Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05473/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 4 October 2016
On 21 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

gurjeevan singh
(no anonymity order)
Appellant
and

SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Pipe, instructed by Super Immigration Services Ltd
For the Respondent: Ms H Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission of UT Judge Warr against the decision of FtT Judge Meyler that was promulgated on 17 July 2015.
2. After hearing from both representatives, I reached the following decision.
3. I am satisfied there is an element of unfairness in the way Judge Meyler determined the appeal. As is clear from paragraph 10 of her decision and reasons statement, at the hearing she agreed with the parties that the old 14-year long residence immigration rules applied. Therefore, the parties presented their cases on that basis. It would appear from the second half of paragraph 10 that after the hearing Judge Meyler changed her mind and thought that she had to consider paragraph 276ADE of the rules. Whether or not she was right to do so is immaterial because by moving the goalposts she failed to give the parties an opportunity to engage with the issues she was going to determine.
4. Having found there is legal error in the decision, I discussed with the parties whether the error affected the outcome. Ms Aboni did not seek to argue that the unfairness altered the respondent's position even though the presenting officer, Ms Hussain, should not have conceded the legal points in the way she did.
5. Mr Pipe did not argue that different arguments would have been presented. He sought to pursue the arguments presented before Judge Meyler in relation to what immigration rules applied.
6. As indicated in the grounds of appeal he settled when an application for leave to appeal was lodged, Mr Pipe initially believed Judge Meyler had erred in relation to a key issue. He argued that the old 14-year long residence immigration rules that applied at the date of decision did not contain requirements relating to English language ability and knowledge about life in the UK. He sought to argue that Judge Meyler had erred by quoting the wrong version of the rules at paragraph 12 of her decision. As a result, he argued, the judge had erred when she found at paragraphs 23 and 24 that the appellant could not meet the requirements of long residence because he had not sat the English language or life in the UK tests.
7. I was somewhat confused by this because the version of the rules on file, which were marked as having been handed up by Ms Hussain, the Presenting Officer in the FtT, included such requirements. After I took him to the relevant text, Mr Pipe admitted that he had misread the rules and withdrew this argument.
8. Mr Pipe sought to introduce a further argument. He took me to paragraph 276A1 of the version of the immigration rules in force at the date of application and argued that Judge Meyler should have had regard to the fact there was a provision for a person to secure an extension of leave if the requirements of 276B were met other than having sufficient knowledge of the English language and life in the UK.
9. Mr Pipe sought to establish that the appellant could benefit from this immigration rule. He returned to the argument which had caused the original problem with Judge Meyler's decision; what immigration rules applied? Mr Pipe took me to the original grounds of appeal he settled for the appellant when he first applied for permission to appeal. Those grounds were rejected by FtT Judge Pedro.
10. The same grounds were incorporated into the application made to the Upper Tribunal. Judge Warr did not restrict the grounds even though he only expressly granted permission in respect of the fairness issue.
11. Mr Pipe argued in both sets of grounds that paragraph 276B as in force on 16 June 2009 applied because that was the date on which the appellant applied for long residence. The applicable rules were those in force from 18 May to 30 June 2009, a copy of which was before Judge Meyler and remains on the appeal file as I have indicated above. All subsequent Statements of Changes in Immigration Rules, according to Mr Pipe, entitled the appellant to have his application determined according to the rules at that date.
12. Ms Aboni disputed the transitional provisions applied in this way and relied on Judge Meyler's analysis. She said the presenting officer, Ms Hussain, did not have authority to concede that the earlier version of paragraph 276B applied. The reasons for refusal letter did not make such a concession and in any event such a concession would be unlawful because the law did not permit such an interpretation.
13. Unfortunately, neither representative had copies of all relevant Statements of Changes in Immigration Rules and neither sought to take me through the varied transitional provisions.
14. Mr Pipe referred me to the Court of Appeal's judgment in Singh and Khalid v SSHD [2015] EWCA Civ 74 in which he said the relevant transitional provisions had been examined. I have examined that judgment and do agree that it adequately addresses the changes to paragraph 276B and therefore does not assist. In paragraph 8 of its judgment, the Court does identify the general provision that an application pending at 9 July 2012 would be dealt with under the rules as they were on the previous day; at the end of paragraph 9, the Court mentions that the 14-year long residence provision had been removed. Knowing the complexities of changes to immigration rules, this is not an adequate basis for me to accept Mr Pipe's submission because the Court was not worried about these provisions and simply made a passing reference to the 14-year provision.
15. I have already recorded that Mr Pipe had to admit misreading the relevant immigration rules and therefore this is a case where care is needed to ensure no mistakes are made. In other words, there are reasons why I cannot simply accept Mr Pipe's assertion.
16. I recall that I was caught out by the representatives in a similar situation when I determined the appeal of Koori in the Upper Tribunal. When resolving the matter in the Court of Appeal, Underhill LJ made the following observations.
"39. I agree that this appeal should be dismissed for the reasons given by Elias LJ. The multiple errors on the part of both parties which have made the case so complicated are very regrettable, but I would like to express my concern in particular about the failure of both parties' representatives below (not Mr Malik or Mr Sharland) to ensure that the Tribunals were aware of what transitional provisions were in force as regards the changes to the "seven-year rule". In particular, in the Upper Tribunal, although it was clear that there was an issue about the effect of HC 760 on pending applications, neither the Appellants' former counsel nor the Senior Home Office Presenting Officer below brought a copy to the hearing, and the UT records that "both representatives agreed that we should examine the law for ourselves". That is not good enough: tribunals are entitled to expect to be referred at the hearing to the relevant law and to hear submissions on it. As it turns out, HC 760 had in fact been superseded in the relevant respect by HC 820, but the Tribunal was not told that even after the hearing: it reserved its decision, so there was the chance for the common error to be put right if the position had been checked. I have to say that although both representatives were at fault, in my view the greater responsibility must lie on the Presenting Officer. It is notoriously difficult for those practising in this field to keep up with the constant changes to the Immigration Rules. The one institution which ought always to be expected to have a good grasp of the applicable current law is the Home Office, as the author of the Rules, and the Presenting Officer is its representative. I have thought it worth making this point not out of schoolmasterliness but because this is only the most recent of several occasions on which I have become aware of problems caused by tribunals not being referred to the current versions of the Rules (or other recent developments in the law). I do not wish to be critical of individual Presenting Officers. The problem may well be that the Home Office's procedures for disseminating "current awareness" are not good enough. I hope some lessons can be learnt from what went wrong in this case."
(Koori & Ors v SSHD [2016] EWCA Civ 552.)
17. It is not my role to trawl through the immigration rules to resolve this issue for myself. Because it is Mr Pipe who sought to present arguments relating to the transitional provisions, it fell to him to defend his position. He did not. He did not seek an adjournment; and even if he had I cannot see why I would have granted it because he should have been prepared for every eventuality and his argument arose out of his grounds.
18. Because the appellant has failed to show that this was the relevant version of the immigration rules, I cannot find that he should be able to benefit from it as an alternative.
19. I add that even if Mr Pipe is correct about which immigration rules apply, there is no reason to think that the appellant would automatically have benefitted from the provisions in paragraph 276A1. He did not apply in that capacity and there was no duty on the respondent to consider an alternative to his application. In addition, I am aware that Judge Meyler did not find that the appellant satisfied the good character provisions in paragraph 276B(ii). In paragraphs 21 and 22 of her decision and reasons statement, she indicates factors weighing against the appellant in terms of the public interest. She takes up these issues in paragraphs 33 to 39 and proceeds to find the public interest factors outweigh the appellant's personal circumstances. If he could not satisfy the good character requirements in paragraph 276B, then the appellant could not benefit from paragraph 276A1.
20. It follows that there is no need for me to reconsider the article 8 issues. The decision remains in accordance with the law because it is speculative that the appellant might benefit from paragraph 276A1. For the same reason, the fact paragraph 276A1 exists does not disturb the public interest considerations because the appellant has not shown he would benefit from it. This means there is no reason to look again at the proportionality assessment.
21. I conclude that any legal error in Judge Meyler's decision and reasons statement does not require me to set aside the decision because it is immaterial. She was faced by a complex legal situation and was not properly assisted by the representatives. Even so, she ensured she made full and detailed findings on all possible arguments. It is because of her thoroughness that I can uphold her decision even though a legal error is present; the legal error is not material to the outcome.

Decision
Although the decision and reasons statement of FtT Judge Meyler contains a legal error, the legal error is not material and therefore there is no reason to set her decision aside.
Judge Meyler's decision dismissing the appellant's appeal is upheld.

Signed Date
Judge McCarthy
Deputy Judge of the Upper Tribunal 21 October 2016