Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13531/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 4th November 2016
On 23rd November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

ms viviene e ifeme
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss K Rahman (Counsel)
For the Respondent: Mr D Mills (HOPO)

DECISION AND REASONS
1. The Appellant is a female, a citizen of Nigeria, who was born on 29th July 1986. She appealed to the First-tier Tribunal against the decision of the Respondent dated 21st January 2014, rejecting her application for a variation of leave to remain in the UK under Her Majesty's Armed Forces Concession outside the Rules. The Appellant had also relied on family and/or private life established in the UK pursuant to Article 8.
2. The Appellant's appeal was heard by First-tier Tribunal Judge Phull at Birmingham, Sheldon Court.
3. The background to this appeal is that the Appellant had entered the UK to study real estate management at postgraduate level for twelve months. She graduated in 2013. She has a brother who is in the British Army. In February 2012, accordingly, she attended her brother's passing out parade, and this motivated her to join the armed forces herself. She then made an application to join the British Army in August 2012. There is a three stage mandatory assessment process which the army carries out. The Appellant participated in the first two of these mandatory processes. She participated in the "recruitment battery test" and she participated in the "physical pre-development test" and in both cases she attained the grade of Distinction. She was unable to complete the third test because her visa was about to expire and the army would not let her take the third test.
4. A recruiter agent by the name of K T Woodhouse, was assigned to her in the circumstances, and this agent wrote a letter to the Home Office asking them to extend her visa because her application with the armed forces was on the verge of being approved. On 13th December 2012, she made her application to the Home Office. She did not hear anything for over twelve months. She persisted in contacting the Home Office regularly. In July 2013 the army wrote to her that new rules in policy had come into force. Under the new rules, she had to have lived in the UK for at least five years in order to join the army. The Appellant, however, had applied to join the army before the new rules had come into force. She expected a decision from the Home Office prior to the change in the new rules. However, given that her application was pending for seven months before the new rules came into force, the Appellant simply withdrew her application because of the delay in the Home Office in responding to her application.
5. Before Judge Phull, there was evidence that the Appellant's brother was in the British Army and was based in Germany. Her brother submitted a letter of support for the Appellant's application. He was Nigerian by birth but joined the army in 2010 and now had a UK residence permit since 2011. The judge also heard evidence how the Home Office had taken a very long time to make a decision, after the Appellant had passed her first two tests, and notwithstanding the appointment of an assigned recruiter by the name of K T Woodhouse, and even though she had approached her MP who wrote a letter to the Home Office about the delay (paragraph 13).
6. The Appellant's main argument before the Tribunal was that if the Appellant's application had been timeously determined by the Home Office then a different rule in policy would have applied rather than the latest one and her visa would have been extended and she would now have been in the army (paragraph 14).
7. The submissions by Counsel before the Tribunal were that the Respondent Secretary of State had failed to apply its policy fairly to the Appellant because she had applied for an extension of her visa in December 2012. At the time of this application the Armed Forces Exemption Policy, found at paragraph 3, chapter 15, section 1 of the Immigration Directorate Instructions of April 2009, was in force. This is the policy that should have been applied to the Appellant. From 11th July 2013 the eligibility to enlist in the armed forces changed requiring Commonwealth nationals to demonstrate that they held five years' residence in the UK at the time of their initial application to enlist. Secondly, and even though the policy of 11th July 2013 required a five year residence period, there were exceptions to the requirement of five year residence. Judge Phull noted in her determination that, "The Appellant has submitted a letter from the army dated well before 11th July 2013 to show that she did have confirmation of a training place for the third part of her test to join the army" (paragraph 17).
8. In her determination of the appeal, Judge Phull noted that the rules here were not a complete code because they did not fully address the private and family life issues arising in a case such as the present (see paragraph 25). She found the Appellant to be a credible witness giving her evidence in a candid and frank manner. She held that on a balance of probabilities, the Appellant completed her postgraduate studies in 2012 and she graduated in 2013. She had established ties with her educational institution, tutors and peers. She also applied to join the British Army in August 2012 whilst she was still studying. The judge observed that,
"During the course of her application she attended tests with the army and liaised with the army recruiter. I find she satisfies that during her stay in the UK she has established some private life ties, such as to engage Article 8 of the ECHR" (paragraph 28).
The judge then went on to hold that the failure to refer to the applicable policy in the decision letter meant that the decision could not be in accordance with the law (paragraph 29). The judge went on to consider the armed forces policies of 2009 and 2015. Under the 2009 policy the Appellant would have been eligible to apply. More importantly, however, under the Armed Forces Exemption from Immigration Control Policy, dated 27th November 2015, it was clear that there were exceptions to the requirement of five years' residence, and one of these was evidence from the Ministry of Defence dated 11th July of either "a written valid job offer; confirmation of her training place; a confirmed date to attend an assessment centre; a confirmed date to attend a psychometric test ..." (see paragraph 31 of the determination).
9. Given that it was not in dispute that the Appellant had made an application for leave to remain under the Respondent's Armed Forces Exemption Policy of April 2009, which was in force on 13th December 2012, the judge held that, not only did the Appellant satisfy the exemption policy in this regard, but also satisfied the exemption policy after the policy's amendment on 11th July 2013,
"Because she had prior to 11th July 2013, a confirmation of her training place to attend an assessment centre and had already successfully sat and passed the British recruitment battery test, a pre-development assessment and passed an interview with K T Woodhouse the Army Recruiter for Commanding Officer. A letter from K T Woodhouse of 26th November 2012 supports the fact that the Appellant had undertaken and passed the two tests (page 12 of the Appellant's bundle)" (see paragraph 32 of the determination).
10. The judge ended with the observation that although the Respondent Secretary of State argued that the army had withdrawn the policy the fact was that the Respondent did not make a decision on the Appellant's application until 21st January 2014, several months after the 11th July 2013 policy came into force and that, "The refusal however failed to consider the 2009 policy or the exemption grounds contained in the 2015 policy, under which the Appellant's application also falls" (paragraph 35).
11. The appeal was allowed.
Grounds of Application
12. The grounds of application state that the Appellant would not have been entitled to leave to remain under the armed forces policy and a reliance upon Article 8 was misconceived because Article 8 was not a general dispensing part and there is nothing special about the Appellant's case here.
13. On 26th August 2016, permission to appeal was granted. It was, however, granted with the observation that,
"It appears that the Respondent delayed consideration of the Appellant's original application, made as long ago as 2012, by which time different Regulations applied and on the basis of those different Regulations it was said the Appellant no longer met them".
Nevertheless, the Respondent's claim was arguable that the policy did not apply until the Appellant had in fact enlisted and to that extent the decision by the Tribunal below was flawed.
The Hearing
14. At the hearing before me on 4th November 2016, Mr Mills, appearing on behalf of the Respondent as a Senior Home Office Presenting Officer, made the following three submissions. First, the applicable policy at the time of the decision was the 2013 policy requiring five years' residence. This was not the Home Office's policy but the Ministry of Defence's. When the policy changed on 11th July 2013 it stood to be implemented. Second, the Appellant did not have a job offer even at the date of the application. The letter from Sergeant K T Woodhouse simply confirms that the Appellant's application is currently going through its normal process. There is no job offer. There is no confirmation of training taking place. The judge wrongly concluded that the decision was flawed because there had been a failure to apply the 2009 or 2015 policy. Third, the judge was also one to allow the appeal under Article 8 because when people come to the UK on a temporary visit it is perfectly reasonable to expect them to leave at the end of that visitor and at paragraph 20 the judge does not address this point.
15. Mr Mills asked me to make a finding of an error of law, to set aside the decision, and to remit it back to the First-tier Tribunal. He also stated that given that the Appellant had now completed five years' lawful residence in this country, she could make an application again in any event.
16. For her part, Miss Rahman submitted that there was no error of law. This was for two reasons. First that the Appellant succeeded under the Armed Forces Exemption from Immigration Control Policy. This is because of a letter of 11th July which highlighted the fact that the Appellant had undergone training and had attended an assessment centre. She had already successfully sat and passed the British recruitment battery test, a pre-development assessment, and passed her interview with K T Woodhouse, who was the army recruiter for a commanding officer. This was expressly referred to by the judge a paragraph 32. Second, as far as Article 8 was concerned, the judge had made a finding of fact that the Appellant had established ties with an educational institution, her tutors, and her peers, since 2011 over a period of four years, and that her attendance at tests with the army and the army recruiter. It was in this respect that the balance of considerations fell in favour of the Appellant in consideration of the proportionality question.
No Error of Law
17. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows. It is clear that the refusal letter makes no reference whatsoever to any of the applicable policies. Mr Mills submitted that there was no policy applicable at the date of the decision. The website for the MOD does not show the 2009 policy. Miss Rahman had submitted that, even if the policy could not be found, it must have been in effect, because there cannot be a void on the part of the MOD, at a time when the recruitment process was under way, and people were applying to join the army, such that some policy or other must have been in effect.
18. What is important, is that the letter from Sergeant K T Woodhouse of 26th November 2012 does confirm that the Appellant was undergoing an assessment process, and had completed two stages of that, but the third stage could not be completed because the Appellant's leave would expire in four months. This is important because, as the judge pointed out (at paragraph 31) the Armed Forces Exemption from Immigration Control Policy dated 27th November 2015 refers to an exemption as one where there is a valid job offer, confirmation of a training place, or a confirmed date to attend an assessment centre, or a confirmed date to attend a psychometric test, and these requirements were fulfilled by the Appellant if a reasonable and sensible approach is taken to the interpretation of the policy.
19. Moreover, it is not without significance that there was several months delay in the making of the decision against the Appellant, during which time the applicable policy changed, although the relevant policy at the time of the application would have been the 2009 policy. Paragraph 3 of the 2009 policy states that, "A person admitted in another capacity (e.g. visitor, student) who wishes to join HM Forces should be advised to contact them directly - enlistment is entirely a matter for the armed force concerned".
20. Miss Rahman drew my attention to this provision at paragraph 37 of her skeleton argument. In this respect, had there been a timeous decision, and the Appellant's visa been extended by an early decision, enlistment would have continued because the armed forces were already in the process of doing so, having seen the Appellant go through two tests, where she emerged with a Distinction, and where she only had one remaining test to undergo.
21. As far as Article 8 is concerned, the judge considered the Article 8 rights of the Appellant in the context of the fact that the Appellant had been in the UK for four years and "has established ties with an educational institution, tutors and peers", such that "she attended tests with the army and liaised with the army recruiter" (paragraph 28), and this was a matter that the judge did consider in the context of paragraph 117A-C of the 2002 Act, where the maintenance of immigration control is set down as being in the public interest. The judge observed of the Appellant that, "She made an in time application and her leave therefore continues under Section 3C and I find that her private life ties have been established while she has had lawful leave in the UK" (paragraph 34). The judge was entitled to come to this conclusion.
Notice of Decision
22. There is no material error of law in the original judge's decision. The determination shall stand.
23. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 23rd November 2016