Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00684/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 January 2017
On 2 February 2017

Before

DUPTY UPPER TRIBUNAL JUDGE MONSON

Between

Mr yusuf giwa palasa
(anonymity direction not made)
Appellant
and

Secretary of state for the home department
Respondent

Representation:
For the Appellant: Mr R Sharma,
Counsel instructed by Farani Javid Taylor Solicitors LLP
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, who is a national of Nigeria, appeals from the decision of the First-tier Tribunal (Judge Reid sitting at Taylor House on 28 June 2016) dismissing his appeal against the decision of the Secretary of State to refuse to grant him leave to remain on the ground that he had accrued 20 years' continuous unlawful residence in the United Kingdom at the date of application. The First-tier Tribunal did not make an anonymity direction, and I do not consider that the appellant requires anonymity for these proceedings in the Upper Tribunal.
2. The appellant was born in Nigeria on 5 March 1976. He says that he arrived in the UK on 31 January 1996. In 2012 he lost an appeal against a decision to refuse him indefinite leave to remain on the grounds of fourteen years' continuous unlawful residence. On 28 March 2013 he applied for indefinite leave to remain in the UK outside the Immigration Rules. The application was refused on 9 December 2013.
3. There was a lengthy delay before the appellant's appeal eventually came before Judge Reid in the summer of 2016. The delay is accounted for by proceedings for judicial review, followed by a successful error of law challenge by the SSHD in respect of an earlier decision of the First-tier Tribunal in the appellant's favour. The appellant's appeal came before Judge Reid by way of a remittal to the First-tier Tribunal for a fresh hearing, with none of the findings of fact made by the previous First-tier Tribunal being preserved.
4. By the time the appeal came before Judge Reid for a fresh hearing, over 20 years had elapsed since the appellant's disputed date of entry into the UK. A statement of additional grounds of appeal was served on 25 May 2016. The additional grounds were that, as the appellant had arrived on 31 January 1996, he had now accrued 20 years' residence in the UK so that Rule 276ADE(1)(iii) now applied. The appellant's solicitors invited the respondent to withdraw her decision in the light of the appellant's material change in circumstances. But this did not happen.
The Hearing Before and the Decision of the First-tier Tribunal
5. At the hearing before Judge Reid, there was no appearance on behalf of the SSHD. The appellant was represented by Mr Balroop of Counsel.
6. In his subsequent decision, the Judge held at paragraph [24] that a BT bill in the appellant's name dated 22 July 1996 was the earliest documentary evidence that the appellant was in the UK. It established that the appellant was in the UK at about that date, but it did not show when he had actually arrived in the UK.
7. In paragraphs [25]-[27] the Judge discussed at some length the evidence bearing upon the question of when the appellant had actually arrived in the UK. He reached the following conclusion at paragraph [28] of his decision:
"I therefore find, taking into account the findings set out above, that the appellant is unreliable as regards when he says things happened or what he says happened, which casts doubt on whether he is to be believed when it comes to establishing the start of his residence between the claimed arrival date of 31 January 1996 and 21 July 1996, which is relevant to whether he had acquired 20 years' residence by the time of this hearing on 28 June 2016, although I note it is a very close run thing. Given the burden of proof is on the appellant to establish the start date of his residence in the UK, given he has ample time to do so knowing its importance, and given that he has not produced evidence from other sources on this issue (see also 2012 decision para 24) I therefore conclude that the appellant does not show that he has established 20 years' residence in the UK as at the date of this hearing because he has not established a start date before 21 July 1996."
The Application for Permission to Appeal
8. The appellant applied for permission to appeal to the Upper Tribunal, relying on two asserted errors. Ground 1 was that there was a clear conflict within the Judge's own deductions from the evidence. Ground 2 was that the Judge had erred in law in not recognising that the effective date of application for the assessment of Rule 276ADE(1)(iii) was when the appellant "raised compliance with this Rule" in his section 120 notice. This was when the application was varied, applying Qureshi (Tier 4 - effect of variation - App C) Pakistan 2011 UKUT 412 and AS (Afghanistan) v SSHD [2009] EWA Civ 1076.
The Reasons for the Initial Refusal of Permission
9. On 3 November 2016 First-tier Tribunal Judge Caroline Andrew refused the appellant permission to appeal. The case of Qureshi was clear: there was no restriction under section 3C(5) on the number of occasions an application for variation of the original application could be made, provided notice of variation was given prior to the respondent's decision, as thereafter there would be no application pending. So there was no arguable error of law in the decision.
The Reviewed Application for Permission to Appeal to the Upper Tribunal
10. Mr Sharma settled the renewed application for permission to appeal to the Upper Tribunal.
11. Ground 1 was that the Judge had erred in law in his assessment of the relevant application date in paragraphs [28]-[30] of his decision. The Rule required residence to have been accrued at the date of application. But this particular provision was incompatible with primary legislation, which required the Tribunal to consider matters appertaining at the date of the appeal in human rights matters. Mr Sharma relied on AS (Afghanistan) v SSHD [2009] EWCA Civ 1076 and sought to distinguish Qureshi on the facts.
12. Ground 2 was that the Judge had made a finding that was internally inconsistent. The finding that the appellant had not established an entry date before 21 July 1996 was thereby flawed. On balance it was more likely than not that the appellant had entered the UK at least before 28 June 1996, which was 20 years before the date of the hearing.
The Reasons for the Eventual Grant for Permission to Appeal
13. On 8 December 2016 Upper Tribunal Judge Coker granted the appellant permission to appeal, "on the grounds as pleaded".

The Error of Law Hearing
14. At the hearing before me to determine whether an error of law was made out, Mr Sharma developed the arguments advanced by him in the renewed application for permission to appeal. He accepted that the Judge was entitled to find that the appellant had not arrived in the UK on 31 January 1996. However the Judge ought to have asked himself whether, on balance, the appellant had arrived by 28 June 1996. He failed to apply the balance of probabilities test. The evidence of the father had not been taken into account.
Discussion
15. Although Mr Sharma reversed the grounds in his renewed application for permission to appeal, I find it convenient to deal with the grounds in their original order. For if the Judge did not err as alleged in Ground 1, Ground 2 becomes academic.
16. At paragraph [23] of his decision, the Judge accepted the oral evidence of the appellant's father that the appellant's name went on to the utility bills after the appellant arrived in the UK as the future plan was for the appellant to buy a property of his own.
17. At paragraph [25], the Judge found that the first bill, dated 22 July 1996, was a quarterly bill, from which he inferred that the appellant had asked to go onto that BT account at some point before that date. It was unlikely that he would have taken this step immediately on arrival in the UK, but there was no equivalent quarterly bill for earlier in the year. So he found that the July bill placed the appellant in the UK on 21 July 1996, as this was likely to be the last date on which he could have changed the bill-payer before that bill was issued.
18. At paragraph [26], the Judge held that there was no evidence of a claimed arrival date of 31 January 1996, and there was no new evidence presented at the hearing to show the appellant's alleged two years prior residence in Germany. So the appellant's arrival date could not be linked to a departure from Germany in January 1996.
19. At paragraph [27], the Judge referred to the evidence given by the appellant's father regarding when the appellant had arrived in the UK. He found that the appellant's father had not confirmed as correct at the hearing, or in his letter of support, the appellant's claimed arrival date of 31 January 1996, nor was the father able to estimate "a month of arrival".
20. The Judge held that the appellant had given a different account at the hearing as to the domestic situation when he arrived in the UK. He said his stepmother was still living at the property, whereas (it is implied) the appellant's father said that she had left the property. The appellant said he had had to move out from the property where he was residing with his father and stepmother in 2002 because his father was in the process of divorcing his wife. The Judge found this to be inconsistent, because the appellant would have had no need to move out from his father's house in 2002 due to his father's problems with his stepmother if she had already left the home in 1996. The Judge held that, despite the passage of time, the appellant and his father would be likely to remember who they were living with when the appellant arrived in the UK, yet they had given different accounts.
21. Accordingly, it is not true that the Judge reached his conclusion in paragraph [28] without taking into account the evidence given by the appellant's father.
22. The appellant's case was that he had arrived in the UK on 31 January 1996. The appellant did not assert in the alternative that he had arrived in June 1996. Having found the appellant not credible as to his claimed date of arrival, the Judge was under no obligation to speculate as to whether the appellant had arrived in the UK at some point between 31 January 1996 and 28 June 1996. Given his adverse credibility findings, the Judge was not bound to infer that the appellant had probably arrived on or before 28 June 1996. There was nothing inherently implausible in the proposition that the appellant had not arrived until early July or mid-July or 21 July 1996 at the latest. All of these scenarios were consistent with the next quarterly bill from BT being put into the appellant's name.
23. In short, I consider that the error of law challenge inherent in Ground 1 is no more than an expression of disagreement with findings that were reasonably open to the Judge on the evidence that was before him. Accordingly, Ground 2 is academic, and I express no view on it.

Notice of Decision
The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands. This appeal to the Upper Tribunal is dismissed.
I make no anonymity direction.

DUPTY UPPER TRIBUNAL JUDGE MONSON