Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001394
IA/00814/2021; HU/50408/2020

THE IMMIGRATION ACTS

Decided without an
Decision & Reasons Promulgated
oral hearing under rule 34
On the 03 May 2022

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

MARGARET CHINYERE OBIAHUBA
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DECISION AND REASONS

1. Both parties replied to the directions made by the Upper Tribunal on 23 February 2022 (annexed).

2. The respondent’s representative does not concede all the matters raised in the grounds of appeal, but accepts that the First-tier Tribunal decision involved the making of an error of law in relation to the assessment of paragraph 276ADE(1)(iii) for the reasons given in the rule 24 response. The respondent also accepts that the appellant has lived in the UK for a continuous period of 20 years. The respondent agrees that the appeal can be determined without a hearing and that the Upper Tribunal would be entitled to allow the appeal on the basis suggested at paragraph 7(ii) of the directions.

3. The appellant’s representative ask for her appeal to be allowed with reference to paragraph 276ADE(1)(iii) in light of the concession made in the rule 24 response. I find that it is reasonable to infer from their silence in response to the other directions that they do not object to the appeal being determined without a hearing and do not seek to pursue any of the other grounds of appeal based on the appellant’s family life.

4. For the reasons outlined in the attached directions, the First-tier Tribunal decision involved the making of an error of law. The decision is set aside.

5. It is accepted that the appellant has lived in the UK for a continuous period of 20 years and would meet the private life requirements of paragraph 276ADE(1)(iii) of the immigration rules if she made an application at the date of the hearing: see OA & Others (human rights; ‘new matter’; s.120) Nigeria [2019] UKUT 65. The immigration rules are said to reflect the respondent’s view as to where a fair balance should be struck for the purpose of Article 8 of the European Convention.

6. The removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law

The appeal is ALLOWED on human rights grounds

Signed M. Canavan Date 22 March 2022
Upper Tribunal Judge Canavan

________________________________________________________________________________
NOTIFICATION OF APPEAL RIGHTS
1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:
2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).
3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).
4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).
5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.
6. The date when the decision is “sent’ is that appearing on the covering letter or covering email.
Annex

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001394
HU/50408/2020

THE IMMIGRATION ACTS

Between

MARGARET CHINYERE OBIAHUBA
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DIRECTIONS

1. The appellant appealed the respondent’s decision dated 19 August 2020 to refuse a human rights claim made in the context of an application for leave to remain as a partner.

2. First-tier Tribunal Judge Hoffman (‘the judge’) dismissed the appeal in a decision promulgated on 21 November 2021. Having considered the evidence, the judge accepted that the appellant had been resident in the UK since 2000, but concluded that the eight month sentence, and four month period served, ‘re-set the clock’ for the purpose of assessing whether she met the requirements of paragraph 276ADE(1)(iii) of the immigration rules. The judge referred to paragraph 276A(a)(iv) to support this finding, which applies to the interpretation of paragraph 276ADE(1). However, the judge did not appear to have regard to paragraph 276A(c), which states that the term has ‘lived continuously’ means ‘continuous residence’ ‘except that paragraph 276A(a)(iv) shall not apply’ [emphasis added].

3. The appellant appealed the decision on the ground that the judge erred in his assessment of 20 years’ continuous residence. The ground referred to the respondent’s policy guidance ‘Family life (as a partner or parent), private life and exceptional circumstances’. It states that time spent in prison will not count towards the continuous period of residence, but time before and after imprisonment can be aggregated towards the full amount of time. The grounds also argued that the judge made unreasonable findings relating to paragraph EX.1 of Appendix FM and erred in his wider assessment of Article 8.

4. In response to the grant of permission the respondent filed a rule 24 response, which made the following concession:

‘The respondent accepts that the First-tier Tribunal Judge did materially err in law in finding that the period of imprisonment meant that the clock was ‘reset’ in respect of the Appellant’s continuous lawful residence, when in fact, by the date of the hearing, she had been in in the UK for in excess of 20 years.’

5. The rule 24 response would appear to accept that the First-tier Tribunal decision involved the making of an error of law in relation to paragraph 276ADE(1)(iii) of the immigration rules, and that based on the findings of the First-tier Tribunal, the appellant has been continuously resident within the meaning of the immigration rules for a period in excess of the 20 years required.

6. In light of this concession, the Upper Tribunal has considered whether it is possible to determine the error of law aspect of the appeal without further submissions from the parties or an oral hearing. However, in view of the fact that the original application was to remain in the UK as a partner, and there are other grounds of appeal that have not been conceded, it is necessary to invite submissions from the parties on disposal. In doing so, the Upper Tribunal observes that whether the appellant succeeded under paragraph 276ADE(1) or paragraph EX.1 is not likely to make a material difference to the length of leave granted.

DIRECTIONS

7. The respondent shall make written submissions within 21 days of the date these directions are sent in relation to:

(i) the appropriate method of disposal in relation to error of law i.e. whether an oral hearing is required or the appeal can be determined on the papers;

(ii) whether the concession made in the rule 24 response means that the decision can be remade and the appeal allowed under Article 8, with reference to paragraph 276ADE(1)(iii) of the immigration rules, taking into account the decision in OA & Others (human rights; ‘new matter’; s.120) Nigeria [2019] UKUT 65; and

(iii) any other submissions considered necessary to assist the Upper Tribunal with case management.

8. The appellant may make any written submissions on the issue of disposal, if considered necessary, within 7 days of the respondent’s response.

9. The Upper Tribunal will review the case following receipt of the responses to these directions and will either determine the appeal or make any further directions considered necessary.

10. Liberty to apply.

Signed M.Canavan Date 23 February 2022
Upper Tribunal Judge Canavan