Tribunal decisions

The decision

IAC-AH--V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11242/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 November 2016
On 7 November 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

Mr nadeem shaukat
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J L Blair, counsel instructed by Malik & Malik Solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Raymond, promulgated on 22 April 2016. Permission to appeal was granted by First-tier Tribunal Judge PJM Hollingworth on 15 September 2016.

Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. The appellant arrived in the United Kingdom on 12 October 2004 with leave to enter as a student valid until 31 December 2006. That leave was sequentially extended in the same capacity until 10 August 2010. On 9 August 2009 the appellant unsuccessfully sought further leave to remain as a Tier 4 migrant. His appeal against that decision was allowed, following which he was granted leave to remain until 22 December 2011. That leave was extended until 12 July 2013 but subsequently revoked to expire on 22 January 2013 as the sponsor's licence was revoked. On 11 December 2012, the appellant sought further leave to remain as a Tier 4 migrant. That application was refused on 26 February 2013. His appeal against that decision was unsuccessful and his appeal rights exhausted on 12 May 2014.
4. On 20 May the appellant unsuccessfully sought permission to apply for judicial review. On 21 July 2014, the appellant made a human rights application, which was refused with no right of appeal on 10 October 2014. On 20 October 2014, the appellant applied for indefinite leave to remain in the United Kingdom on the basis of long residence. It is the refusal of this application which is the subject of this appeal.
5. The Secretary of State refused the application under paragraphs 276B(i)(a) and (v) because the appellant had not had at least 10 years' continuous lawful residence in the United Kingdom and because he had overstayed in excess of 28 days after his leave expired on 12 May 2014 and prior to making the application on 21 July 2014 as well as the fact that his total period of overstaying amounted to 161 days. The respondent decided not to exercise discretion in his favour regarding the gap in his lawful residence. The application was also considered under Appendix FM to the Rules on the basis of the appellant's private life, however he was considered not to meet any of the requirement of paragraph 276ADE(1) of the Rules and there were said to be no exceptional circumstances.
The hearing before the First-tier Tribunal
6. At the hearing before the First-tier Tribunal on 11 September 2015, only the appellant and his friend Qasir Akhbar Malik gave oral evidence. The judge found that the appellant could not meet the 10-year residence requirement and that the respondent was right not to exercise discretion in his favour regarding the period of overstaying in excess of 28 days. The judge considered the appellant's claimed relationship with a married mother of two but found that he was unable to meet the requirements of the Rules relating to partners. He also dismissed the appeal on human rights grounds outside the Rules.

The grounds of appeal
7. The appellant's grounds of appeal were in the form of a statement signed by the appellant. In essence, he disagreed with the judge's findings regarding his lack of progress in his studies and rejection of his claimed relationship. He highlighted the delay between the hearing and the decision and reasons being promulgated and argued that the judge had misunderstood some of his evidence.
8. Permission to appeal was granted on a different basis to the issues raised by the appellant, namely that the proceedings were unfair because of the absence of evidence from the respondent and a Home Office presenting officer.
9. The respondent's Rule 24 response was received on 11 October 2016. The respondent opposed the appeal and submitted that the First-tier Tribunal judge appropriately directed himself by addressing the claim under the Rules; the claim that the appellant's previous solicitors had been negligent as well as Article 8, by giving cogent reasons by reference to the documentary evidence before the Tribunal.
The hearing
10. Ms Blair relied on her skeleton argument submitted immediately prior to the hearing. She confirmed that the appellant drafted his own grounds and that the judge granting permission had drawn out one point which was arguable, relating to the evidential void as to the appellant's education history. She argued that the respondent had raised no credibility issues in relation to the application for discretion to be exercised the appellant's favour over the 5-month gap in his residence.
11. Ms Blair submitted that the appellant could not have known that the judge would take an adverse view of his studies and she asserted that the appellant's original certificates were with the Home Office. At [28], the judge referred to the "meagre" bundle from the respondent. The basis of the appellant's request for discretion was an error by a previous representative. She argued that the judge acted in a manner which was procedurally unfair, in that he ought to have adjourned the appeal for the Home Office to be represented. Ms Blair advised me that it was her understanding that the issues of (as she put it) dishonesty raised by the judge were never put to the appellant. On this, she conceded that there was no note nor record of the hearing from the appellant's representative at the First-tier and that it was difficult to ascertain this from the judge's decision.
12. Ms Blair relied on Devaseelan [2002] UKIAT 000702, arguing that the judge failed to take into consideration a previous favourable decision. She conceded that this decision was not before the judge and she was unable to state what the issue in the previous appeal was and why the appellant had succeeded. Ms Blair also conceded that the appellant had lost a previous appeal. She emphasised that credibility was not raised in the notice of decision and it was not open to the judge take it into issue. This indicated a lack of anxious scrutiny to the Article 8 findings. The judge made a series of assumptions and justice was not seen to be done.
13. Mr Avery reminded me that the appellant did not meet the long residence Rules and he also had to make out a case as to why discretion should have been exercised differently. The appellant had not shown that the Secretary of State erred in not using her discretion in his favour or that there were compelling reasons for granting leave to remain outside the Rules. He argued that it was a misreading of the decision to say that the judge blamed the respondent for the gaps in the evidence. At [27], the judge said that the appellant should have provided it. If the appellant wished to rely on a previous decision, he should have produced it and not the respondent.
14. The judge's adverse findings did not solely relate to the appellant's education but encompassed other aspects of his case as well. Mr Avery asked me to note that the appellant was represented at the hearing and if there had been an issue about a lack of evidence or other issues arising from the appellant's evidence, an adjournment could have been sought. The appellant's representative on the day ought to have been alive to the issues presented by the evidence and addressed them in submissions. In his grounds of appeal, the appellant admitted the potential for misrepresentation as to the evidence in relation to ACCA. The judge made proper findings regarding the appellant's relationship to his witness, absence of evidence of where funds emanated from and inconsistences regarding the appellant's claimed partner. He asked me to note that no objection had been made to the judge's handling of the appeal on the day, there had been no request for an adjournment and even at the error of law hearing, there was no further evidence to support the appellant's claims of unfairness.
15. In reply, Ms Blair maintained that the appellant's certificates were with the respondent; that the appellant's representative was not aware what was in issue at the end of the hearing and in asking for additional documents to be sent following the hearing, the judge had not asked for educational certificates. It was irrelevant whether another judge would come to a different decision owing to the unfairness.
16. At the end of the hearing, I reserved my decision as to whether or not there was a material error of law.
Decision on error of law
17. It is obvious from a proper reading of the judge's decision that it was the evidential void in the documents submitted by the appellant which was referred to at [27] of the decision. It was the appellant's case, as set out in his witness statement, that he would have sought further leave to remain as a student before his section 3C leave expired had he known that the judicial review application did not further extend his leave. He also stated that he hoped that he would not be denied the chance to finish his present studies. The judge did not err in considering the case put forward by the appellant. Furthermore, it is apparent from [23-26] that the judge raised his concerns as to the lack of progress or achievement during the many years during which the appellant had been residing in the United Kingdom, mainly as a student. The appellant was not prevented from responding to the issues raised by the judge in relation to his education.
18. On the contrary, as a result of appellant explaining that he was taking various ACCA papers but did not have any evidence of this with him, the judge gave him a further 7 days to submit it and proceeded to consider the evidence which was sent after the hearing [26]. In the same paragraph, the judge writes that it was unclear what a "CBE" was; there was a question mark as to what the "ABE" qualifications were and he also noted that no performance objectives were completed and in relation to time "0 out of 36 months completed." It is in the next paragraph that the judge refers to the evidential void in this appeal. He did not err in doing so, given that evidence sent by the appellant after the appeal left many questions unanswered. The judge's reference to the meagre respondent's bundle was more of an aside and at [29] he returned to the theme of the failure of the appellant's current representatives, in obtaining his full file from the previous representative or to seek an intervention from the Law Society in order to do so.
19. The point made by Ms Blair regarding the appellant's original certificates is not supported by any evidence. The judge does not appear to dispute the claim that the appellant was awarded a series of unremarkable diplomas during the first 9 years of his residence in the United Kingdom. Indeed, at [23] he comments on a number of certificates submitted by the appellant, commenting that this was "possibly the least that could have been expected after night on 9 years of studying in the UK." As Mr Avery submitted, there is no evidence of any complaint by counsel at the hearing as to procedural unfairness. There are no notes of the hearing from counsel on the day, no subsequent witness statement and the appellant's solicitors made no complaint about the hearing when they took advantage of the judge's offer to consider a substantial quantity of additional material after the hearing. While it is true to say that the refusal letter did not raise credibility, the judge cannot be criticised for his assessment of the evidence before him regarding the appellant's education, the bulk of which related to the appellant's claim for leave to remain on human rights grounds outside the Rules.
20. Ms Blair focused on the evidential void remarked upon by the judge in relation to the appellant's education in the United Kingdom. Yet this was far from the only issue in the appeal. The judge set out detailed criticisms of the evidence, both documentary and oral, of the witness, Mr Malik. I am satisfied that these issues were also drawn to the attention of the appellant's representative because a significant amount of material was sent to the judge following the hearing which related to Mr Malik's business.
21. The judge also noted a large number of inconsistencies in relation to the appellant's claimed relationship with a Ms Kalsoom, who did not attend the hearing. There is no criticism made in relation to these findings. Similarly, there are no criticisms of the judge's findings in relation to the appellant's claim to have been disinherited by his family.
22. This was not a case where the judge reached findings on adverse matters without giving the appellant an opportunity to respond or his representative to make submissions.
23. The judge's decision and reasons expressly refers to questions put by the judge to the appellant. While the representatives' submissions are not set out in the decision, there is no requirement of the judge to do so. In any event, there is no evidence to support the submission that there was no opportunity to respond to matters raised by the judge during the course of the hearing. Ultimately, the appellant put the subject of his past and future education into evidence along with a number of other matters. In these circumstances, it matters not that the respondent took no issue with his education history. The judge made no error in assiduously assessing that evidence. In fact, at [56], the judge, after discussion of the appellant's criticism of his previous solicitors, his studies and the substantial income he had accumulated in the United Kingdom, made a global, favourable finding that "the appellant was honest and credible in this context." The judge's mention of dishonesty is solely in relation to the appellant's evidence regarding why he required additional time in the United Kingdom. This evidence was that his ACCA would be finished within a year of the hearing, that his witness needed his help and that he had been disinherited. I find that the appellant had the opportunity to respond to all these matters both during and after the hearing, if necessary. Indeed, the additional documentary evidence submitted by the appellant after the hearing seriously undermined at least two aspects of his claim.
24. Ms Blair's written submissions argue that the appellant would not have been prepared to talk about his educational background at the hearing as this matter was no in issue. On this, I find that the appellant ought to have been in a strong position to tell the judge what he had achieved in the United Kingdom following such a protracted period as a student. In fact, the appellant was able to respond to the judge's enquiries and submit further evidence post-hearing. I, therefore, consider there to be no force in this submission. The issue as to the whereabouts of the original certificates is in fact a non-issue. The judge did not dispute that the appellant had been awarded them, only that they were of little real value, concluding at [54], "The appellant was allowed entry to study, and it is not possible to see, quite simply, that he has put this to good use for some 9 years plus."
25. There is no challenge to the judge's finding at [56] that the appellant had not achieved 10 years' lawful residence at the time of the application and thus it was not possible to see how discretion could be exercised. This was indeed the case. In reality, there was no gap in the appellant's residence, just a failure to reach the 10-year point because his appeal rights were exhausted 5 months before the application was made. Accordingly, the judge's multiple adverse findings were more relevant in relation to the appellant's Article 8 claim outside the Rules. After a lengthy and careful assessment of all the evidence, the judge concluded that none of the requirements of the Rules were met, that there were no exceptional circumstances and that the decision to remove him was proportionate, considering section 117B of the 2002 Act, as amended. The judge's consideration of the appellant's academic non-achievement formed only part of that assessment. The judge's findings were entirely open to him.
26. Permission was not granted in relation to the delay point and I heard no submissions in relation to this, albeit there is a brief reference to it in Ms Blair's skeleton. I will say that the length and detail of the decision in question, including many references to the oral evidence gives no indication that the length of time between the hearing and promulgation of the decision led to any error on the part of the judge.
27. The decision of Judge Raymond is upheld.

Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The decision of the First-tier Tribunal is upheld.

Signed Date 4 November 2016

Upper Tribunal Judge Kamara