Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10349/2015
IA/10350/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 July 2016
On 23 September 2016

Before

UPPER TRIBUNAL JUDGE DEANS

Between

MS KATE ETIME IKEDIASHI
MR BENJAMIN OSAMUDIA EJENOBI
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Mr A Jafar of Counsel, instructed by Jesuis Solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS

1) The appellants are a mother and son. They appeal against a decision by Judge of the First-tier Tribunal Metzer dismissing their appeals under the Immigration Rules and under the Human Rights Convention.

2) The appellants are nationals of Nigeria. They appealed against decisions dated 2 March 2015 by the respondent to remove the appellants following refusal of a human rights claim. The date of the applications giving rise to the removal decisions - indeed even the existence of such applications - is a matter of some contention. This is because the second appellant attained the age of 18 on 2 October 2014. There was a question before the First-tier Tribunal as to whether the applications leading to the decisions under appeal were made on 8 September 2014, while he was still under 18, or in January 2015, by which time he was over 18. The Judge of the First-tier Tribunal decided that the applications were made in January 2015 and therefore the second appellant was 18 when the applications were made.

3) The Judge of the First-tier Tribunal did not believe evidence of the first appellant, the mother, as to whether she had family in Nigeria and whether she had owned property in Nigeria. The judge noted that the appellants had been in the UK for over 10 years but their status was precarious. Although they had built up some private or family life in the UK, particularly in relation to education in respect of the second appellant, there would be no breach of Article 8 were the appellants to return to Nigeria. The applications would not succeed under paragraph 276ADE of the Immigration Rules. The second appellant, the son, had lived not quite half his life in the UK, having entered on 30 September 2007, according to the respondent. His mother had entered earlier in November 2006. For the appellants, Mr Jafar maintained that both had arrived in the UK in November 2006 but nothing turns on this in these proceedings.

4) Permission to appeal was granted by the Upper Tribunal primarily on the basis that there was some uncertainty over the date on which the applications giving rise to the decision under appeal were made. If they were made on 8 September 2014 the first appellant would have been 17 at the time but if they were made in January 2015 he would have been 18. In granting permission the Upper Tribunal Judge observed that the point was not likely to meet with success for the appellants unless presented with greater clarity.

5) The Upper Tribunal Judge granted permission to appeal on other grounds also but commented these had limited prospect of success. The principal argument on which these other grounds were based was that the judge did not sufficiently distinguish between the two appellants, contrary to the decision of the Upper Tribunal in PD and Others (Article 8 - conjoined family claims) Sri Lanka [2016] UKUT 108.

Submissions

6) At the hearing before me Mr Jafar acknowledged that the issue was essentially a narrow one, namely whether the applications giving rise to the refusal decisions under appeal were made on 8 September 2014 or in January 2015.

7) Mr Jafar referred to the immigration history of the appellants. In August 2013 the first appellant applied for asylum with her son as her dependant. This application was refused on 4th August 2014. The reasons for refusal were in the appellant's bundle. The son's position was considered but at that time the son had not spent 7 years in the UK and it had not been shown that there were any exceptional circumstances why he could not return with his mother to Nigeria. According to Mr Jafar the respondent was wrong in August 2014 to state that the son had not been in the UK for 7 years. However the decision of August 2014 was certified and could not be appealed from within the UK.

8) The appellants made a subsequent application for further leave to remain received by the Secretary of State on 8 September 2014. This was before the second appellant became 18 on 2 October 2014. On 7 November 2014 these applications were refused without a right of appeal. The appellants were invited to set out additional grounds in a one stop notice. A response was submitted in December 2014 and the Home Office asked for more information. A further decision was made by the Secretary of State on 26 February 2015. This was either a response to the "one stop" notice or reconsideration of the decision of 7 November 2014.

9) Mr Jafar submitted that only one application had been made by each of the appellants after the refusal of the first appellant's asylum claim. The statement of additional grounds made in response to the "one stop" notice was not an application. On the date of the application the second appellant was under 18.

10) For the respondent, Mr Avery questioned the legal basis for Mr Jafar's submission. The applications for further leave to remain were refused in November 2014 with no right of appeal. The Secretary of State treated the further representations as applications.

11) Mr Jafar submitted that it was the Secretary of State's policy to reconsider old applications if a request was made. Prior to 6 April 2015 where a request for reconsideration of a human rights or protection claim was refused, there would have been no right of appeal.

12) Mr Avery submitted that even if the judge had made an error there was still a test of reasonableness to be satisfied under paragraph 276ADE. Mr Jafar submitted that if the decision were to be re-made then the appellants would seek to lodge up-dated evidence, and he would seek a further hearing. Having heard the parties' submissions I reserved my decision on the question of whether the Judge of the First-tier Tribunal made an error of law.

Discussion

13) In his submission Mr Jafar correctly pointed out that the respondent's bundle did not contain all the relevant refusal decisions or notices of decision. I understood him to refer me to the appellant's bundle as completing the record of the appellants' immigration history.

14) With this in mind I was particularly concerned to examine the refusal decision of 7 November 2014 in respect of the second appellant, Benjamin, both in relation to the lack of a right of appeal and in relation to the "one stop" notice. I understood from the index to the bundle that this decision of 7 November 2014 to be found at page 80 of the appellant's bundle. When I examined the bundle, however, I found only the first page of this decision at page 80. There are two other pages, 81-82, which appear to be part of the same decision but on closer reading the text on page 81 does not follow from the text on page 80. It seems that I was supplied with only the first page of the decision of 7 November 2014 in respect of Benjamin and I am therefore not able to see what was stated by way of a "one stop" notice, or "one stop" warning as Mr Jafar referred to it, in that decision.

15) It is unfortunate that I was not aware of this difficulty at the date of the hearing. I see, however, that this bundle was prepared for the purpose of the hearing before the Upper Tribunal and I assumed that it would contain all of the relevant material. It does not do so. As will become apparent, however, the point was not material.

16) If it is assumed that the refusal notice of 10 November 2014 contained a "one stop" notice or warning, this would have been in the terms set out in section 120 of the Nationality, Immigration and Asylum Act 2002, prior to its amendment by the Immigration Act 2014, which was not at that stage fully in force. In its original version section 120 states:

(1) This section applies to a person if:

(a) he has made an application to enter or remain in the United Kingdom, or
(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.

(2) The Secretary of State or an immigration officer may by notice in writing require the person to state -

(a) his reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom

(3) A statement under subsection (2) need not repeat reasons or grounds set out in -

(a) the application mentioned in subsection (1)(a), or
(b) an application to which the immigration decision mentioned in subsection (1)(b) relates.

17) The additional grounds submitted on behalf of the appellants in response to a one stop notice are said to be copied at pages 103-113 of the appellants' bundle. The grounds contain references to case law and to policies of the Secretary of State but the grounds themselves are essentially made on the basis of private or family life, as were the original applications. Be that as it may, removal decisions were issued on 2 March 2015 by the Secretary of State in respect of both the mother and the son, each bearing a right of appeal, and each accompanied by a letter dated 26 February 2015 giving reasons for the decision. Each letter referred to the applications of 8 September 2014 as having been refused with no right of appeal on 7 November 2014.

18) Mr Jafar's contention was that the letters of 26 February 2015 were not made in response to fresh applications but were reconsiderations of the applications of 8 September 2014. This is certainly not apparent on the face of the letters, which each refer to the applications of 8 September 2014 as having been refused on 7 November 2014. For Mr Jafar to succeed in this argument he would have to satisfy me that any response to a "one stop" notice or warning under section 120, assuming section 120 notices were issued, is to be treated as part of the original application.

19) Mr Avery questioned the legal basis for Mr Jafar's argument and, indeed I was not referred to any legal authority at all by Mr Jafar in support of his proposition. On examining the Immigration Rules I see that various provisions are made in respect of applications from paragraph A34 onwards. Paragraph A34 refers to provisions of the Immigration Rules where there are specified forms and procedures for applications or claims. At paragraph 6 the Immigration Rules refer to the interpretation of the term "date of application" by reference, so far as might be relevant to this application, to paragraph 34G of the Rules. This is concerned with the date of submission or receipt of an application, however, and does not apply to the matters at issue in the present appeals.

20) The provisions at paragraph A34 and subsequent paragraphs are, however, subject to GEN.1.9 of Appendix FM, which states that, subject to certain conditions, the requirement to make a valid application will not apply when an Article 8 claim is raised. There is a further provision in the Immigration Rules, at paragraph 400, which states that where a person claims their removal would be contrary to Article 8 the Secretary of State has a discretion as to whether to require an application to be made under paragraph 276ADE or the relevant provisions of Appendix FM. Where an application is not required, the claim will be considered against the requirements of the Rules and if appropriate the removal decision will be cancelled.

21) It is clear from the refusal letters of 26 February 2015 themselves, at paragraph 7 of each letter, that the Secretary of State specifically considered the additional grounds under paragraph 400 of the Immigration Rules. No further application was required but it is also clear from the letters themselves that the Secretary of State did not consider the additional grounds to be part of the applications made on 8 September 2014 which, according to the Secretary of State, had already been refused on 7 November 2014.

22) I have to record that Mr Jafar's submission did not take me beyond the grant of permission by the Upper Tribunal in which the question was identified of whether the date of the applications was 8 September 2014 or 15 January 2015, and where it was observed that the point raised by the appellants was not likely to meet with success unless presented with much more clarity. In granting permission the Judge of the Upper Tribunal said there was just enough to allow a further debate. Having heard the further debate I found myself no further forward. Mr Jafar simply failed to show any basis in law for treating the additional grounds of January 2015 as part of the applications made on 8 September 2014, rather than as further representations leading to new decisions under paragraph 400. On the face of the letters of 26 February 2015 themselves it is stated by the Secretary of State that the representations were considered under paragraph 400 as claims that removal would be contrary to Article 8 and I accept that this was the proper position.

23) The conclusion I come to on this issue is that the Judge of the First-tier Tribunal did not err in law by treating the additional grounds of January 2015 as giving rise to a separate decision for each appellant not based upon the applications of September 2014. By 2015 the second appellant was over the age of 18 and therefore could no longer rely on the considerations of the Immigration Rules for those under the age of 18.

24) At the hearing Mr Jafar did not address me on the remaining portion of the application for permission to appeal, namely whether the judge erred in not differentiating sufficiently between the two appellants. As the grant of permission suggested, there would be some difficulty for the appellants in establishing an error in relation to this and, having read the decision of the Judge of the First-tier Tribunal I do not think that the decision can be faulted on these grounds. Although the judge deals briefly with paragraph 276ADE and Article 8 in respect of the appellants, as he treated the second appellant as being over the age of 18 neither appellant would succeed under paragraph 276ADE. As Mr Jafar correctly recognised, the appellants' case depended upon showing that the representations made to the Secretary of State in January 2015 ought to have been treated as part of the applications of 8 September 2014. He has not succeeded in doing this and accordingly the appeals will not succeed.

Conclusions

25) The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

26) I do not set aside the decision.

Anonymity

27) The First-tier Tribunal did not make an order for anonymity. I have not been asked to make such an order and I see no reason of substance for doing so.

Signed Date

Upper Tribunal Judge Deans