Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA138752015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th June 2016
On 14th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

[R A]
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss F Shaw, Counsel, instructed by Adam Bernard Solicitors
For the Respondent: Mr D Mills, Home Office Presenting Officer

DECISION AND REASONS

1. For ease of comprehension, the parties are referred to by their status before the First-tier Tribunal.
2. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Housego allowing the Appellant's appeal against the Secretary of State's decision refusing to vary leave to remain as a Tier 4 (General) Migrant. The First-tier Tribunal promulgated its decision allowing the Appellant's appeal against the Respondent's decision on 4th December 2015.
3. The Respondent appealed against that decision and was granted permission to appeal by First-tier Tribunal Judge Ford. The grounds upon which permission to appeal was granted may be summarised as follows.
(i) It is arguable that the judge erred in concluding that the Appellant should be granted a further 60 days discretionary leave in order to identify another sponsor;
(ii) It is also arguable that the judge's consideration of the engagement of Article 8, proportionality and Section 117 of the Nationality, Immigration and Asylum 2002 Act may have been incomplete.

Error of Law
4. At the close of submissions I indicated that I would reserve my decision which I shall now give. I find that there is no error of law in the First-tier Tribunal's decision such that the decision should be set aside. My reasons for so finding are as follows.
5. Mr Mills for the Respondent accepted that although the Appellant had received a "60 day letter", he was diagnosed with paranoid schizophrenia and the judge found that he was unable to remember what happened and was unable to understand the letter when it was received, and indeed his mental health did not improve until the start of the appellate proceedings.
6. It is complained that the judge failed to apply the Supreme Court's decision in Patel & Ors v Secretary of State for the Home Department [2013] UKSC 72 (hereinafter "Patel") but acknowledged that it had regard to it at paragraph 30 of the determination. I find that there is no merit in this criticism. The judge has cited from [56-57] of Patel that went in the Secretary of State's favour explicitly at paragraph 30 of his determination and was obviously aware of that dicta and implicitly applied it in his determination. The judge nonetheless finds that Article 8 was engaged notwithstanding that dicta. It is important to note that the judge allowed the Appellant's appeal on several bases, namely on human rights grounds, under the Immigration Rules, and to the extent that the Secretary of State should now grant Appellant leave to remain for 60 days on the basis of her previous letter of 9 January 2015. Consequently, even if there were an error in relation to this ground of complaint, it may be immaterial given the success on several other bases.
7. Returning to the human rights arguments, I accept Miss Shaw's submissions that the ratio of Patel does not exclude the possibility that a student can enjoy engagement of his or her private life in the UK under the Article 8(1), however that private life should not be merely premised upon the pursuit of studies. The dicta in Patel was natrually focused upon the arguments put forward by the Appellant on that occasion, namely that a "near miss" should go towards the engagement of the Article and characterise the assessment of the student's private life.
8. As the Upper Tribunal's decision in Nasim and Others (Article 8) Pakistan [2014] UKUT 25 (IAC) made clear, the decision of the Supreme Court refocused attention on the nature and purpose of Article 8 and recognised the Article's limited utility in private life cases which is far removed from the protection of an individual's moral and physical integrity. In this regard it was plain from the decision in Nasim that the Article in question would have limited utility in private life cases but not that it would have no utility at all. It is also of note that Mr Mills pragmatically accepted that he could not dispute that the circumstances that the Appellant faced could go towards engagement of the Article in respect of his physical and moral integrity.
9. I find from reading the determination as a whole that the judge's assessment of whether Article 8 was engaged is clearly premised upon the fact that the Appellant was unable to comprehend the 60-day letter which he received in January 2015 such that he could not take advantage of it, and the fact of his mental health incapacity and the consequent inability to take advantage of the Secretary of State's decision and simultaneous inability to inform the Secretary of State of his mental health incapacity (given that same incapacity), coupled further with the refusal to vary leave interfering with (more than a technical degree) with his private life (which is of limited utility) but also his physical and moral integrity, which all cumulatively demonstrate that the Article was squarely engaged before the First-tier Tribunal.
10. In respect of the judge's consideration of Section 117 of the Nationality, Immigration and Asylum Act 2002 the judge has clearly stated that he has borne in mind fully the great weight of the statutory considerations and the need to uphold immigration control. Given that judges are required to have regard to the statute, the complaint the Secretary of State makes is one of form rather than substance in light of the judge's clear indication that he has borne the statute in mind including the public interest and need to uphold immigration control.
11. Finally, in respect of the alternate basis upon which the appeal succeeded, even if I am wrong in my decision concerning the engagement of Article 8 and the assessment of that Article by the First-tier Tribunal Judge, based upon his findings he made it clear that the decision was "not in accordance with the law" and the failure to exercise discretion on the current facts. In this regard Mr Mills drew my attention to the decision in Marghia (Procedural fairness) [2014] UKUT 366 (IAC) which states as follows in its judicial head note:
"The common law duty of fairness is essentially about procedural fairness. There is no absolute duty and common law to make decisions which are substantively 'fair'. The court will not interfere with decisions which are objected to as being substantively unfair, except the decision in question falls foul of the Wednesbury test i.e. that no reasonable decision-maker or public body could have arrived at such a decision. It is a matter for the Secretary of State whether she exercises her residual discretin. The exercise of such residual discretion, which does not appear in the Immigration Rules, is absolutely a matter for the Secretary of State and nobody else, including the Tribunal - Abdi [1996] Imm AR 148."
12. It is also important to bear in mind the Upper Tribunal decision in Ukus (Discretion: when reviewable) [2012] UKUT 00307 (IAC) which states inter alia as follows in its second head note concerning decisions that are not in accordance with the law:
"Where the decision maker has failed to exercise the discretion invested in him, the Tribunal's jurisdiction on appeal is limited to a decision that the failure renders the decision not in accordance with the law ...because the discretion is vested in the executive, the appropriate course will be for the Tribunal to require the decision-maker to complete his task by reaching a lawful decision on the outstanding application, along the lines set out SSHD v Abdi [1996] Imm AR 148. In such a case, it makes no difference whether there is such a statutory power as mentioned in paragraph 1 above (see Section 86(3)(b) of the Nationality, Immigration and Asylum Act 2002)."
13. Given the above dicta, I find that the judge found the decision was not in accordance with the law based upon the exercise of discretion and in particular the failure to exercise discretion. Therefore whilst Marghia is correct that a judge cannot independently utilise the Secretary of State's residual statutory discretion for him or herself, the Tribunal may, where the decision maker has failed to exercise the discretion vested in the decision maker, find that the decision is not in accordance with the law and require the decision maker to complete their task by reaching a lawful decision on the outstanding application bearing in mind the findings of fact made by the Tribunal.
14. I find that this is precisely what the judge has done in his determination and was entitled to do given the above authorities.
15. Consequently the appeal to the Upper Tribunal is refused.

Notice of Decision
16. The decision of the First-tier Tribunal is affirmed.

Signed Date 10 June 2016

Deputy Upper Tribunal Judge Saini