Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10728/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25th July 2016
On 5th August 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

the Secretary of State for the home department
Appellant
and

MR TARIQUL ISLAM MINTU
(aNONYMITY DIRECTION not MADE)
Respondent

Representation:
For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondent: Ms A Torr, instructed by Howard Kennedy LLP

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 Mr Mintu as the appellant and the Secretary of State as the respondent.
2. The appellant is a citizen of Bangladesh born on 30th December 1983 and he appealed against the decision of the respondent of 3rd March 2015 to refuse to vary his leave in the United Kingdom under paragraph 276B of the Immigration Rules as he claimed ten years' continuous lawful residence in the United Kingdom. His appeal was heard by First-tier Tribunal Judge Hodgkinson who clearly set out the relevant Immigration Rules and the applicable burden and standard of proof between paragraphs 11 to 17 of his decision.
3. As set out by the judge it was the appellant's primary case that his period of residence in the United Kingdom was continuous. The detail of the background is best encapsulated by a recitation of the judge's own decision and I have highlighted key points by underlining. The nub of the matter is the Secretary of State's production, or rather otherwise, of a letter written by the Secretary of State and dated 8th June 2016.
4. The judge set out as follows:
"19. The respondent acknowledges that the appellant's period of residence in the United Kingdom was continuous from the date of his arrival as a student on 22 November 2004 until 2007 and, thereafter, again from some point after 21 September 2009, when the appellant submitted a fresh application, until the present time, the appellant's current leave having been extended by virtue of section 3C of the Immigration Act 1971. The period in dispute relates primarily to what occurred in 2009.
20. First, I would comment that there is no particular challenge to the appellant's credibility and the appellant's primary case essentially is dependent upon certain specific factors to which I refer below."
5. The judge then made a clear finding that the appellant had also established further leave until 30th June 2008 which did not appear to be challenged by the Secretary of State (paragraph 22).
"24. As indicated, the primary period in contention relates to the appellant's application submitted on 29 April 2009. It is the respondent's contention that that application was also rejected and it is common ground that further leave was not granted to the appellant at that stage because he omitted to answer one question on one page of the relevant application form; namely, specifically the appellant failed to confirm that he had never lived in Northern Ireland which, logically, bearing in mind his history, should have been obvious in any event to the caseworker who considered that application.
25. In any event, what then occurred is that, on 8 June 2009, the respondent wrote to the appellant, as a result of the appellant's failure to answer the question referred to, and, as indicated, the respondent contends that his application was rejected at that stage, thereby ending his leave, whereas the appellant's evidence is somewhat different. It is common ground that, on 15 July 2009, the appellant returned the rejected section of the form, with the single question answered, and that the respondent then refused that application, in any event, on 18 August 2009, on the basis that the appellant's submitted bank statements were more than a month old at the date of the application. Essentially, the respondent treated the appellant's communication of 15 July 2009 as a fresh application, whereas the appellant considered it to be a submission of corrected documentation in relation to his original application of 29 April 2009. Clearly, if the appellant's interpretation is correct, then his bank statements were not out-of-date whereas, if the respondent's interpretation is correct, then they were out-of-date.
26. The appellant's evidence, both oral and are set out in his statement, is actually to the effect that the respondents letter to him of 8 June 2009 was actually in identical format to the earlier letter of the respondent of 8 May 2007, whereby he was granted a period of time in which to correct the omission in his April 2009 application which, the appellant claims, he duly did and that, in reality, the respondent did not reject the appellant's April 2009 application but, rather, held it open for 28 days, pending the appellant rectifying the omission in question.
27. Unfortunately, the respondent's said letter of 8 June 2009 has not been produced. I am informed that the appellant has not retained a copy of that letter and the respondent has not produced it either. What is clear, from the documents before me, is that the appellant's solicitors despatched three subject access requests to the respondent, on 3 July 2015, 3 August 2015 and 3 September 2015, in which production of that letter was requested, and yet the respondent has still not produced it. Thus, whilst I acknowledge that the burden of proof lies upon the appellant, the contention raised by the respondent, to the effect that the appellant's said 2009 application was rejected by the respondent, has not been supported by the respondent producing a copy of the letter in question, despite a number of requests having been made for it to be produced. The appellant's evidence, which presented as credible to me in the manner of its delivery, is clearly to the effect that that letter, whatever the respondent understood by it, did not reject his 2009 application but, rather, gave the appellant time to remedy the omission referred to.
28. The above issue is clearly critical to the appellant's claim that his residence in the United Kingdom has been continuous since his arrival in 2004 and, linked to this, is the fact that the appellant's application was ultimately refused because he allegedly produced bank statements which were out-of-date, which contention, clearly, is incorrect, if I find that the relevant date of the appellant's application in 2009 was, indeed, 29 April 2009.
29. I would add that the situation has been further confused by the respondent, due to the fact that, on 16 July 2009, the respondent issued a letter to the appellant, in which she stated that his application had been approved, she then refusing that application on 18 August 2009 (see pp 32-33 appellant's main bundle)."
6. At paragraph 30 the judge makes a clear finding of fact that the respondent did not reject the appellant's application of 29th April 2009 but, rather, simply asked the appellant to remedy a small deficiency in that application which he duly did. The judge found therefore he had accrued ten years' lawful residence.
7. Further the judge made reference, albeit obliquely, to paragraph 276B(ii) with his findings at paragraph 31 stating that there was no specific contention by the respondent that there were any countervailing factors which would warrant the refusal of leave to the appellant on suitability grounds, there being no contention at all that the appellant has a criminal record. I will return to this point later in the decision.
8. The decision of Judge Hodgkinson was challenged by the Secretary of State contending that the judge had reversed the burden of proof and that the First-tier Tribunal Judge's requirement that the Secretary of State evidenced the invalidation of the April 2009 application was a material error of law. It was stated:
"Whilst the letter of 8/6/09 was not before the Tribunal it is highly material to any future hearing that the letter did not afford the appellant with a 28-day grace period as alleged by the appellant. The letter in question (as attached) categorically records the appellant's application of 29/4/09 as invalid."
9. In the alternative it was asserted that the Secretary of State did not consider the public interest requirement under paragraph 276B(ii) as the appellant failed to meet 276B(i) and this was evidenced by the refusal letter which was silent in respect of the same.
10. The matter came before Upper Tribunal Judge C Lane and Deputy Upper Tribunal Judge McGinty who adjourned the hearing directing that the 8th June 2009 letter was highly significant but had not been served in accordance with Rule 15(2A) of the Tribunal Procedure Upper Tribunal Rules:
"(a) if a party wishes the Upper Tribunal to consider evidence that was not before the First-tier Tribunal, that party must send or deliver a notice to the Upper Tribunal and any other party -
(i) indicating both the nature of the evidence; and
(ii) explaining why it was not submitted to the First-tier Tribunal; and
(b) when considering whether to admit evidence that was not before the First-tier Tribunal, the Upper Tribunal must have regard to whether there has been unreasonable delay in producing that evidence."
At that hearing Mr Kotas was not in a position to properly explain why the letter of 8th June 2009 was not submitted to a First-tier Tribunal Judge nor was he able to take full instructions in respect of what was argued by Ms Torr to have been a six month delay between the claimant's request for a copy of the letter and its ultimate disclosure.
11. At that hearing the Tribunal noted in the interests of justice that a full and properly served written 15(2A) notice should be put before the Tribunal and equally that such a notice:
"is also delivered to the claimant such that Ms Torr has the opportunity of fully dealing with it. Given that this is an extremely important document in this appeal it is important that proper consideration be given as to whether or not such a document should be admitted in evidence before the Upper Tribunal."
12. The matter was adjourned and three directions were given:
(1) The error of law appeal hearing is adjourned.
(2) The error of law appeal hearing is to be relisted before Upper Tribunal Judge Rimington on 25th July 2016 at 10am sitting at the Upper Tribunal (Immigration and Asylum Chamber) Field House, 15-25 Breams Buildings, London, EC4A 1DZ.
(3) The Secretary of State shall send and deliver a Rule 15(2A) notice to the Tribunal and to the claimant by 4pm on 11th July 2016. No application under Rule 15(2A) shall be admitted if not made by that time and date.
13. At the hearing before me Ms Torr submitted that no Rule 15(2A) notice to the Tribunal was delivered by the said date and she produced a fax from Howard Kennedy dated 12th July 2016 to the Immigration and Asylum Chamber confirming that point. A copy of an attendance note dated 13th July 2016 detailing a telephone conversation between the Howard Kennedy representative and the Secretary of State in which it was stated that a letter dated 8th July 2016 was sent to the Tribunal and Howard Kennedy which appeared to have been a Rule 15(2A) notice.
14. Ms Torr at the hearing before me confirmed that nothing had been received from the Home Office by letter and that finally a copy was emailed.
15. As I pointed out to Mr Tufan the direction from the Tribunal was very clear that the 15(2A) notice was to be delivered to both the Tribunal and to the other party. I also note that the document said to be the Rule 15(2A) response did not comply with the Rule 15(2A) in giving an explanation as to why the production had not been complied with before the First-tier Tribunal.
16. It is quite clear from the decision of Judge Hodgkinson from paragraph 27 of his decision, and which I have identified above, that the appellant's solicitors dispatched three subject access requests to the respondent on 3rd July 2015, 3rd August 2015 and 3rd September 2015 in which production of this letter was requested and yet still the respondent did not produce it.
17. As Ms Torr submitted at the hearing before me, the Secretary of State failed to comply with three directions in relation to production of the 15(2A) notice. First when the actual application for permission letter was sent there was no formal application under Rule 15(2A). Secondly when permission was granted, a direction was issued to the extent that if additional notice was to be served then Rule 15(2A) should be complied with within 21 days of that notice. And thirdly the last and final direction which has been set out above.
18. It is clear to me that the Secretary of State failed to comply with any of these directions and therefore I refused to admit the further evidence in relation to the letter of 8th June 2015.
19. I find that Judge Hodgkinson has directed himself to the burden and standard of proof and I would further note that the principles in Ladd and Marshall [1954] I WLR 1489 as encapsulated in R (Iran) [2005] EWCA Civ 982 paragraph 32 that:
"The decision of the judge could only be overturned by the use of further evidence if it could be shown that
(1) the new evidence could not with reasonable diligence have been obtained for use at the trial (or hearing);
(2) the new evidence must be such that, if given it would probably have an important influence on the result of the case though it need not be decisive; and
(3) the evidence was apparently credible although it need not be incontrovertible."
20. It is clear that the new evidence could, with reasonable diligence on the part of the Secretary of State, have been obtained and indeed it was requested. The judge gave adequate and full reasoning as to why he proceeded on the basis that he did in terms of each party evidencing the facts they asserted and as such I am not persuaded that he has erred in law.
21. The authority Nixon (Permission to appeal: grounds) [2014] UKUT 00368 confirms the importance of the parties specifying clearly and coherently with appropriate particulars the errors of law said to contaminate the decision under challenge. It is clear in this instance that the Secretary of State has, despite being in a position to comply with the direction, failed to do so and this does in fact place unnecessary demands on the judiciary and as stated "poorly complied applications risk undermining the important value of legal certainty and causing unfairness to the other party".
22. It is quite clear from the application that no explanation was given by the Secretary of State as to why the letter had not been placed before the First-tier Tribunal in the first place despite numerous requests by the appellant's representatives.
23. I turn to consideration of paragraph 276B(ii). Ms Torr submitted that she had drawn the First-tier Tribunal Judge's attention to the CID notes which themselves had addressed paragraph 276B(ii). That, as Mr Tufan indicated, would not necessarily by itself indicate that the Secretary of State had indeed considered the second limb of paragraph 276. I acknowledge that the Secretary of State is the primary decision maker but it is clear that the Secretary of State sets out in her letter of 3rd March 2015 the full Rule and made no reference to the appellant failing to comply with that section. Despite the contrary assertion in the respondent's grounds, the refusal letter quotes the entirety of paragraph 276B and is followed by the passage found at page 2 of 5 of the refusal letter (page 6 of the appellant's bundle) which states "your application has been considered on the basis of the above Rules, in particular paragraph 276B(i)(a)".
24. The one point taken by the Secretary of State was the point of continuous leave. To that extent I find that the judge's decision to proceed to consider the matter in full at paragraph 31, as I have set above, indicates that it was open to him to proceed with his final decision that the appeal was allowed in respect of the Immigration Rules. The judge clearly states that there is no specific contention by the respondent that there are any countervailing factors which would warrant the refusal of leave to the appellant on suitability grounds. To that extent the judge considered that the Secretary of State had addressed her mind to that point of discretion and proceeded, without any error of law, to make a substantive decision.
25. I therefore find there is no material error of law in the decision of First-tier Tribunal Judge Hodgkinson and the decision shall stand.

No anonymity direction is made.

Signed Date 3rd August 2016

Upper Tribunal Judge Rimington