Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10217/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 December 2016
On 3rd January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

rishi gerwinsingh bhoobun
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr S Staunton, Senior Home Office Presenting Officer
For the Respondent: Mr R Deepchand of Counsel instructed by Lambeth Solicitors

DECISION AND REASONS
Background
1. The appellant in this case is the Secretary of State and the respondent is Mr Rishi Gerwinsingh Bhoobun. However for the purposes of this Decision and Reasons I refer to the parties as they were before the First-tier Tribunal where Mr Bhoobun was the appellant. Mr Bhoobun is a national of Mauritius born on 20 February 1981 and entered the United Kingdom on 29 August 2004 with entry clearance as a student. On 31 October 2014 the appellant applied for settlement in the UK on the basis of ten years' continuous lawful residence. The Secretary of State refused that application on 19 February 2015. In a decision promulgated on 7 July 2016 Judge of the First-tier Tribunal Henderson allowed the appellant's appeal under the Immigration Rules.
2. The Secretary of State appealed to the Upper Tribunal with permission. The Secretary of State's grounds of appeal were: this was a case where the appellant was unable to meet the long residence Rules as he had a gap in his valid leave to remain. The appellant had made an in-time application on 30 October 2008, his leave expiring on 31 October 2008. However that application was rejected as invalid as the fee was declined. A subsequent (valid but out of time) application was submitted on 11 December 2008 and this was granted in February 2009 meaning that the appellant had a gap in his leave from 31 October 2008 until 26 February 2009. The Secretary of State argued that the First-tier Tribunal made a finding that the appellant did not receive the letter sent to him on 9 November 2008; however it was submitted that the acceptance of the appellant's evidence about his failure to receive the rejected application cannot confer any leave on him and cannot reduce the gap in his continuous residence. It was submitted that the judge's acceptance of the appellant's explanation about when or how he received the rejection letter was immaterial.
3. The Secretary of State's second ground was that the judge went on to find that, as a result of the misdirected post, the appellant only had a gap in his leave of 32 days and therefore discretion should have been considered by a senior case worker as to the reason for the out of time application in 2008. The judge found that the Secretary of State's decision was not in accordance with the law. However the judge also allowed the appeal under the Immigration Rules and it was submitted that the judge materially misdirected herself: if a senior caseworker should have considered whether to exercise discretion, it was submitted that any decision that the appellant was unaware of the rejection of his initial application could not confer leave and the correct course of action would have been to remit the case to the Secretary of State.
The Hearing
4. Mr Bhoobun attended the hearing and was represented by Mr Deepchand. Mr Staunton in his submissions indicated that whilst he was not conceding the first ground he was not pursuing it. In relation to the respondent's second ground he submitted that the judge made a clear error in allowing the appeal outright having, at paragraph 27, found that the Secretary of State's decision was not in accordance with Home Office guidance and therefore not in accordance with the law.
5. Mr Deepchand returned to the issue, raised in the First-tier Tribunal, in relation to the letter of 9 November 2008 rejecting the appellant's application for further leave to remain made on 30 October 2008. Mr Deepchand referred me to Mr Bhoobun's letter of 11 December 2008, which was before the First-tier Tribunal, where Mr Bhoobun indicated that when the documents were sent back to him they were wrongly delivered to Guildhall College instead of London Guildhall College and he was only informed of this on 10 December 2008, before resubmitting the documents the following day on 11 December 2008.
6. Mr Deepchand pointed out that the applicant had acted promptly following his discovery of the error of the post office. Mr Deepchand relied again on the Secretary of State's guidance on long residence applications which was before the First-tier Tribunal and indicated that example 3, given at page 20 of the guidance, where the application had been made 34 days out of time was most relevant to Mr Bhoobun's case. Mr Staunton agreed that this was the most appropriate example.
7. It was Mr Deepchand's argument that therefore the Secretary of State should have exercised her discretion to grant leave to Mr Bhoobun and to disregard the gap in lawful residence.
8. In relation to the second ground Mr Deepchand relied on the Upper Tribunal case of Ukus (discretion: when reviewable) [2012] UKUT 00307. Mr Deepchand referred me to the third paragraph of the headnote which provides:
"If the decision maker has lawfully exercised his discretion and the Tribunal has such a statutory power, the Tribunal must either (i) uphold the decision maker's decision (if the Tribunal is unpersuaded that the decision maker's discretion should have been exercised differently); or (ii) reach a different decision in the exercise of its own discretion."
Decision
9. I am satisfied that there is little merit in the respondent's first ground. Although the judge may have erred in her finding in relation to the length of the gap in the appellant's lawful leave I am not satisfied that that error was material given that the key issue that the judge was considering was whether Mr Bhoobun had been credible in his evidence in relation to the reason for the gap in his leave. She found that he was and there was no substantive challenge to those findings which I am satisfied were correct and must stand. What the judge relied on was that there was a good reason for Mr Bhoobun's 32 day delay in submitting his application and that this was within the principle of the circumstances in example 3 on page 20 of the respondent's Guidance on Long Residence. The fact that a lawful decision by the Secretary of State extending Mr Bhoobun's leave was not then made until 26 February 2009 (thus giving him a longer period where he had a gap in lawful leave) is not material for the purposes of that guidance.
10. However in relation to the respondent's second ground I am satisfied that there is merit. The Judge of the First-tier Tribunal, having found the appellant's version of events to be credible and having made findings of fact in support of the appellant's account of events and that Mr Bhoobun fell within the principle of the circumstances in example 3, noted that the guidance on long residence stated that the "decision must be confirmed with the SEO senior caseworker. I find that the respondent's decision is not in accordance with the Home Office's guidance and thus, is not in accordance with the law".
11. I am satisfied that this is a case where the judge quite properly found that the Secretary of State had failed to exercise a discretion vested in her. Paragraph 2 of the headnote in the Ukus case provides as follows:
"Where the decision maker has failed to exercise a discretion vested in him, the Tribunal's jurisdiction on appeal is limited to a decision that the failure renders the decision 'not in accordance with the law' (s.86(3)(a)). Because the discretion is vested in the Executive, the appropriate course will be for the Tribunal to require the decision maker to complete his task by reaching a lawful decision on the outstanding application, along the lines set out in SSHD v Abdi [1996] Imm AR 148. In such a case, it makes no difference whether there is a statutory power as is mentioned in paragraph 1 above."
12. The Secretary of State failed to exercise the discretion that was open to her to follow, following her guidance, particularly at example 3, page 20, of the long residence guidance and to allow Mr Bhoobun's application. The exercise of this discretion must include confirming this with the senior executive officer senior caseworker. There was no evidence that the decision maker lawfully exercised her discretion, as envisaged in paragraph 3 of the Ukus headnote.
13. The Secretary of State's decision was not in accordance with the respondent's own guidance and therefore not in accordance with the law as properly found by the Judge of the First-tier Tribunal at [27] of her decision. The judge was incorrect to allow the appeal outright.
Conclusion
14. The decision of the First-tier Tribunal contains an error of law. I set aside the decision to allow the appeal under the Immigration Rules and substitute my own decision to allow the appeal as not in accordance with the law. The case is remitted to the Secretary of State for a lawful exercise of her discretion in accordance with the Secretary of State's own guidance, in particular at page 20 of that guidance.

Signed Date: 30 December 2016

Deputy Upper Tribunal Judge Hutchinson

No anonymity direction was requested or is appropriate in this case.

TO THE RESPONDENT
FEE AWARD
No fee application was made and I make no fee award.

Signed Date: 30 December 2016

Deputy Upper Tribunal Judge Hutchinson