secretary of State to the limited extent that they acknowledge that the Immigration Judge had not reached a conclusive human rights decision.” Although the solicitors submitted that it was “open to the Upper Tribunal to infer from the determination that human rights were considered” the appellant accepts that it is “more likely the Upper Tribunal will find that there is an error of law within this determination.” The appellant’s solicitors are correct to have misgivings regarding Judge Khan’s decision. Sections 82 and 84 of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014) provide that an appeal must be made on human rights grounds and that the ability of the First-tier Tribunal to allow an appeal on the basis that a decision is not in accordance with the law no longer exists. Judge Khan had, therefore, no power to allow the appeal to the limited extent that the matter be remitted to the Secretary of State. In the circumstances, I set aside the First-tier Tribunal’s decision and have remade the decision.
3. The refusal letter of the respondent dated 23 October 2015 extensively sets out the reasons why the appellant failed to meet the provisions of the Immigration Rules either as to ten years’ continuous lawful residence or under the parent or partner routes. As I have noted above, the appellant was only able to appeal the decision on human rights grounds; the inability or ability of the appellant to meet the requirements of the Immigration Rules may now only be relevant in the analysis of the appeal on Article 8 ECHR grounds.
4. The appellant relies upon AG (Policies: Executive Discretions: Tribunal Powers) Kosovo [2007] UKAIT 00082. The appellant claims that a policy was in place which is relevant (namely, “Long Residence” published by the Home Office on 8 May 2015). That policy deals with the changes brought about to the Immigration Rules and affecting applications made on or after 9 July 2012. The appellant had applied for leave to remain on the basis of ten years continuous lawful residence under paragraphs 276A-276D of HC 395. The appellant asserts that his ability to meet the requirements of the policy should be a consideration in the assessment of the appeal on Article 8 ECHR grounds.
5. Following the withdrawal of an appeal against the refusal of a decision to switch categories (into a Tier 1 (Entrepreneur) category in-country) the appellant and his family left the United Kingdom on 1 June 2014. The appellant’s previous leave to remain had ended more than 28 days prior to that date and the appellant had been appeals right exhausted on 14 April 2014. Whilst in the United Kingdom, the appellant had made an application on 19 May 2014 for entry clearance although this application was still made in excess of 28 days after his appeals rights had become exhausted. As the refusal letter notes, “This initiated events which led to you becoming an overstayer and breaking your continuous lawful residence in the UK. With this in mind, it is considered not appropriate to exercise discretion in your circumstances.” The application was refused under paragraph 276D with reference to 276B(i)(a) and (v). A copy of the respondent’s policy “long residence” which I had before me shows that the assessment made by the author of the refusal letter is accurate. Continuous residence is considered to be broken the applicant did not have further leave to remain on departure from the United Kingdom (pages 13 and 54). Likewise, continuous residence is not considered broken if an applicant “departed the UK after expiry of their leave to remain and applied for French entry clearance within 28 days of that previous leave expiring.” The appellant failed to do that, as the refusal letter points out. Likewise, the appellant did not have valid leave to remain on his departure from the United Kingdom. If follows that the policy in respect of long residence does not apply to the appellant since he was unable to show that he had enjoyed the requisite period of continuous residence.
6. With that in mind, I have gone on to consider the remainder of the appeal on Article 8 ECHR grounds. The appellant does not appear to challenge the refusal under the Immigration Rules; the ability or inability of the appellant to satisfy those Rules may yet be a relevant factor in assessing the appeal under Article 8. Further, Miss Brooksbank in her oral submissions based on the Rule 24 response raised a number of matters which the appellant claims should operate in his favour in the Article 8 analysis. It is relevant in this appeal that at all times in the proceedings before the First-tier Tribunal and the Upper Tribunal, the appellant and his family have enjoyed extant leave to remain in the United Kingdom. Indeed, their leave shall not expire until 16 October 2017. It is against the background of that fact that the appellant’s submissions on Article 8 need to be considered. The appellant submits a grant of indefinite leave to remain now should enable the appellant’s children to be registered as British citizens (they were all born in the United Kingdom and their father will be regarded as settled here for the purposes of such an application). This would “provide him with all the rights and entitlements” of British citizens including a right to continue to live here. The current precarious immigration status of the children would thereby be removed. Further, it is stated in the Rule 24 response that:
While the respondent has always satisfied the Immigration Rules and runs a successful business as a Tier 1 (Entrepreneur) his status lacks the certainty that indefinite leave to remain would provide. The status under Tier 1 of a points-based system imposes rigorous conditions and restrictions on his stay in the United Kingdom. For example, he cannot currently choose to move from self-employment into employment. Any employment he undertakes must be only supplemental to his business activities. By way of further example he cannot run his business with complete freedom as he must ensure that he continues to meet the requirements of the Immigration Rules. One such requirement is that he employs a specified number of British nationals. This may influence the investment or the decisions which he was able to take and it was this control and decision making power of his own business.
7. This submission is novel but, in my opinion, misguided. I accept the submission of Mrs Pettersen, for the respondent, that the conditions imposed upon the appellant by virtue of his entrepreneur visa are not so onerous as to breach his or any member of his family’s rights under Article 8 ECHR. Further, if the appellant is right, any individual who has secured entry clearance to the United Kingdom would, immediately after entry, be in a position to obtain indefinite leave to remain on human rights grounds on account of the fact that their visa imposes conditions upon them whilst in the United Kingdom. Frankly, that makes no sense given the patent right of the executive to regulate the residence of non-citizens living in the United Kingdom. Further, the appellant’s application is, at best, premature. He is, in effect, seeking to “switch” from the category of an entrepreneur with entry clearance to settled status under Article 8 ECHR simply on the basis that he resents some of the conditions imposed by his entrepreneur visa. It is open to the appellant to make an application in anticipation of the cessation of his current visa status in October 2017 with a view to establishing a new status in whatever category may appear appropriate. I cannot see that there is any breach of his Article 8 rights if the respondent refuses to permit a change of status now whilst he and his family continue to enjoy leave to remain. Considering the public interest concerned with maintaining a proper system of immigration control and considering also that the appellant cannot take advantage of any Home Office policy, it follows that his Article 8 appeal should be dismissed. Likewise, as regard to Section 55 of the Borders, Citizenship and Immigration Act 2009 it would be in the best interests of the children to remain (as the refusal letter puts it) “with their parents as a family unit.” There is no evidence that the appellant would be unable to maintain the children in Libya or would be unable to provide for their safety and welfare. Indeed, that has not been argued by the appellant before the Upper Tribunal. In all the circumstances, I find that the appeal should be dismissed.

Notice of Decision
The decision of the First-tier Tribunal which was promulgated on 22 August 2016 is set aside. I have remade the decision. The appeal against the decision of the respondent dated 23 October 2015 is dismissed.
No anonymity direction is made.

Signed Date 13 March 2017
Upper Tribunal Judge Clive Lane

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 13 March 2017
Upper Tribunal Judge Clive Lane