Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/13246/2015
IA/13242/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th December 2016
On 17th January 2017

Before

UPPER TRIBUNAL JUDGE KING TD

Between

Secretary of State for the Home Department
Appellant
and

mrs Karthika Selvakumar (first claimant)
miss Pavisha Selvakumar (second Claimant)
Respondents/Claimants

Representation:
For the Appellant: Ms Brocklesby-Weller, Home Office Presenting Officer
For the Respondents/Claimants: Ms Jegargjah, Counsel instructed by Amirthan & Suresh, Solicitors

DECISION AND REASONS

1. The main claimant is a citizen of Sri Lanka with her daughter as the second claimant.
2. The first claimant sought indefinite leave to remain, which was refused by the Secretary of State in a decision of 13th March 2015. Her daughter was refused in line with her mother.
3. The first claimant sought to appeal against that decision, which appeal came before First-tier Tribunal Judge Maka on 3rd March 2016.
4. Essentially the application had been refused by the Secretary of State on four major grounds. The first was that of maintenance. The second that of accommodation, the third in relation to the absence of an English language test and the fourth relying upon the fact of a previous caution seeking to implement paragraph 322 of the Rules and in particular (1C), (3)(iv).
5. The Judge, in a detailed determination, found in favour of the first claimant in relation to maintenance, accommodation and the English language test.
6. The Judge was in some difficulty however in considering the mandatory refusal set out in paragraph 332. The ground under 322(1C) was introduced in 2015 and provided as follows:-
"they have, within the 24 months prior to the date on which the application is decided, been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record".
7. Seemingly in July 2014 the first claimant had had an argument with her husband about her daughter who was refusing to eat. She smacked the daughter with a wooden spoon. Her husband became angry and phoned the police. She was detained and cautioned. Nothing further has happened.
8. The Judge expressed concern that a mandatory refusal should be implemented for an offence as minor as that. The judge was not entirely satisfied as to whether a caution amounted to "other out of court disposal" and even if so, whether it was fair and proper without more to evoke a mandatory refusal.
9. Having found in favour of the appellant in any event on three matters the judge allowed the appeal to the extent that the decision was not in accordance with the law. Thus the decision falls to be remade.
10. The Secretary of State mounted a challenge against the decision, not so much on the basis of the merits of the decision on which there has been no challenge, but on the basis that the judge was in error allowing the appeal to the limited extent that it remained outstanding before the Secretary of State for a fresh decision to be made. Section 86 of the Nationality, Immigration and Asylum Act 2002 was invoked which required the Tribunal to determine any matter raised as a ground of appeal and any matter which Section 85 requires it to consider. The case of Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC) was considered and cited. It said that the First-tier Tribunal no longer has the power to find a decision not in accordance with the law and remit the matter to the Secretary of State.
11. Permission was granted on that basis. Thus the matter came before me to determine the issue of error.
12. At the hearing Ms Brocklesby-Weller for the Secretary of State conceded that the grounds were mis-informed. It is accepted that the Judge was entitled to find that the decision was not in accordance with the law. Although it was not accepted that the Judge was entitled to send the matter back to the Secretary of State, nevertheless the obvious conclusion was that a new decision had to be implemented in order to give effect to the findings of fact by the Judge.
13. The area that was less satisfactory was the issue of paragraph 322. Ms Brocklesby-Weller conceded that the guidelines as to how that section should be implemented were not very clear and certainly and did not seem to draw any line as to a level of seriousness, which should operate before such mandatory refusal. Ms Jegargjah, who represented the claimants, invited me to find that reading the determination as a whole the judge had allowed that aspect of the appeal also, finding that it was not properly open to the Secretary of State to have applied paragraph 322(1C)(1)(b). Reading paragraph 51 of the determination I do not find that a definite finding was made, but one where concern was expressed as to the need of clarity from the Secretary of State, including an explanation of the basis of its application or otherwise. It was always open to a Judge, either to make a finding of fact or to indicate that finding of fact was not possible, as in this case.
14. I would simply concur with the concerns as expressed by the First-tier Tribunal Judge as to the proper and fair application of that requirement. If any misdemeanour, however trivial which receives a caution, is to found a mandatory ground of refusal, such seems to me to be altogether too draconian and too wide to have been seriously intended by the legislature. As a matter of common sense it would seem that there should be a minimal level of seriousness above which mandatory refusal follows and below which the exercise of discretion should be applied. In this case there was a slapping of a child once and without injury in the course of an argument and nothing more. It seems to me that if such should result in a mandatory refusal such as to frustrate any further application for leave, it serves to make a mockery of the legislative process. It is clearly a matter that is of concern as to whether that should properly apply to the first claimant in this particular case to frustrate her application for indefinite leave when she meets all the other requirements of the Rules. The request by the Judge for anxious consideration to be given on that matter seems to me to be entirely justified.
15. Given the concessions that have been made by the Entry Clearance Officer I do not interfere with the decision of the Judge. To that extent the appeal by the Secretary of State against that decision is dismissed. The decision shall stand, namely that the general decision of the Secretary of State was not in accordance with the law. To that extent the Claimants' appeal is allowed.
Notice of Decision
The appeal is appeal is allowed.
No anonymity direction is made.

Signed Date 16 Jan 2017

Upper Tribunal Judge King TD