Tribunal decisions

The decision

IAC-HW-AM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/09733/2013
IA/09730/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 12 December 2013
On 23 December 2013

Before

UPPER TRIBUNAL JUDG
E PINKERTON

Between

mR eromosole christopher arehia
mrs cecilia ebodobhawe arehia
(anonymity direction not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr A Miah of Counsel
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DETERMINATION AND REASONS
1. On 24 August 2012 the first named appellant applied for indefinite leave to remain as a Tier 1 (General) Migrant. The second appellant was named on the first appellant’s application form as his partner and dependent. The application was refused under paragraph 245CD(c) of HC 395 as amended. A decision to remove the appellants was made at the same time. The Notice of Immigration Decision is dated 11 March 2013.
2. The appeal came before First-tier Tribunal Judge Rose. In a determination promulgated on 30 August 2013 the appeals were dismissed.
3. At the hearing before the judge the appellants were represented by Dr J Onipede. The appellants sought permission to appeal to the Upper Tribunal. The “reasons for appealing” are contained in a document that exceeds five pages in length. It is unclear who drafted those reasons as no name appears at the foot of the document. In essence the appellants take issue with the judge’s decision regarding their Article 8 ECHR private and family life rights. It is said that the judge made an error of law in failing to consider that the appellants met the requirements of the Immigration Rules.
“…The first appellant clearly stated in both the grounds appeal (sic) and the skeleton argument in his appeal bundle that the respondent did not consider the application for ILR under the correct paragraph of the Rules which was 245E because the appellant was a Highly Skilled Migrant who came in the UK with a valid visa in 2007 and successfully applied for an extension of leave as a Tier 1 (General) Migrant and as such as (sic) a legitimate expectation to be granted ILR at the completion of a lawful period of residence of five years in the UK which had been started prior to the changes in the Immigration Rules that took place on 9 July 2012”.
4. Permission to appeal was granted because it was found arguable that the judge had failed to address grounds of appeal under the Immigration Rules. The Record of Proceedings clearly identifies that the appellants’ representatives stated that the appeals were pursued on human rights grounds only – Article 8. That is reflected in the determination. However, in the light of the assertions made, although unsupported by evidence from the advocate who represented the appellants at the time, it was found arguable that accordingly there was a material error of law in the form of a fundamental mistake as to the ambit of the appeal as asserted. The judge granting permission added that the failure to supply evidence in support of the allegation was deprecated.
5. On 8 October 2013 the respondent filed a Rule 24 response. This was to the effect that the original hearing before the First-tier Tribunal Judge was dealt with on the basis of Article 8 at the request of the appellants’ representative as was noted in the determination. There is no evidence from Dr Onipede to the contrary. The Presenting Officer’s Minute agrees with the contents of paragraph 4 of the determination as to the scope of the appeal and an extract from the Minute was then set out in the response. The Minute records that Dr Onipede said that the appeal was being fought only on Article 8 grounds and in submissions later confined the appeal to private life grounds only. The response said also that the grounds appeared to be a “disingenuous attempt to prolong the appellants’ stay through litigation without any legal basis”.
6. The appellants were represented by Mr I Khan of Counsel at the hearing before the Upper Tribunal Judge on 7 November. Mr Khan applied for an adjournment to enable him to obtain statements from the appellants and from Dr Onipede. The application was not opposed by Mr Jarvis who represented the Secretary of State. The judge granted the adjournment on the basis that the appellants were unrepresented when they filed the application for permission to appeal but by the time of the hearing had found representation and needed time to prepare.
7. The directions given at the hearing on 7 November were that the respondent should file and serve a copy of the Presenting Officer’s Minute referred to in the Rule 24 response within fourteen days and that not later than seven days before the hearing (set for 12 December 2013) the parties should serve on each other all documentary evidence upon which they intended to rely at that hearing including statements from the appellants together with skeleton arguments and authorities.
8. The respondent did not file and serve a copy of the Presenting Officer’s Minute. The appellants both filed statements. The first named appellant states in paragraph 2 of his statement that he believed that Dr Onipede “used his own initiative to agree with the respondent that there were no grounds to appeal under the Immigration Rules”. He then says in subsequent paragraphs that later, in the courtroom, Dr Onipede, the respondent’s representative and the judge discussed the preliminary issues of the matter and agreed among themselves that the case was presented on human rights only and that he, the first appellant, was not allowed to make any comment because it was not “procedural”. The appeal was heard on human rights grounds only and no mention was made of the grounds of appeal raised which stated clearly that the refusal decision was not in accordance with the Immigration Rules. This aspect was not dealt with. The first appellant did not consent for his matter to be dealt with on human rights alone because he qualified for settlement under the Rules.
9. The second appellant shares her husband’s concerns about the appeal “that was made exclusively on human rights when we both know that we qualify under the Immigration Rules”. The second appellant did not consent for the family’s matter to be dealt with on human rights alone and she clearly stated that she wanted the appeal to be made primarily on the grounds that the respondent’s decision was not in accordance with the Rules and also on human rights grounds.
My deliberations
10. The case of BT (former solicitors’ alleged misconduct) Nepal [2004] UKIAT 00311 provides commonsense guidance as to what is to be done in situations where there are allegations about the conduct of former representatives. Even if the appellants’ representatives were unaware of that case there was an indication from Mr Khan at the hearing on 7 November that he would obtain, or perhaps attempt to obtain, a statement from Dr Onipede. The case referred to requires evidence that allegations about the conduct of a former representative or former representatives must be put to them and the Tribunal must be shown either the response or correspondence indicating that there has been no response. Mr Miah was not able to tell me that this is what had happened in this appeal.
11. Although the Minute referred to in the Rule 24 response has not been produced I do not find it is actually in issue that the case proceeded on anything other than submissions regarding Article 8 rights and that for whatever reason Dr Onipede did not seek to persuade the judge that the appellants could meet the relevant rule or rules. As to whether Dr Onipede was acting without instructions the appellants say that he was but that issue has not been put, it appears, to Dr Onipede. If it has been put to him there is no evidence that he has failed to respond or if he did respond what that response was. As is set out in BT above the Tribunal will in general not make a finding of fact based on an allegation against former representatives unless, first, it is clear that the former representatives have been given an opportunity to respond to the allegation which is being made expressly or implicitly against them, and secondly, (the Tribunal) is either shown the response or shown correspondence which indicates that there has been no response. Dr Onipede signed a Section 84 (of the Immigration and Asylum Act 1999) certificate to the effect that his professional address is that of his own chambers in south-east London and that his professional body is the Bar Council.
12. The lack of evidence regarding the matter leads me to the finding that the appeal proceeded perfectly properly before the judge and that there was no fundamental mistake as to the ambit of the appeal and there has been therefore no irregularity or unfairness to the appellants.
13. The Reasons for Refusal Letter I note is very comprehensive. Summarising what the respondent says it was considered that the appellants’ absences from the United Kingdom over the five year qualifying period specifically with reference to the three twelve month periods referred to in the letter served to break the appellants’ period of continuous lawful residence in the United Kingdom. It was acknowledged that the majority of the absences from the UK were for the purposes of undertaking employment but it was said that the appellants far exceeded the maximum number of permissible absences. It was not accepted that they could legitimately claim that they have been continuously resident in the UK during this period because of the significant periods of time that they were absent.
14. Although it has not been argued before me I note that the grounds of appeal before the First-tier Judge asserted that the appellants met all the requirements of paragraph 245E of the Immigration Rules which rule, I note, was deleted on 6 April 2011. It is said in those grounds of appeal to the effect that because the first appellant “has been granted leave to remain before 9 July 2012 (the appellant’s previous residence permit under the PBS was valid from 19/08/2009 until 5/09/2012) the appellant (+1)’s application for indefinite leave should have been considered under the Immigration Rules in force at 8 July 2012 until settlement (the grant of indefinite leave to remain) even where the application is granted on or after 9 July 2012.”
15. Although I do not follow the argument it is difficult to see that the appellant could rely upon paragraph 245E when it had been deleted from the rules more than a year before 9 July 2012, and in any event does not deal with the real point in issue which relates to the appellants’ absences from the United Kingdom.
16. In the grounds there is fairly scant reference to the reasons given by the respondent for not accepting that the appellants had been continuously resident in the United Kingdom. There is reference to there being “no broken periods in between of three months; the appellant returned to the UK to establish residency as UK is his main country of residence and his reason of absence is for employment purposes as his employment is field related in oil and gas”. The first appellant went on to say that he believed that the respondent failed to give diligent consideration to the evidence provided as the continuous residence requirement in the UK during the five year period was met by the appellant. He then sets out that the appellants own a property here and have paid for mortgage and utility bills etc., his name has been on the electoral register, and he has participated in elections since 2007.
My Conclusions
17. Although I make no finding on the matter, because I do not need to, it may well be that after considering in more depth whether the grounds of appeal could be argued successfully at the hearing before the judge the appellants’ barrister advised the appellants that they would not succeed under the Rules but they still had the opportunity to put forward Article 8 ECHR arguments. Whether that in fact happened does not make any difference to my finding that the judge made no mistake as to the full ambit of the appeal. There is simply not the evidence before me to allow me to conclude otherwise. It is clear that the appeal proceeded on human rights grounds only as was noted by the presenting officer and the judge. I am not persuaded that the appellants’ counsel was acting contrary to instructions or did not have the authority, express or implied, to act as he did. The matters raised by the appellants in their grounds of appeal before the First-tier Tribunal are not persuasive and not so obviously good points that had they been pursued they were likely to lead to a finding that the appeals would succeed on the balance of probabilities.
18. The matter does not end there, however, because there is still the challenge to the manner in which the judge dealt with the Article 8 position of the appellants. The submissions on behalf of the appellants are summarised in paragraphs 6 onwards of the determination of the First-tier Tribunal Judge. The judge found that the appellants did not meet the requirements of paragraph 276 ADE of the Rules and although that was not determinative of the appeals he went on to consider those cases referred to in paragraphs 18 and 19 of the determination and concluded that the refusal of the applications is proportionate. Although the judge’s consideration and findings are short and succinct there is no error in law and he was entitled to conclude as he did for the reasons given.
19. The decisions to remove the appellants from the United Kingdom were withdrawn at the hearing. Before any further decision to remove them is made by the Secretary of State, if that is her decision, there has to be further consideration of the appellants’ positions and no doubt they will be invited to make representations as to why they should not be removed.
Decision
20. The judge did not err and what occurred before and at the hearing before him does not disclose a good reason for the decision to be revisited. Therefore the decision of the First-tier Tribunal Judge stands which is that these appeals are dismissed.
21. There has been no anonymity direction made previously and there was no argument before me that one should be made and I see no reason to make one in the particular circumstances of this appeal.

Signed Date

Upper Tribunal Judge Pinkerton