Tribunal decisions

The decision

St

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/04535/2015
IA/04542/2015, IA/04551/2015
IA/04555/2015, IA/04558/2015

THE IMMIGRATION ACTS

At Field House
On 4th October 2016
Decision and Reasons Promulgated
On 22nd November 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MUHAMMAD [A]
FAIQ [T]
[Q T]
[A R]
[A M]
(NO ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

No application for anonymity was made and there is no apparent reason for anonymity.

Representation:
For the Appellant: Miss. R. Dulay, Counsel, instructed by Farani-Javid-Taylor Solicitors.
For the Respondent: Mr D. Clarke, Home Office Presenting Officer.
DECISION AND REASONS
Introduction
1. For convenience I will refer to the parties as they were named in the First tier Tribunal.
2. This is the appeal of the Secretary of State for the Home Department (hereinafter referred to as the respondent) against the decision of First-tier Tribunal Judge Isaacs who allowed the appeals under the immigration rules.
3. The first appellant came to the United Kingdom on 18 January 2008 as a work permit holder. His leave was valid until 26 November 2011. He was accompanied by his wife, the second appellant and their two children; a third child being born in United Kingdom. All are nationals of Pakistan and are dependant on the first appellant's appeal succeeding.
4. First-tier judge Isaacs recorded that in October 2011 the first appellant provided his employer with various documents intending that application could be made for an extension of his leave. The judge referred to a misunderstanding on the part of the employer as to when the leave expired the result of which was at the tier 2 application was made on 31 January 2012.
5. On 23 April 2012 the appellant was granted leave to remain as a Tier 2 migrant.
6. On 14 February 2013 the appellant and his family applied for settlement. This was covered by paragraph 245HF of the immigration rules, paragraph (c) of which required five years lawful residence. The application was refused on 15 February 2013 and the refusal was affirmed on reconsideration on 27 June 2013.
7. On 1 May 2013 the appellant made a further application for settlement. This was refused on 22 October 2013. An appeal against that decision was heard by First-tier Tribunal Judge Pullig on 3 July 2014 who referred the matter back to the respondent for consideration in light of a public policy. This any article 8 issues arising were also to be adjudicated upon. On 12 January 2015 the refusal was maintained. The matter then came before Judge of the First-tier Tribunal Isaacs.
The First tier Tribunal
8. At paragraph 26 of the decision First-tier Tribunal Judge Isaacs under the heading `Findings and conclusions' stated that it was agreed between the parties that the appellant was not at fault in the steps he took to extend his leave in October 2011. There was a reference to a combination of delay and confusion resulting in a break of more than 28 days of his lawful leave to remain.
9. First-tier Tribunal Judge Isaacs refers to the refusal letter of 12 January 2015 which deals with a referral back. The refusal letter states that the respondent took into account the fact that the break in lawful residence was not due to the fault of the appellant; that he and his family had lived almost exclusively in either the United Arab Emirates or the United Kingdom and regard was had to the welfare of their children as required under section 55. First-tier Tribunal Judge Isaacs concluded that the respondent had exercised her discretion.
10. First-tier Tribunal Judge Isaacs went on to consider the Home Office guidance v.12 in relation to the calculation of lawful residence. The judge referred to 3 sets of circumstances in the guidance where the decision maker can disregard application is made more than 28 days after the expiry of leave. The Judge summarises these as consisting of serious illness: travel or postal delays: and the inability to provide necessary documents. The judge stated that the list is exhaustive. However these third category, travel or postal delays, provides examples. The judge concluded that the list of examples was not exhaustive.
11. The judge went on to consider whether the first appellant situation came within the policy and concluded the delay from his leave expiring was due to circumstances beyond the appellant's control. The judge referred to the appellant providing documents to his employer in time and that it was for his employer to obtain a sponsor's license and thereby be in a position to issue a certificate of sponsorship. The judge found that the appellant did everything he was required to do in order to progress his application. This conclusion therefore was that he was unable to provide the necessary documents in circumstances beyond his control as referred to in the guidance.
12. Having reached this conclusion the judge then posed the question at paragraph 32 as to whether the judge was empowered to exercise discretion. The judge concluded that as the respondent had exercised her discretion it was open to the tribunal to then exercise discretion independently. The judge concluded that the circumstances arising were exceptional as set out in the policy and that he was entitled to the benefit of the policy and the break in continuity should be disregarded.
The Upper Tribunal
13. In seeking permission to appeal the respondent contended that First-tier Tribunal Judge Isaacs in allowing the appeal out right materially erred in law. This is because there was no discretion within the immigration rules in relation to the gap. The discretion was contained in a policy outside the rules. The respondent had already exercised her discretion following the referral by First-tier Tribunal Judge Pullig.
14. Permission to appeal was granted on the basis it was arguable that the judge was not entitled to allow the appeal under the immigration rules on a policy falling wholly outside the rules. Reference was made to the decision of DS Abdi-v- SSHD [1996] Imm AR. A
15. At hearing, Mr D. Clarke referred to the decision of AG and others (policies; executive discretion is; tribunal's powers) Kosovo [2007] UKAIT 00082 which held that in terms of a policy dependent on the exercise of discretion outside the rules the tribunal has no power to substitute its own decision. Miss. R. Dulay submitted that the decision should be upheld as First-tier Tribunal Judge Isaacs had concluded there was a discretion which could be exercised in the appellant favour.
Consideration
16. There is no dispute on the facts that the appellant came to the United Kingdom on 18 January 2008 with leave until 26 November 2011. His next leave for whatever reason was not granted until 23 April 2012. Consequently there was a period of 148 days when he and his family had no leave.
17. He has made application for settlement. This is covered by paragraph 245 HF of the immigration rules. Essentially, 245 HF (c) requires an applicant to have spent a continuous period of five years lawfully in the United Kingdom of which the most recent period must have been spent with leave as a Tier 2 migrant. The appellant cannot meet this rule because of the period when his residence was not lawful. The rule provides that if an applicant meets the requirements indefinite leave will be granted and if they do not, the application will be refused. There is no discretion within the rule. There is provision for disregarding an overstay of less than 28 days but this does not assist the appellant.
18. The respondent does have guidance for caseworkers as to the calculation of the five years. There is guidance as to the situation where serious or compelling reasons exist as to why the continuous residence has not occurred.
19. I have been provided with the decision of First-tier Tribunal Judge Pullig following the hearing on 15 January 2014 and 5 March 2014.The judge considered the appellant's explanation for the gap. At paragraph 47 of the decision the judge refers to the respondent's guidance. The judge concluded at paragraph 52 that the respondent had not considered the exercise of discretion and so the decision was not in accordance with the law. The matter was then referred back to the respondent. The matter was reconsidered and the refusal maintained.
20. At paragraph 27 of First-tier Tribunal Judge Isaacs decision it was confirmed that both parties accepted the respondent did exercise her discretion. The respondent's letter of 12 January 2015 sets out the factors taken into account.

Conclusion
21. It is my conclusion that the situation arising is covered by what was said in AG and others (policies; executive discretion is; tribunal's powers) Kosovo [2007] UKAIT 00082. The immigration rule sets out a clear requirement of five years continuous lawful residence. There is no discretion within the rule in relation to this. There is no dispute that this requirement is not met. The respondent has policy which gives guidance to caseworkers for the exercise of a limited discretion to cover exceptional circumstances. In the present instance that discretion has not been exercise in the appellant's favour. The tribunal has no power to substitute its own view for that of the decision maker in the exercise of the discretion. Consequently, First-tier judge Isaacs materially errs in law in purporting to do so. That decision cannot stand. I remake the decision was the only option being to dismiss the appeal under the immigration rules. No article 8 claim was pursued.

Decision.
The decision of First-tier judge Isaacs allowing the appeals materially errs in law and is set aside. The decision is remade dismissing the appeals.

Deputy Upper Tribunal Judge Farrelly