Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14184/2015
IA/14189/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 9 August 2016

On 22 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

KULJEET [T]
MANDEEP [T]
(ANONYMITY ORDER NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr T Wilding (Senior Presenting Officer)

DECISION AND REASONS

1. These are the appeals of Kuljeet [T] and her husband, Mandeep [T], born respectively on [ ] 1987 and [ ] 1978, against the decision of the First-tier Tribunal of 18 December 2015 dismissing their appeals, brought (purportedly, as it transpires) against the decisions of the Secretary of State of 13 February 2015 to refuse them further leave to remain.

2. The application, signed on 1 April 2015, was for further leave to remain based on the private and family life that the couple had established here. Nothing further is relevant as to the nature of that application given the subsequent course that proceedings have taken.

3. Mrs Toor was granted leave to enter, and then leave to remain, until 27 July 2014. She applied for further leave to remain on 26 July 2014, before that leave expired; that application was returned as invalid on 27 October 2014. The basis for the Respondent's view on invalidity was that they had previously been notified, on 21 August and 21 September 2014 that they needed to attend a participating Post Office in order to provide the biometric information that was essential to any immigration application. As they had failed to duly provide that information, their application was invalid.

4. They then made their further joint application, on 15 December 2014, the refusal of which leads to the present proceedings. The Secretary of State refused that application on 13 February 2015, stating that as there was no settled Sponsor there was no viable application under Appendix FM; and as to their private life, they were to be assumed as having sufficient connections with their country of origin for them to be unable to establish that they faced very serious obstacles to their integration there. The refusal letter did not signify that any right of appeal ensued from it, doubtless because they were overstayers who were not at this time being subjected to removal directions.

5. In their grounds of appeal of 9 April 2015, the Appellants sought to argue that the decision carried the right of appeal, because they had wrongly been treated as overstayers. Their argument was that their case should be assessed by analogy with Basnet [2012] UKUT 113, implying, somewhat obliquely, that the Secretary of State had not established the basis for her contention that their first set of applications were invalid: in particular, she had not shown that the warning notices and the final notification of invalidity had been validly served upon them.

6. The Appellants also sought a reconsideration of that decision, contending that it should be reconsidered, but the Secretary of State declined to do so in a "Reconsideration Request: Rejection" letter of 14 May 2015, stating that the grounds upon which they sought a second look at the case were not those that fell under the Respondent's policy so to do.

7. The First-tier Tribunal determined the appeal without a hearing, noting that the Appellants had only ever paid the lower fee as was appropriate to receive a decision without a hearing, and that the Respondent had failed to duly file a bundle of documents in support of her appeal. Accordingly disposal without a hearing was considered appropriate. The First-tier Tribunal rejected the argument based on Basnet, because this was not an invalidity application predicated on the non-payment of fees; and, more significantly, found that the appeal before it was effectively void, because the Appellants were overstayers who had not received any removal directions which might found a right of appeal under section 82 of the Nationality Immigration and Asylum Act 2002.

8. Grounds of appeal against that decision argued that the First-tier Tribunal had erred in law in failing to appreciate that the burden of proof was upon the Secretary of State to demonstrate that she had successfully served the decisions upon them. They invoked Syed (curtailment of leave - notice) [2013] UKUT 144 for the proposition that decisions had to be effectively communicated to their intended recipients to have legal consequences. They also argued that they should be treated as enjoying the right of appeal because the consequence of the decision made against them was that they lacked leave. Finally they contended, in grounds 2 and 3 of those lodged, that they had a legitimate expectation that their application be considered "systematically" and that they had suffered "particular detriment" which the Upper Tribunal should view favourably.

9. Judge Allen granted permission to appeal for the Upper Tribunal on 29 June 2016, the First-tier Tribunal having previously refused to do so, because a different view might have been taken as to the existence of a right of appeal.

Proceedings before the Upper Tribunal

10. The Appellants wrote to the Upper Tribunal prior to the hearing before me, stating that they would not be attending and asked to participate simply by way of written submission. They stated that the First-tier Tribunal had been wrong to accept the Respondent's claim to have served letters upon them, and wrong to fail to consider the private and family life that they had established in this country. They provided the birth certificate of their son [MT] born in Hillingdon Hospital on [ ] 2013.

11. At the hearing before me Mr Wilding provided a series of letters from the Respondent to the Appellant giving details of the biometric process to which she was subject. They were all addressed to her at [Southall]. It was his submission that there was no right of appeal given that the Secretary of State had discharged the burden of proof upon her to establish the invalidity of the first applications; accordingly, the Appellants were correctly identified as overstayers at the time their second applications were refused.

Decision and reasons

12. This is an "old style" appeal under the saved provisions of the Nationality Immigration and Asylum Act 2002 (because the application was made on human rights grounds and the decision pre-dated 6 April 2015: see The Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions and Amendment) Order 2015 at Article 9). Under the saved provisions, the only classes of decision sufficiently analogous to the instant situation as to have any chance of carrying a right of appeal are those set out in section 82 thereof:

"82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal [to the Tribunal]
(2) In this Part "immigration decision" means-
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
...
(g) a decision that a person is to be removed from the United Kingdom by way of directions under [section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c. 33)] 2 (removal of person unlawfully in United Kingdom),
(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),
(ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave) ?"

13. In short, an overstayer can only enjoy the right of appeal if they are subject to an affirmative decision ordering their removal from the United Kingdom. A person without leave at the time of the decision on their claim will be treated as an overstayer unless it can be said that their lack of leave to enter or remain is "the result of the refusal". The point is made by Wyn-Williams J in Daley-Murdock [2010] EWHC 1488 (Admin) at [51]: "The phraseology "if the result of the refusal is that the person has no leave?.. to remain" clearly conveys the notion that it is the refusal which brings the leave to remain to an end. In the instant case, of course, it was not the refusal which brought the Claimant's leave to an end but, rather, the fact that leave had [previously] expired ..."

14. Subject to any successful challenge to the Secretary of State's treatment of their first applications, it seems to me that the Appellants had become overstayers from the time their leave previously expired, on 27 July 2014. When they were refused further leave in February 2015, their lack of leave was not otherwise "the result of the refusal", but rather the product of their earlier overstaying. Had their attempted application of 26 July 2014 been valid, then of course they would have benefited from the statutory protection conferred by section 3C of the Immigration Act 1971. That sets out:

"3C Continuation of leave pending variation decision
(1) This section applies if-
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when-
(a) the application for variation is neither decided nor withdrawn,"

15. The Appellants made their applications before their leave expired during July 2014, and it subsequently expired before a decision had been made on it. Section 3C(2) therefore potentially extended their leave until such time was it was decided or withdrawn. However, in fact their application did not demand substantive determination: it was merely identified as invalid. Accordingly the statutory protection under section 3C never came into operation.

16. The only possibility of reopening the July 2014 application such as to trigger the operation of section 3C leave and to extend the Appellants' leave until the February 2015 decision would be to demonstrate that the Secretary of State's declaration of their July 2014 applications as invalid (on 27 October 2014) was itself unlawful.

17. Hence the relevance of Basnet. That authority explains where invalidity is alleged, the burden of proof which normally lies upon an Appellant may shift to the Respondent, as where in postal applications the question of the accuracy of the billing data supplied to pay for an application can be answered only by the Respondent. In such a case the Respondent has to show that the application was not "accompanied by such authorisation (or the applicant or other person purporting to pay) as will enable the respondent to receive the entire fee in question" [27]. In Basnet the Tribunal relied upon the fact that the Appellant was an intelligent young man pursuing a business studies course at degree level, aware of the importance of completing the application form accurately, who had made a timely application and who had stated that he was certain that he had provided the correct data, to find that his evidence of the accuracy of the billing data carried the day when measured against the unevidenced assertion of the Secretary of State to the contrary.

18. I accept that by analogy the burden of proof may be on the Secretary of State to establish other forms of invalidity where the matter in question is exclusively within her own knowledge. This might apply in a case where only the Secretary of State has knowledge of how it was that letters were served on an applicant.

19. However, in this case, given the Secretary of State's provision of letters sent to the address the Appellants have consistently provided for service (indeed the same address appeared on their appeal forms), I accept that the Respondent has ostensibly discharged that duty.

20. In these circumstances, and absent any response from the Appellant, I accept that on balance of probabilities the Respondent duly served the letters relating to the prior application's validity on the Appellant.

21. The Appellants have put a further argument based on the lack of effective notice to them, citing Syed. However, that determination of the Upper Tribunal predated the amendment to the Immigration (Leave to Enter and Remain) Order 2000 by the provision of Article 8ZB thereof addressing Presumptions about receipt of notice which was substituted for the provision analysed in Syed on July 12 2013. Article 8ZA expressly allows for service by post.

"8ZB.- Presumptions about receipt of notice
(1) Where a notice is sent ?, it shall be deemed to have been given to the person affected, unless the contrary is proved-
(a) where the notice is sent by postal service-
(i) on the second day after it was sent by postal service in which delivery or receipt is recorded if sent to a place within the United Kingdom;"

22. So the burden of proof in truth lies upon the Appellants to establish that the Secretary of State has failed to effectuate service upon them. Had they attended one of the hearings at First-tier Tribunal or Upper Tribunal level to explain their side of things, they might have raised issues such as how carefully they check their post and whether they share a letterbox with neighbours. However they have not done so. In those circumstances I do not accept that the "contrary is proved" regarding the normal course of service, and I accordingly find that the First-tier Tribunal was correct in its conclusion that there were no appeals properly before it.

23. I accordingly dismiss the appeals brought by the Appellants against the decision of the First-tier Tribunal. And I declare that their attempt to appeal to the First-tier Tribunal was in fact void.

Decision:

The Appellant's appeal to the Upper Tribunal is dismissed.

Signed Date: 10 August 2016

Judge Symes
Judge of the Upper Tribunal

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date: 10 August 2016

Judge Symes
Judge of the Upper Tribunal