Tribunal decisions

The decision

St

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06447/2015

THE IMMIGRATION ACTS

At Field House
Decision and Reasons Promulgated
on 4th October 2016
on 17 November 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MR. FORTUNE [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: Mr B Lams, Counsel, instructed by SBG 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 Paul allowing the appeal on the basis the respondent's decision was not in accordance with the immigration rules.
3. The appellant is a national of Zimbabwe born on 17 July 1972. He claims to have arrived in United Kingdom in May 1997.
4. He applied for discretionary leave to remain on the basis of his relationship with a settled person, Ms Saina [C] and their son, [TC], a British national. On 7 November 2011 he was granted leave to remain for three years, which is until the 6 November 2014.
5. On 3 November 2014 he applied to vary that leave so that he could remain. In the application he revealed he was living apart from Ms Saina [C] and their daughter. He said this was due to work commitments. He was living in Northampton and they resided in Essex.
6. His application was refused on 30 January 2015. This was because the respondent was not satisfied the relationships were subsisting. The application was considered against the immigration rules and appendix FM in relation to the partner and parent routes. The conclusion was that the eligibility requirements were not met. The appellant was not married to Ms Saina [C] and the evidence did not indicate they had been cohabiting for two years in a relationship akin to marriage. Consequently, EX1 did not apply.
7. Under the parent route he could not succeed if the partner of the child's mother (E-LTRP 2.3(b)). He also could not succeed because he had not demonstrated he played an active role in the child's upbringing (E-LTRP 2.4(b)).
8. Regarding his private life and paragraph 276 ADE his claim was that he came to the United Kingdom in 1997 and so did not meet the required 20 years presences. He could reintegrate into life in Nigeria and so was not assisted by paragraph 276 ADE (1)(vi).
9. No exceptional circumstances were identified indicating the decision otherwise breached his article 8 rights.
The Fist tier Tribunal
10. First-tier Judge Paul at paragraph 10 concluded from the evidence that the relationships were true and subsisting. The appeal was allowed on the basis the decision was not in accordance with the rules.

The leave to appeal to the Upper Tribunal application
11. The appellant's representatives had accepted that the requirements of appendix FM could not be met. Permission to appeal was granted on the basis that the purported allowance of the appeal under the rules was not consistent with this concession. Instead, the judge should have considered whether a freestanding article 8 assessment was appropriate.
The Upper Tribunal hearing.
12. Both representatives accepted the judge was wrong in stating that the respondent's decision was not in accordance with the rules. The application had been for discretionary leave. It was suggested this may have been a slip and the judge intended to state that the decision was not in accordance with the law rather than the rules. Mr Clarke did not seek to challenge the central finding at paragraph 10 of the decision that the parties were in a subsisting relationship.
13. Mr Lams provided a copy of the respondent's policy instructions version 7 applicable from 18 August 2015 which is similar in terms to the previous version. Section 10 provides that applicants who are granted discretionary leave before the 9th July 2012 under the policy in force at the time would normally continue to be dealt with under that policy through to settlement. Decision-makers were required to consider whether the circumstances prevailing at the time of the original grant of leave continued and if so and a criminality check was satisfied a further period of discretionary leave should normally be granted. Where there had been a significant change or an issue of criminality then the application should be refused.
14. The respondent in refusing the application did so on the basis the grounds on which the previous grant was made no longer applied, namely the family relationships. There was no question of any criminality. The finding of First-tier Judge Paul that the relationships were continuing has been accepted by the respondent. Consequently it was argued that on this basis the policy was in favour of a further grant.
15. Reliance was placed upon AG and others (policies; executive discretions; tribunal's powers) Kosovo [2007] UKAIT 00082.Where a policy creates a presumption in favour of granting leave on the facts and there is nothing to displace that presumption or anything under the terms of the policy requiring further consideration a substantive decision in a claimant's favour could be made with a direction that leave be granted. In such a situation there was no need to base a decision on human rights grounds. Consequently, it was submitted that if the reference by First-tier Tribunal Judge Paul to allowing the appeal under the immigration rules was seen merely as a slip then there was no material error of law in the decision. Alternatively, it was submitted that I could remit the matter back to the respondent was a direction that he should be granted leave sought.
16. Mr D. Clarke reminded me of paragraph 5 of the head note of AG and others (policies; executive discretions; tribunal's powers) Kosovo [2007] UKAIT 00082 whereby if the benefit of the policy is dependent upon the exercise of discretion outside the rules the tribunal has no power to substitute its own decision.
17. Section 87 of the Nationality, Immigration and Asylum Act 2002 provided that where an appeal is allowed under section 82 the tribunal may give a direction to give effect to its decision. In the course of the hearing an issue arose as to whether this section, repealed by the 2014 Act, was preserved in the appellant's case because of the transitional provisions. Mr Lams with the agreement of Mr Clarke subsequently produced a submission on this issue to the effect that section 87 still applies.
Conclusions
18. First-tier Tribunal Judge Paul dealt with the central issue of the relationship. The finding was one open to the judge on the evidence of the appellant, Ms Saina [C] and the documentary evidence considered. No challenge has been made to this. The judge incorrectly referred to the appeal being allowed on the basis the decision of the respondent was not in accordance with the rules. This clearly was wrong because the application was not under the rules and it was accepted the rules could not be met. There is no reference in the decision to the policy. I do not find it established that the reference to the rules was simply a slip on the part of the judge. Consequently, I find there is a material error of law and the decision as made cannot stand.
19. Having regard to the policy and the accepted finding of First-tier Tribunal Judge Paul I find there is nothing further to determine. Consequently, as there is no discretion to exercise the appellant should be granted the three years discretionary leave applicable.
Decision
The decision of First-tier Tribunal Judge Paul contains a material error of law and cannot stand. The finding at paragraph 10 of the decision that the relationships are subsisting is preserved.
20. Given this preserved finding and the absence of criminality then under the terms of the policy there is no remaining discretion to exercise. Consequently, I allow the appeal and direct the respondent to grant the three years discretionary leave applicable.

Deputy Upper Tribunal Judge Farrelly