Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05262/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 14 December 2016
On 16 January 2017

Before

UPPER TRIBUNAL JUDGE KEKI?

Between

SAFEER AHMAD
(anonymity order NOT made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DETERMINATION AND REASONS

Representation
For the Appellant: Mr P Haywood, Counsel, instructed by Gulbenkian Andonian Solicitors
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer

1. The appellant is a national of Pakistan born on 10 January 1983. He entered the UK as a Tier 4 migrant in October 2006 with leave for two years and in October 2011 was granted discretionary leave on the basis of his marriage to a British national until October 2014. The marriage appears to have broken down before the expiry of the appellant's period of leave but he did not disclose this to the Secretary of State; nor did he initially do so when he sought further leave. After seeking further information of the ongoing marriage from the appellant, it transpired that he had divorced his first wife in June 2014 after commencing another relationship in 2011-12. He sought to remain on the basis of his private and family life.

2. The application was refused on 26 January 2015 and the appellant appealed the decision. He did not attend the hearing of his appeal and the matter was decided on the papers by First-tier Tribunal Judge Plumptre who dismissed the appeal.

3. The appellant's challenge to the determination is that the respondent failed to consider the exercise of her discretion under the active review of her policy and the judge erred in her finding that the policy did not apply to the appellant because he had not claimed asylum.

4. At the hearing before me, Mr Haywood repeated that argument. He submitted that the policy did not just apply to those who claimed asylum and that even if the basis on which the initial grant of discretionary leave had changed, the respondent had a discretion to consider any other grounds put forward. He argued that the judge should have remitted the appeal to the Secretary of State to consider the other matters raised.

5. Mr Armstrong resisted that submission. He maintained that the issue of discretion was a matter for the respondent. The appellant had failed to attend the hearing before the First-tier Tribunal and the judge had to base her decision on the papers. The determination was well reasoned and nothing exceptional was apparent.

6. Mr Haywood responded. He maintained that having noted that the circumstances had changed, the respondent should have gone on to consider the other factors put forward.

7. Those were the submissions. At the conclusion of the hearing I reserved my determination which I now give.

8. Findings and conclusions

9. I have considered the submissions with care. I accept entirely that the discretionary leave policy applied to the appellant even though he did not claim asylum. When undertaking an active review, the policy states the purpose to be to determine whether a person continues to qualify for leave to remain or for leave on some other basis at the date of the review.

10. It is the appellant's case that the respondent only considered whether he qualified for leave on the basis of the original grant of leave. However, the decision letter makes it plain that all the other matters put forward were considered by the respondent. The respondent considered the rules, she considered whether the appellant qualified as a partner or on private life grounds and she also considered whether his circumstances warranted leave outside the rules (i.e. on a discretionary basis) as is plain from page 3 of the decision letter. Mr Haywood did not point to any specific matters which had been overlooked.

11. The application made by the appellant was in rather general terms and the respondent considered the matters put to her. I am satisfied that the policy, the rules and discretion were taken into account before a decision was reached. As such, the judge's mistaken belief that the policy (which was not included in the bundle before the Tribunal) only applied to asylum seekers is immaterial. On the available evidence, no other outcome would have been possible and, therefore, the determination shall stand. It is, of course, open to the appellant to make an application to the respondent based on his new relationship.

12. Decision

13. The judge made no errors of law and the decision stands. The appellant's appeal is dismissed.

Signed

Upper Tribunal Judge Keki?

Date: 20 December 2016