Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12982/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26th September 2016
On 10th October 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MS NOkuthulo Thalitha MABUza
(aNONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr S Whitwell, Senior Home Office Presenting Officer
For the Respondent: Mr D Coleman, instructed by Lee Valley Solicitors.

DECISION AND REASONS
1. The application for permission to appeal was made by the Secretary of State but for the purposes of this appeal I shall refer to the parties as they were described before the First-tier Tribunal that is the Secretary of State as the respondent and Ms Mabuza as the appellant.
2. The appellant is a citizen of South Africa born on 29th May 1978 and the Secretary of State refused her application to remain in the United Kingdom on the basis of her private life under Paragraph 276ADE. First-tier Tribunal Judge Samimi allowed her appeal against that refusal on the basis of Article 8 outside the Rules. At paragraph 3 of the decision Judge Samimi recorded that Counsel for the appellant acknowledged that the appellant could not succeed under the Rules.
3. The Secretary of State's challenge rested on five different grounds as follows
(i) at [7] of her decision the judge relied on an historic error by the Home Office in failing to grant the appellant 'the usual three year?leave'. It was argued that this was a weighty factor relied upon by the judge in her assessment and it was incumbent on her to provide an explanation as no such error was conceded.
(ii) The judge relied on the appellant's compliance with the immigration rules but as a matter of fact the appellant became an overstayer on 9th March 2014 and ignorance of the Rules is not a defence.
(iii) The judge has used Article 8 as a general dispensing power Patel [2013] UKSC 72 and there are Rules which provide for an extension of leave on this basis. Her professional qualifications did not enhance her rights and Nasim and others (Article 8) [2014] UKUT 00025 (IAC) pointed to the limited utility of Article 8. If the appellant wished to pursue her employment in the UK she should make the relevant application. There was no disproportionate interference
(iv) The judge was required to consider all of the public interest factors under Section 117 and these were absent.
(v) Her private life could be reconstituted in her country.
4. At the hearing Mr Whitwell took me through the correspondence to show that in fact the Secretary of State had granted leave in accordance with the Rules and that there had been no error in the Secretary of State granting the period of leave for two years rather than three years. Mr Chohan relied on the fact that the appellant had relied on the immigration advice of the NHS which had a specialist department dealing with such matters.
5. In relation to ground (i) it is correct that the judge recorded at [7]
'? the appellant's current predicament has come about partly due to the error made by the Home Office in failing to grant her the usual three year Tier 2 (General) leave in line with the certificate of sponsorship by her employers the University College Hospital'.
The judge however then states at [7]
'In any event she has gained valuable training and experience in her field and I find that to remove the appellant from the United Kingdom would not only constitute a violation of her private life, in terms of her strong net work of friends and colleagues who have written in her support, but more importantly her employment where she has established herself as an extremely important and valuable member of a sensitive and highly specialist medical team. I find that the appellant's removal would mean that the NHS would lose an extremely valuable clinician, in whom substantial resources have been invested proceeds by having provided her with training and experience. The appellant removal would mean a loss of her skills and specialist training that this country clearly currently is clearly in need of. I find that these are exceptional factual reason pertaining to the appellant's private life, which would render the respondent's decision a violation of her private life. I have regard to Jasarevic v SSHD [2005] EWCA Civ where the CA found that a long period of living and working gin the UK may give rise to a private life engaging Article 8(1)'
6. The judge was clear that the matter was to be determined outside the Rules and gave reasons as to why she considered this matter exceptional. Even if the understanding of the grant of leave were an error the judge has nonetheless proceeded to make further findings in her decision which render this error of fact not material. The judge's use of the words 'in any event' show that the factor of grant of reduced leave was marginalised in her assessment. The judge clearly did not rely on this fact alone.
7. I note that there was argument that the appellant had become an overstayer but clearly the judge accepted that her overstaying was not a deliberate event, albeit that ignorance of the Rules is not a defence. The judge recorded and accepted at [5] of her decision the appellant explanation that she had erroneously believed that her visa had been valid from 8th March 2012 to 7th March 2015 in line with her work permit. Her work permit expired on 7th March 2015. She left the United Kingdom for a holiday on 13th December 2014 after her visa had expired (7th March 2014). Indeed as the appellant left the UK for South Africa for a short holiday only, this would have been a very surprising move had her overstaying been deliberate act, bearing in mind she had a job and purchased a home in the UK and she ran the risk of not being able to return. She only realised that that her visa had expired prior to 7th March 2015 and she had no leave to remain, when she returned to the UK after a holiday. She was then granted leave to enter the UK on her return on 14th January 2015 and almost immediately attempted to regularise her immigration status. It was open to the judge to take into account her explanation of her visa in her assessment.
8. I reject the argument that the appellant can gain a positive advantage from 'her skills and specialist training' but there is no doubt that the weight given to the public interest in immigration control can be ameliorated. The appellant had been employed as a Clinical Physiologist by University College since 2004 at University College Hospital. She was recorded by the judge to be highly qualified in her field and that her job is currently on the Home Office 'shortage of occupation list'.
9. It is correct that the appellant could return to make a formal application and that Section 117 was not specifically referred to but the judge identified at [8] that
'? there is ample evidence in the form of the appellant's 11 year work experience and training as a highly specialist Neurophysiology Clinician which would mean that not only the appellant's removal would violate a fundamental aspect of her private life in the form of her work, friends, and home but crucially in this case, it would constitute an unnecessary loss of a specialised and highly regarded clinician whose skills are of huge asset to the UK'.
10. As Lord Justice Richards stated in UE v SSHD [2010] EWCA Civ 975 at paragraph 44 as to how to approach contribution to the community
'I also agree that the authorities do not stand in the way of that conclusion. On its face, RU (Sri Lanka) expressly precludes reliance on contribution to the community as a freestanding factor. The possibility that contribution to the community could be relevant in other ways was left open by the decision. Scott Baker LJ, with whom I agreed, dealt by way of example, at paragraph 40, with its possible relevance to private life but he did not say that that was its only possible relevance. Pill LJ said in terms, at paragraph 43, that it could be relevant in other ways. One can certainly speculate what conclusion might have been reached if the case had been argued on the basis that contribution to the community should be considered not as a freestanding factor but as something that tended to reduce the weight to be placed on the public interest in effective immigration control; but the case was not in fact argued on that basis, the court did not rule on that basis and there was no binding decision on the point'
11. From a reading of the decision as a whole the judge was not merely using Article 8 as a general dispensing power as asserted in ground (iii). Judge Samimi identified that the appellant had been here living and working for 11 years for the NHS and had put down roots because of the 'long period of living and working in the UK' [7]. Although Section 117 of the Nationality Immigration and Asylum Act 2002 was not specifically quoted as noted in ground (iv) of the challenge, it is evident from the judge's findings that the appellant was fluent in English and was in work. She had never been a burden financially and not likely to be a burden on the United Kingdom. Indeed she had invested in purchasing a house and a mortgage.
12. Crucially, as identified by the judge and critical to her analysis was that this appellant, as Mr Whitwell graciously accepted, had remained in the UK legally for 10 continuous years. That is crucial in the assessment of the judge and that is weighed into the balancing exercise. I appreciate the reference to Nasim and others (Article 8) [2014] UKUT 00025 (IAC) but that decision was couched in terms of education and made with primary reference to students and their working lives. This is an appellant who had worked for 11 years with the NHS in a highly specialised field for the benefit of the public, had bought a home in the UK and to her knowledge and the accepted of the judge had always believed she had complied with immigration requirements. In general ignorance of such rules would be damaging to her case but clearly, and in the particular and exceptional circumstances, the judge found that the transgression did not weigh heavily in the scales against her when assessing the public interest. It was open to the judge to take this factor into account in the balancing exercise. The consequences of refusal did have consequences of such gravity contrary to the position of the appellant students in Nasim. Mr Chohan confirmed that he represented the appellant before the First-tier Tribunal Judge and that considerable time had been spent assessing the periods of leave spent by the appellant in the UK. This was recorded at paragraph 4 and at the start of the decision.
13. The judge at [4] recorded that the appellant entered the UK with leave on 21st February 2004 and she had leave extended until 8th March 2014. The appellant clearly did not realise that she was eligible to apply for 10 years residence at that point but this is a factor that the judge took into account when finally, having weighed various factors, made her decision. Although the appellant by the date of the decision could not succeed under the immigration rules the judge, nonetheless, in the specific circumstances undertook the relevant balancing exercise and evidently reduced the weight to be attached to the public interest in immigration control ultimately finding the decision to refuse her leave to remain to be disproportionate. With regard to the last ground (v) that her life could be reconstituted in her own country the judge clearly found that the appellant still had family in South Africa and had spent her formative years there she had spent 11 years in the UK, put down roots here and established a career which had made an outstanding contribution as a Neurophysiology Clinician as recognised by University College and further more had her home and friends here. Clearly the judge found that could not be easily reconstituted in South Africa.
14. The judge made a decision as to where the balance should be struck between the private and public interest in this matter and from a reading of the decision overall answered the first three questions of Razgar v SSHD [2004] UKHL 27 in the affirmative. On a further overall reading of the decision, I cannot locate an error of law particularly when bearing in mind the last two questions of Razgar which are as follows
If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
If so, is such interference proportionate to the legitimate public ends sought to be achieved?'
15. I am not persuaded that any error of fact is material such that there is an error of law or that the judge misdirected herself. The decision of the First-tier Tribunal Judge shall stand.

Upper Tribunal Judge Rimington Date 26th September 2016