Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09336/2013

THE IMMIGRATION ACTS

Heard at: Manchester
Determination Promulgated
On: 17th September 2013
On: 28th October 2013

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Before

DEPUTY UPPER TRIBUNAL JUDGE BRUCE

Between

Elizabeth Olubunmi Adeolu Bolade
(no anonymity direction made)
Appellant
and

Secretary of State for the Home Department
Respondent

For the Appellants: Mr Chimpango, Crown & Law Solicitors
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is a national of Nigeria date of birth 4th June 1982. She has permission to appeal against the decision of the First-tier Tribunal (Judge McGavin) to dismiss her appeal against the Respondent's decisions to refuse to vary her leave to remain in the UK and to remove her from the UK pursuant to section 47 of the Immigration, Asylum and Nationality Act 20061. Those decisions followed from the refusal to grant the Appellant further leave to remain as the dependent partner of a Tier 1 (General) Migrant.

Error of Law

2. It is agreed between the parties that the Appellant could not succeed under the Rules if the application fell to be refused under one of the general grounds for refusal. The Respondent had refused the application with reference to paragraph 322(1C) which provides that a person applying for indefinite leave to remain must be refused if, within 24 months of the date of application, they were convicted of or admitted an offence with the result that they have a criminal record. The Appellant had admitted on her application form that she had been convicted by way of caution of the offence of battery, the caution being administered on the 24th April 2011. Since the application was made on the 6th February 2013 this fell within the 24 months period and the Respondent therefore refused the application.

3. On appeal the First-tier Tribunal rejected the following arguments put forward by the Appellant's representative. Firstly it was said on her behalf that under the terms of the Rehabilitation of Offenders Act 1974 the caution is spent as soon as the offender leaves the police station. Judge McGavin referred to s56A of the UK Borders Act 2007 (inserted by section 140 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012) which stipulates that the rehabilitation provisions of the Rehabilitation of Offenders Act do not apply in relation to any proceedings brought under the Immigration Acts. The caution could not therefore be regarded as spent. The grounds of appeal challenged this finding but before me Mr Chimpango did not seek to pursue it, accepting that Judge McGavin's interpretation of the statute was correct since the relevant section came into operation in October 2012.

4. Secondly the Appellant's representative had argued that "it was contrary to natural justice" for Parliament to enact a law which had adverse immigration consequences for the Appellant as a result of her caution, whereas at the time that the caution was received, no such adverse consequences existed. Mr Chimpango wisely distanced himself from this submission. There is no breach of natural justice in parliament passing such legislation. That applicants are refused because of past criminal offending is the express intention of parliament and this would necessarily involve some applicants who had committed their offences before the legislation came into effect.

5. The only argument put to the First-tier Tribunal that Mr Chimpango did rely on was this. It is submitted that the 24 month period should run backwards from the date of decision, not the date of application. Unfortunately for the Appellant the terms of the rule are clear. There is no ambiguity in paragraph 322 (1C). An application is to be refused:

(1C) where the person is seeking indefinite leave to enter or remain:
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(iv) they have, within the 24 months preceding the date of the application, been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record.

6. The Judge cannot be said to be in error for applying the wording of the Rule.

7. Mr Harrison for the Respondent accepted that the determination does contain an error in law in respect of s47. Following the decision of the Tribunal in Adamally and Jaferi (section 47 removal decisions: Tribunal Procedures) [2012] UKUT 00414 (IAC) the appeal against removal should have been allowed as not in accordance with the law. Mr Chimpango indicated that the Appellant's husband has now been granted indefinite leave to remain in the UK and it was the Appellant's intention to make fresh representations to the Respondent to be permitted to remain with her husband. No doubt the Respondent would wish to consider those representations whilst reviewing the decision to remove.

Decisions

8. The decision of the First-tier Tribunal in respect of the refusal to vary leave to remain contains no errors and is upheld.

9. The decision of the First-tier Tribunal in respect of the appeal against removal contains an error and is set aside. The decision is re-made as follows:

"the appeal is allowed as the decision is not in accordance with the law".

Deputy Upper Tribunal Judge Bruce
22nd October 2013