Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09442/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 6th March 2017
On 11th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RIMINGTON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

DEVEKA SHEREE TOMLIN
(Anonymity Direction Not Made)
Respondent

Representation:
For the Appellant: No Attendance
For the Respondent: Mr D Clarke Home Office Presenting Officer

DECISION AND REASONS
1. The application for permission to appeal was made by the Secretary of State but nonetheless I shall refer to the parties as they were described before the First Tier Tribunal that is Ms Tomlin as the appellant and the Secretary of State as the respondent.
2. The appellant is a national of Jamaica born on 12th January 1980 and she appealed an immigration decision dated 20th February 2015 refusing her leave on private and family life grounds. Her immigration history is as follows. She entered the UK in 1997 and was granted leave in 1998 to remain as a student until 30th April 1999. On 22nd May 1998 she was granted further leave to remain as a student until 30th May 2000. In the meantime she was without leave. Unfortunately it was not until 13th July 2001 that the appellant submitted a further application for leave to remain. That application was refused on 30th November 2001. Again on 10th September 2003 she applied for leave to remain and this was granted over time until 29th December 2014. On 29th December 2014 she applied for further leave to remain, that application was refused and is the subject of this appeal.
3. First-tier Tribunal Judge Plumptre allowed the appellant’s appeal. The Secretary of State’ challenge rested on three grounds.
(i) mistake of fact - after 30th May 2000 the appellant was in fact an overstayer in the UK and did not make a further application until 13th July 2001 which was refused. When she submitted an application on 10th September 2003 she was without leave until her application was decided on 29th December 2014. The failure of the appellant to leave the UK, or that the public interest should be reduced was not factored in.
(ii) failure to give correct to material matters.
The judge allowed the claim under the Immigration Rules but assessed the claim with reference to Section 117B which relates to an assessment under Article 8. Even when assessing under Article 8 the judge gave weight to factors which could not enhance her claim such as being able to speak English or being financially independent, Forman (ss117 A-C considerations) [2015] UKUT 00412 (IAC). This was a misdirection. The weight attributed to ties in the United Kingdom was limited as her leave was as an overstayer and thus precarious. The judge had not factored in the relevant ties (or lack) to the UK. The judge had seemingly allowed the appeal under the Immigration Rules but factored in considerations under Article 8
(iii) The judge failed to given adequate reasons as to whether the appellant could return and receive adequate support from her family in the UK for support or why the support in the UK could not continue in Jamaica and why her qualifications would not allow her to obtain employment in Jamaica. As such the judge had failed to consider the test of very significant obstacles to her return under Paragraph 276ADE.
4. At the hearing before me Mr Clarke relied on the grounds of appeal. The appellant despite having been served with the notice of hearing did not attend the hearing. Nonetheless I conclude that in accordance with the overriding objective of The Tribunal Procedure (Upper Tribunal) Rules 2008 the matter should proceed in the interests of justice.
Conclusions
5. In relation to ground (i) the judge, albeit in part, based her conclusions at [18] on the fact that
‘whenever she has made applications they have always been granted. I accept that her immigration status has been precarious, in the sense that her leave has always been limited, but the reality is that any precariousness was not of her own making since she has been kept waiting for eleven years for a decision to be made about her application for an extension of student leave, and hence relied on her leave being extended by Section 3C’.
6. The judge gave weight to the considerations identified above but in fact the appellant did not have Section 3C leave as the judge concluded. This was an error of law and which might have material effect on the conclusions of the judge. In a determination dated
7. In relation to ground (ii) it is apparent that the judge allowed the matter under the Immigration Rules but nonetheless factored in considerations that are applicable only in an Article 8 assessment. The judge applied Section 117 of the Nationality Immigration and Asylum Act 2002 but even then and, contrary to Forman (ss117 A-C considerations) [2015] UKUT 00412 (IAC) gave positive weight, as argued in Ground (ii), to factors that are merely neutral such as the ability to speak English and financial independence. That is an error which is material
8. The judge reduced the weight to be given to public interest because of the delay in processing one of her applications between 2003 and 2014. The judge factored in that all her leave was lawful whilst awaiting a decision; it was not. Although the delay might not have been the fault of the appellant the judge would appear to have approached the decision on the basis of Article 8 first and then approached the issue of the Immigration Rules.
9. The judge applied EB Kosovo v SSHD [2008] UKHL 41 but as identified this was decided prior to the introduction of Section 117. At the date of the decision the appellant had 14 years unlawful residence but the Immigration Rules had in fact changed by the date of decision. This was not taken into account by the judge. The reasoning did not adequately address the issues of self sufficiency.
10. It would appear that the First-tier Tribunal Judge made her findings in relation to Article 8 which then informed the findings with respect to the Immigration Rules and imported an Article 8 test into that consideration at [22] and merged the considerations under the Immigration Rules and Article 8. That is an error of law.
11. Even if the appeal were allowed on Article 8 grounds, which according to the decision it was not, the factual findings in relation to Article 8 were as highlighted above incorrect.
12. The appellant might succeed under the Immigration Rules, as they now stand, at the close of November 2017, but the fact is that the appeal was apparently decided on the Rules and at the date of the decision the appellant had not achieved 20 years unlawful residence in the UK in accordance with the Rules.
13. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

Signed Helen Rimington Date 7th April 2017

Upper Tribunal Judge Rimington