Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09288/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 26 January 2017
On 2 February 2017

Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

RAZIA BEGUM
Respondent

Representation:
For the Appellant: Mr M Diwnycz, Senior Home Office Presenting Officer
For the Respondent: Mr M Puar instructed by Malik Law Chambers Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal (Judge M Whitcombe) allowing on human rights grounds the respondent's appeal against a decision of the Secretary of State made on 23 February 2015 to remove the respondent as an overstayer under s.10 of the Immigration and Asylum Act 1999.
2. The respondent who is a citizen of Pakistan last entered the United Kingdom on 23 October 2010. He subsequently made an application for indefinite leave to remain but that was refused and the respondent overstayed. On 29 September 2012, he made a human rights application relying upon Art 8. On 17 September 2013, that application was refused with no right of appeal.
3. On 16 December 2013, a judicial review claim was lodged and on 3 April 2014 that claim was resolved by consent. We were not told upon what basis but, in any event, on 17 October 2014 further representations were made which were treated by the Secretary of State as a fresh application for leave to remain.
4. In response to that application, on 23 February 2015 the Secretary of State refused the respondent's claim based upon his private and family life under the Immigration Rules (HC 395 as amended) and Art 8 of the ECHR and made a decision to remove him. The decision to refuse the respondent's human rights' claim was certified in para 27 of the decision letter as "clearly unfounded" under s.94(2) of the Nationality, Immigration and Asylum Act 2002 ("NIA Act 2002"). The notice of decision informed the respondent that he had a right of appeal but, as his Art 8 claim was certified as "clearly unfounded", that right of appeal under s.82(1) of the NIA Act 2002 could only be exercised after he had left the UK. Despite that, the respondent whilst in-country lodged an appeal notice with the First-tier Tribunal ("FtT").
5. In his decision sent on 26 August 2015, Judge M Whitcombe concluded that, despite the certification under s.94(2), that issue had been resolved by the prior judicial review proceedings and the FtT had jurisdiction to hear the appellant's in-country appeal. As we have indicated, the judge went on to allow the respondent's appeal under Art 8.
6. The Secretary of State sought permission to appeal on the basis that the effect of the certification was that the respondent only had an out-of-country appeal and the FtT had no jurisdiction to deal with the respondent's appeal in-country.
7. On 8 January 2016, the First-tier Tribunal (Judge Colyer) granted the Secretary of State permission to appeal. Thus, the appeal came before us.
8. There is, in our judgment, no answer to the Secretary of State's grounds of appeal. There is no doubt that the respondent's decision of 23 February 2015 included a certification of the respondent's human rights' claim as being "clearly unfounded" under s.94(2) of the NIA Act 2002. We were not shown the basis upon which the judicial review claim had been resolved on 3 April 2014 presumably by a consent order. However, whatever was the basis, it could not affect the certification of the Art 8 claim which was decided by the Secretary of State's subsequently in the letter of 23 February 2015 and which was in response to submissions made by the respondent on 17 October 2014 after the judicial review proceedings were concluded. As a consequence, the respondent's human rights' claim was certified under s.94(2). Although the respondent had a right of appeal against the removal decision made on 23 February 2015 by virtue of s.82(1) read with s.82(2)(g) of the NIA Act 2002, the effect of s.94(2) was that the in-country right of appeal provision in s.92(4)(a) did not apply. The right of appeal was only exercisable out-of-country.
9. For these reasons, the First-tier Tribunal erred in law and its decision must be set aside. We substitute a decision to the effect that the First-tier Tribunal lacked jurisdiction to hear the appeal.

Signed

A Grubb
Judge of the Upper Tribunal

Date