Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11085/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 March 2017
On 07 April 2017

Before

THE HONOURABLE MR JUSTICE MITTING
DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

MUHAMMAD SOHAIB KHATTAK
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr I Hussain, Legal Representative
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a 36 year old national of Pakistan. He entered the United Kingdom on 18 August 2005 on a student visa valid until 29 December 2006. Thereafter, leave to remain was granted and periodically varied until 24 February 2013, initially as a student and on the last occasion under the post-study migrant scheme. On 22 February 2013 he applied for leave to remain as a T1 Highly Skilled Entrepreneur. That application was refused on 21 May 2013.
2. He appealed to the First-tier Tribunal which dismissed his appeal. He then appealed in time to the Upper Tribunal which found that an error of law had been made by the First-tier Tribunal, retook the decision and again dismissed his appeal. That decision was promulgated on 2 April 2014. The appellant’s representatives claim that they had not received the decision and so it was re-sent to them. They applied for permission to appeal and for an extension of time in which to appeal to the Court of Appeal. As the Rules require they made their application in the first instance to the Upper Tribunal. The grounds of application for an extension of time, which are undated, are brief.
“The appellants apply for extension of time in filing the permission to appeal on the following ground:
(1) The determination is dated 02 April 2014. The appellants or their solicitor did not receive the decision. The decision was received by the solicitors on 30 April 2014. Given the situation it would be in the interest of overriding object to grant extension of time in filing of this appeal”.
3. The application was considered by Judge Chalkley and on 9 June 2014 he refused to extend time and noted that there was no important point of principle or practice or other compelling reason for the Court of Appeal to consider the application. That decision was sent to the solicitors under cover of a letter of 17 June 2014 and would have been received at the latest two working days thereafter on 19 June.
4. The Home Office records then disclose that appeal rights became exhausted on 18 July 2014. That allowed for twenty working days between receipt of the decision to refuse to extend time in which to apply to the Court of Appeal for permission to appeal. We will return to the chronology in due course.
5. On 11 July 2015 the appellant made a second application for leave to remain as a Tier 1 Entrepreneur. That was treated as a nullity on 20 August 2015 and there was no appeal against that decision as there could not have been.
6. On 30 July 2015 the appellant applied for indefinite leave to remain on the basis of ten years’ lawful residency. His application was refused on 4 November 2015 on, amongst other grounds, the ground that he had had only eight years eleven months’ continual lawful residence which expired on 18 July 2014, in other words when he became appeal rights exhausted following his earlier appeal to the First-tier and Upper Tribunals.
7. The appellant appealed to the First-tier Tribunal. In a decision and reasons promulgated on 15 June 2016 First-tier Tribunal Judge Handley dismissed his appeal. He appeals with permission granted by Upper Tribunal Judge Jordan.
8. The appellant contended in his application to the Secretary of State and before the First-tier Tribunal that an application for permission to appeal to the Court of Appeal against the decision of the First-tier Tribunal extended his leave to remain under Section 3C(2)(c) of the Immigration Act 1971 which provides that limited leave to remain is extended during any period when an appeal against a decision to refuse to vary it is pending within the meaning of Section 104 of the Immigration and Asylum Act 2002. Section 104(1) provides that an appeal under Section 82(1) of the same Act is pending during the period beginning when it is instituted and ending when it is finally determined. Section 104(2) provides that an appeal is not finally determined while an application for permission to appeal is awaiting determination under Section 13 of the Tribunals, Courts and Enforcement Act 2007. Section 13 confers a right to appeal to the Court of Appeal with the permission of the Upper Tribunal or, if refused by the Upper Tribunal, of the Court of Appeal, see Section 13(2) and (3). Leave to appeal is however only extended if an appeal under Section 82(1) is brought in time, see Section 3C(2)(b) of the 1971 Act which provides:
“The leave is extended by virtue of this Section during any period when ...
(b) an appeal under Section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought while the appellant is in the United Kingdom against the decision on the application for variation ignoring any possibility of an appeal out of time with permission”.
9. On 16 December 2014 Lord Justice Laws adjourned an application for permission to appeal in a case headed “MA (Pakistan) v Secretary of State”. On 24 March 2015 he refused permission to appeal in the same case. The application was not renewed to an oral hearing. In an accompanying letter notifying the applicants in that case of the outcome of their application, the Civil Appeals Office on 13 April 2015 said the following “I enclose a copy of the order refusing permission to appeal and an extension of time”. The order of Lord Justice Laws dated 24 March 2015, which must have been the order enclosed, did not expressly refer to a refusal of an extension of time. Given that Lord Justice Laws was refusing permission to appeal because the point had been determined by a recent decision of the Court of Appeal, that was not surprising. However, the terms of the order do not establish one way or another whether an application for permission to appeal out of time had been made. The letter of the Civil Appeals Office however does, unless the contrary is established, show that an application for permission to appeal out of time must have been made. It therefore follows, if that is right, that there was no application for permission to appeal to the Court of Appeal in time and therefore that leave to remain was not extended by Section 3C(2)(b) of the 1971 Act.
10. When the issue came before Judge Handley he dealt with it in paragraphs 13 and 14 of his decision.
“13. It is submitted that an appeal brought in time extends statutory leave as does an application for permission to appeal and that the appellant had made an application to the Court of Appeal. The appellant has not enclosed a copy of the application to the Court of Appeal with the notice of appeal. Before me was a letter of 13 April 2015 from the Civil Appeals Office to Rana & Co Solicitors. This letter makes reference to a copy of an order refusing permission to appeal and an extension of time. This document was before me. There is no mention of the appellant in either the letter or the order and it is not clear to me whether these documents relate to an application by the appellant.
14. On the evidence before me I find that there were no outstanding appeals and no appeals awaiting determination. The appellant’s appeal rights were exhausted on 18 July 2014”.
11. On the information which he had Judge Handley was clearly entitled to come to that view. He simply found that the appellant had not proved that he had appealed to the Court of Appeal by making an application for permission to appeal to that court in time. It is true that the wording at paragraphs 13 and 14 suggest that he was not satisfied that the document referring to MA (Pakistan) had anything to do with this appellant. We have been shown the original application to the Upper Tribunal for permission to appeal in which the lead appellant is Muhammad Irfan Abbasi and this appellant is listed second. We are therefore minded to accept that the order of the Court of Appeal did relate to an application brought to the Court of Appeal by amongst others this appellant. However, that does not end the matter. It is for him to establish both before the First-tier Tribunal and when the point was expressly taken by the First-tier Tribunal Judge before us that an application for permission to appeal had indeed been made in time because if it was not made in time, for the reasons which we have explained, leave to remain cannot have been extended by statute. It would have been simple to produce the document, all that was required was a copy of the application for permission to appeal. We are told that the appellant himself does not know precisely when the application was made, saying that he believes that it was made sometime in July. We, like the First-tier Tribunal Judge, have no reason to doubt the statement in the immigration factual summary that appeal rights were exhausted on 18 July 2014. If they were exhausted on 18 July 2014, then the appellant cannot establish, even if this case were to be remitted to the First-tier Tribunal, that he has ten years’ lawful residence in the United Kingdom. For those reasons this appeal must be dismissed.

No anonymity direction is made.

Signed Date 4 April 2017

Mr Justice Mitting

TO THE RESPONDENT
FEE AWARD

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

Signed Date 4 April 2017

Mr Justice Mitting