Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA 00929 2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 18 June 2013
On 27 June 2013

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

UCHENNA GIFT CHIOMA ODEDO
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr D Adams, Counsel instructed by Verdant Solicitors
For the Respondent: Miss Z Kiss, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is an appeal by a citizen of Nigeria against the decision of the First-tier Tribunal dismissing her appeal against the decision of the respondent refusing her leave to remain in the United Kingdom as a Tier 5 temporary worker.
2. This is a case that illustrates the deliberately inflexible nature of the Immigration Rules. The application was refused because the appellant had not shown in the required way that she had the required funds. In particular she had not shown that she had the required funds for the required period of time in an account in her name.
3. The appellant produced a great deal of evidence to show that money was available to her. This showed that there were members of her family with access to the funds of a family business or similar sources that could have provided for her financially. I make no finding on this evidence because that is not my function. The fact that the appellant might have been supported financially is irrelevant because that is not a requirement of the Rules.
4. The Rules are deliberately drawn in a way that ensures that it is easy to make a decision rather than requiring a decision maker to look through what may be a large volume of material from a culture which is not always necessarily understood and then having to make a value judgment about the reliability of the evidence presented.
5. The Rules require the appellant to produce her evidence in a very specific, well understood way. This appellant did not comply with these requirements and her application was refused.
6. Mr Adams, who has done his very best for her with very limited material, had to concede that the appellant did not meet the requirements of the Rules.
7. The appellant appealed. There is no indication that she took proper professional advice at an early stage although there was a suggestion that she was advised by someone on whom she thought that she could rely. The appeal was decided without a hearing and although there was much in the material before the First-tier Tribunal alleging that the appellant could have found financial support, there was no attempt to show that she met the requirements of the Rules, which she did not.
8. The First-tier Tribunal Judge had no alternative but to dismiss the appeal under the Rules.
9. The appellant had not raised a ground of appeal relying on human rights. Nevertheless the First-tier Tribunal Judge was alert to the possibility that the decision would lead to an unlawful interference with her private and family life and asked himself if it had been shown that the decision was contrary to the United Kingdom’s obligations to the European Convention on Human Rights. On the very skimpy material before him he concluded that it was not and I do not see how he could have done anything else on the evidence produced.
10. The grounds of appeal allege, in effect, that removing the appellant would waste the considerable resources, both financial and emotional, that had been invested in her training as a pharmacist in the United Kingdom. She says that she needs to complete a period of post-work training and an examination which she will sit no later than November of this year in order to be a properly qualified pharmacist. It may be that these concerns influenced the Designated First-tier Tribunal Judge when he gave permission to appeal but there is nothing in the papers before the First-tier Tribunal when the decision was made that would support a finding that removal would interfere disproportionately with the appellant’s human rights.
11. It follows that I am entirely satisfied on the material there that the First-tier Tribunal made the only decision that could be made in the circumstances. The decision was right in law.
12. I am aware that that appellant now says this could have disastrous consequences for her. If that is so then that is very sad but it does not affect the legality of a procedure that requires people to comply with the rules in a very specific way. Basically she did not do as she was told to do and is complaining of the consequences.
13. The respondent has accepted that the First-tier Tribunal Judge did err in part. He did not show that he had appreciated that he had got two decisions before him: a decision to refuse leave under the Rules and a decision to remove the appellant. It is now settled law that the decision to remove the appellant was unlawful. The appeal against the decision to remove the appellant is allowed to the extent that the issue of the appellant’s removal remains to be decided. This means that if the Secretary of State wishes to remove the appellant a further decision has to be made.
14. There is nothing in this decision that in any way prevents the appellant applying for further leave to remain until November, which is what she says she needs, and that is something about which she can take advice. Nevertheless, it has been made perfectly clear to her today that there is no guarantee that such an application would be successful. I merely make the observation that there is nothing to stop her making it.
15. I have sat back and reflected a little on this because I do appreciate that if the appellant really will lose her chance of obtaining a professional qualification by reason of this decision then, from her perspective, this is a very vexing decision which, from her point of view, will seem out of all proportion to the evil of not complying strictly with the Rules. Her vexation is no doubt increased because, on her case, which, I stress, has not been tested, she had more than enough money available to meet her needs. That is precisely the kind of point the Rules are intended to avoid. The Rules are about strict procedures and they were not met.
16. There was nothing before the First-tier Tribunal that would have permitted him to allow the appeal on Article 8 grounds responsibly. This is an appeal that has to be dismissed except to the limited extent that I have I indicated.
17. Accordingly I find there is no material error of law in the First-tier Tribunal’s decision and I dismiss the appeal save to the extent indicated.
Decision
The appeal against the decision to remove the appellant is allowed to the extent that the respondent must make a fresh decision if she wants to remove the appellant.
Otherwise the appeal is dismissed.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 26 June 2013