Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01913/2020
HU/50738/2020 (UI-2021-001320)

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 26th April 2022
On the 23rd June 2022

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

sushil sitaula
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms J Victor-Mazeli, instructed by Capital One Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Nepal, born on 12 October 1990. He has been given permission to appeal against the decision of First-tier Tribunal Judge Young-Harry, dismissing his appeal against the respondent’s decision to refuse his application for leave to remain on human rights grounds.

2. The appellant entered the United Kingdom on 19 September 2009 with leave to enter as a student valid until 31 October 2010. He was granted successive periods of leave to remain as a Tier 4 (General) Student Migrant until 27 September 2016. Before his leave expired, he made applications to universities in the UK but was unsuccessful and therefore had no option but to leave the UK. He left the UK on 25 October 2016 and returned to Nepal. From there he managed to obtain a place at university in mid-December 2016 and on 9 January 2017 he applied for a student visa for the UK. He was granted entry clearance as a Tier 4 student on 19 January 2017, with leave valid until 1 August 2020, and he re-entered the UK on 26 January 2017. According to the information provided in the respondent’s appeal bundle several notices of curtailment were served on the appellant which were challenged by way of judicial review proceedings, but it seems that ultimately there was no valid curtailment of leave. On 28 July 2020 the appellant applied for indefinite leave to remain in the UK on the basis of ten years’ continuous lawful residence.

3. The appellant’s application for indefinite leave to remain was refused on 24 October 2020. In refusing the application the respondent noted that the appellant had left the UK 28 days after his lawful leave to remain had expired and that his application for entry clearance to re-enter the UK was 104 days after his previous leave to remain expired. The respondent considered that the appellant’s continuous residence was therefore broken as he had failed to apply for entry clearance within 28 days of his leave expiring and had not held a period of 10 years’ continuous lawful residence so as to satisfy the requirements of paragraph 276B(i)(a) of the immigration rules. His application was therefore refused under paragraph 276D with reference to paragraph 276B(i)(a) of the immigration rules. The respondent went on to consider whether the appellant’s circumstances warranted a period of leave to remain on the basis of his family or private life. The respondent considered that the appellant was not eligible to apply as a partner under Appendix FM as his partner was not British or settled in the UK and had an outstanding application for limited leave to remain on Article 8 grounds. As for the appellant’s private life, the respondent considered that there were no very significant obstacles to integration in Nepal for the purposes of paragraph 276ADE(1)(vi) and no exceptional circumstances rendering refusal a breach of Article 8 on the basis of unjustifiably harsh consequences.

4. The appellant appealed against that decision. In support of the appeal, it was submitted on his behalf in a skeleton argument that, in accordance with the Home Office Guidance on Long Residence version 16 of 28 October 2019, gaps in lawful residence of less than 28 days could be ignored when they occurred before 24 November 2016. Alternatively, it was submitted that the discretion in the guidance should be exercised in the appellant’s favour as there were factors beyond his control which led to the delay in applying for a visa to re-enter the UK and he was only able to secure a university place in mid-December 2016. It was submitted further that there were very significant obstacles to the appellant’s integration into Nepal as he had lost ties with his family due to religious differences and considered the UK as his only home. Finally, it was submitted that there were in any event exceptional circumstances which would render his removal a breach of Article 8 as he would be separated from his wife and the gaps in his lawful residence were due to factors outside of his control.

5. In a respondent’s review submitted for the appeal it was submitted by the respondent that the appellant could not succeed under paragraph 276B of the immigration rules as he had no existing leave when he departed from the UK. There were no very significant obstacles to his integration in Nepal and no exceptional circumstances rendering the decision a breach of Article 8.

6. The appellant’s appeal was heard on 30 July 2021 by First-tier Tribunal Judge Young-Harry. The judge found that Article 8 was engaged on private life grounds and that the respondent’s decision interfered with the appellant’s private life. She found, however, that the interference was proportionate. The judge found that the appellant’s period of overstaying could not be disregarded as his application for entry clearance was made outside the relevant 28-day period and he had left the UK without any leave. He had therefore failed to show that he had attained 10 years of continuous lawful residence in the UK. The judge found further that there were no very significant obstacles to the appellant’s integration in Nepal, noting that he had returned there on two occasions since coming to the UK in 2009 which suggested that he retained connections to his home country. Even if he was not on good terms with his parents, he was capable of resettling without their help. The judge considered that if the appellant’s wife’s application for leave was successful, he could apply to join her in the UK and if she was unsuccessful, she could return to Nepal to join him. The refusal would not lead to unjustifiably harsh consequences and the decision was not disproportionate. The judge accordingly dismissed the appeal on Article 8 human rights grounds.

7. The appellant then sought, but was refused, permission to appeal by the First-tier Tribunal. However, permission was subsequently granted in a renewed application made to the Upper Tribunal on the grounds that the judge had failed to have regard to the compelling and exceptional circumstances in this case and to the wide discretionary power available to the respondent, as reflected in her guidance, to overlook the gap in his continuous leave. It was asserted that the appellant fell within the exception set out in the guidance on applications for overstayers as there were compelling circumstances and the reason for the overstaying was outside the appellant’s control, namely his inability to obtain a CAS sooner.

8. The matter was then listed for hearing and came before me.

9. Ms Victor-Mazeli raised three grounds of challenge. She submitted firstly that the judge had failed to conduct a proper proportionality balancing exercise as she had failed to give sufficient weight to the fact that the appellant had done all that he could to obtain a CAS. She relied upon the Home Office guidance on ‘Applications from overstayers’, version 8.0 of 5 August 2019 which referred to periods of overstaying being disregarded where was a good reason beyond the applicant’s control, as set out in paragraph 39E of the immigration rules, and which gave as an example circumstances where an educational institution was not prompt in issuing a CAS. She submitted that the judge had failed to give that any consideration and as a result her decision was flawed. Secondly, Ms Victor-Mazeli submitted that the judge had given insufficient weight to the fact that the appellant had a partner in the UK awaiting a decision on an outstanding application for leave to remain. Thirdly, she submitted that the judge had failed to give consideration to the appellant’s claim to be on bad terms with his family, when considering whether there were very significant obstacles to integration in Nepal.

10. Mr Tufan, in response, submitted that there was no dispute that the appellant could not succeed under paragraph 276B on the basis of 10 years’ continuous lawful residence. With regard to the guidance, the fact that the appellant had difficulties obtaining a CAS was an issue between him and the institutions to which he had applied and could not be said to amount to compelling circumstances. The relevance guidance was the Long Residence guidance and not the overstayers guidance. The judge had considered the appellant’s claim not to be on good terms with his parents but had properly concluded that there were no very significant obstacles to integration. The judge had not focussed on the appellant’s relationship, since nothing of substance had been submitted in that regard. The judge had given proper regard to the factors in section 117B of the Nationality, Immigration and Asylum Act 2002. The decision should be upheld.

11. Ms Victor-Mazeli reiterated the points previously made by way of a response.

Consideration and Findings

12. It was not Ms Victor-Mazeli’s submission that the appellant could meet the requirements of paragraph 276B on the basis of 10 years’ continuous long residence, and that was rightly so. Clearly the judge was correct in concluding that the appellant could not meet the requirements of paragraph 276B since he had no existing leave when he departed from the UK and had applied for entry clearance after 28 days of his previous leave expiring.

13. The submission was rather that discretion ought to have been exercised in the appellant’s favour on the basis of the Home Office guidance on overstayers. It is submitted that the judge erred by failing to consider, and give weight to, the Home Office guidance on overstayers with reference to paragraph 39E of the immigration rules, whereby periods of overstaying could be disregarded where there was “a good reason beyond the control of the applicant”. The appellant’s case is that the delay caused by the difficulty in obtaining a CAS was a matter which was beyond his control.

14. However, the judge clearly did give consideration to the guidance in that regard, at [17] and [18] of her decision, and concluded at [20] that the appellant was unable to benefit from that exception or period of disregard because of his period of overstaying exceeding 28 days. Clearly that was correct.

15. In any event, it seems to me that even if the judge had considered whether there was a good reason beyond the appellant’s control for the purposes of the disregard exception the appellant could not possibly succeed on that basis. As Mr Tufan submitted, the matter was between the appellant and the institutions to which he had applied. It was not a question of the educational institution which had offered him a place delaying in issuing him with a CAS, as provided for by way of the examples in the overstayers guidance at page 7 of 10, rather it was a matter of him not having been accepted on to a course of study, for which there could have been a number of reasons. That was clearly beyond the scope of the guidance and could not be said to be a good reason for a period of overstaying to be disregarded. Neither could it be said to be a compelling reason for the delay in applying for entry clearance. I therefore find no merit in the assertion that the judge failed to give weight to any benefit the appellant derived from the guidance, whether the overstayers guidance or the long residence guidance.

16. It is relevant to note in any event that the judge did, nevertheless, take account of the fact that the appellant did all he could to secure a place at university, at [22] of her decision, and she therefore did consider the matter as part of her proportionality assessment. She was perfectly entitled to accord that matter the weight that she did, particularly given the limited nature of the documentary evidence before her.

17. As for the assertion that the judge failed to consider the fact that the appellant had a partner in the UK who was awaiting the outcome of an application for leave to remain, that is not correct because it was a matter she specifically considered at [28]. Her findings in that regard were cogently reasoned and properly open to her. Likewise, the judge had full regard to the appellant’s claim, when considering very significant obstacles to integration under paragraph 276ADE(1)(vi), to be on bad terms with his parents and to be unable to call on them for support. That was a matter she considered at [25] and she was fully and properly entitled to conclude that the appellant would be able to resettle in Nepal without their help. For the reasons cogently given at [23] to [25] the judge was fully entitled to conclude that there were no very significant obstacles to the appellant’s integration in Nepal.

18. Having found, for reasons properly given, that the appellant could not meet the requirements of the immigration rules, either on long residence grounds or on human rights grounds, the judge went on to consider Article 8 outside the rules and had regard to the factors in section 117B of the NIAA 2002. It is plain, therefore, that the judge had detailed and careful regard to all relevant matters when making a decision in the appellant’s case. She took full account of his circumstances in the UK and in Nepal and considered those in the context of the applicable guidance and legal framework. She was perfectly entitled to reach the decision that she did on the evidence before her.

19. For all of these reasons I find no merit in the grounds and I uphold the decision of the First-tier Tribunal.

DECISION

20. The making of the decision of the First-tier Tribunal did not involve an error on a point of law requiring it to be set aside. The decision to dismiss the appeal stands.

Signed S Kebede
Upper Tribunal Judge Kebede Dated: 27 April 2022