Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14387/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 August 2016
On 18 August 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Ebiowei Saweigha
(NO ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent: Mr Saweigha in Person

DECISION AND REASONS

1. This is the appeal of the Secretary of State but I will refer to the original appellant, a citizen of Nigeria born on 22 October 1980, as the appellant herein.

2. The appellant entered this country on 8 October 2004 and on 4 October 2014 applied for indefinite leave to remain on the basis of long residence - the "ten year Rule". This application was refused by the Secretary of State on 18 March 2015.

3. In the decision the respondent sets out the appellant's immigration history. From his arrival on 8 October 2004 the appellant remained as a student until 31 August 2009. The appellant made an in time application for leave to remain as a student but this was refused with a right of appeal on 2 October 2009.

4. The appellant did not exercise his right of appeal but on 2 November 2009 made a fresh application for leave to remain as a Tier 4 (General) Student. This application was refused without a right of appeal.

5. However, on 17 August 2010 he made an application to remain as a student which was granted on 8 September 2010 and he was given leave until 11 March 2012. On application in March 2012 leave was granted as a post-study migrant until 25 July 2014. However, on 17 July 2014 an application for leave to remain as a student was refused on 23 September 2014.

6. The application, the subject of the appeal herein, was lodged on 4 October 2014. The respondent considered that while the appellant had had lawful leave to remain until 16 October 2009 when his appeal rights were exhausted following a refused application the attempt to vary his leave on 2 November 2009 had been submitted out of time and had been subsequently refused. The respondent added:

"It should be explained that any time spent following the submission of an out of time application awaiting for consideration of the application is not considered lawful even if that application is subsequently granted. Therefore you were without valid leave from 16 October 2009 until your next grant of leave to remain on 8 September 2010 a period of approximately eleven months. As such your period of continuous lawful residence is considered to have been broken at this point."

7. The respondent considered the exercise of discretion but found that there were no exceptional reasons why his application of 17 August 2010 was made more than 28 days out of time. It was also noted that the application of 4 October 2014 was lodged some eleven days after the appellant's lawful leave ceased and accordingly he could not satisfy the requirements of paragraph 276B(v). An application to remain on the basis of private life and residence was considered and refused under paragraph 276ADE of the Rules. The appellant did not meet the residential requirements of these Rules and it was not considered that there would be very significant obstacles to the appellant's integration into Nigeria. There were no exceptional circumstances warranting the consideration of a grant of leave to remain outside the Rules.

8. The appellant appealed the decision and his appeal came before a First-tier Judge on 20 January 2016 when he was represented.

9. The judge heard evidence from the appellant. He confirmed that he had not appealed the refusal on 2 October 2009 but had made a fresh application on 2 November 2009. He said he had never received the refusal that the respondent had issued on 2 November 2009. The Home Office system showed that on 22 December 2009 the refusal letter had been sent to the appellant with non-valuable documents by recorded delivery. The appellant had assumed that this was the refusal notice, his passport and every other document. In fact it turned out that the documents had been retained on file. The judge records that the appellant had not appealed the decision on 23 December 2014 (presumably a reference to the decision on 23 September 2014 was intended) because he thought he was already qualified for ten years' long residency. He had intended to complete a PhD until the refusal letter came.

10. In submissions the Presenting Officer argued that the appellant had not appealed the decision taken on 2 October 2009 and had had no leave from that date until 8 September 2010. It was irrelevant whether or not the appellant had received the December 2009 refusal because he had not got leave at that time. He had not traced the Post Office letter reference and the Home Office had sent out the decision but had retained the documents on the file.

11. It was submitted on behalf of the appellant that the key dates were 16 October 2009 to 8 September 2010. The judge records what was said as follows:

"On 23 September 2014 the appellant was entitled to appeal and was not without leave because of Section 3(C) of the Immigration Act 1971. The appellant could appeal the decision of 2 October 2009. The quickest way was to make a fresh application on 2 November 2009, within 28 days of his overstaying. He is studying for the same course. He made contact with the Home Office regarding his missing application. The decision was not served on him. ? There was a clear administration error. There should be discretion where more then 28 days have elapsed. None of the decision errors were down to the appellant."

12. In the alternative the appellant should succeed under paragraph 276ADE(vi) on the basis that there would be very significant obstacles to his integration into Nigeria. It was accepted that he had family ties in Nigeria and spoke English.

13. The judge turned to consider the question of the eleven month gap which the Secretary of State claimed broke the period of continuous residence.

14. The judge records in paragraph 24 of his decision that the appellant had spoken to the Home Office on 12 April 2010 and had been told that a decision had been made on 22 December 2009 and that the documents had been sent to him. However, it later appeared that the documents were still in their custody but they had sent them to the appellant on 11 May 2010. The judge observed that the respondent's notes stated that the appellant had never received the package of documents dispatched on 22 December 2009.

15. The judge refers to the respondent's notes stating that the refusal letter had been sent to the appellant at his then address by recorded delivery with non-valuable documents. The valuable documents were retained on the file including his passport, visa letter and educational certificate. There was a letter from the Home Office to the appellant on 19 April 2010 confirming that the decision had been made and sent to him by recorded delivery on 22 December 2009. The appellant had not made any enquiries of Royal Mail as to the non-delivery of that letter or documents. The judge states:

"I have some doubt as to whether it was in fact sent because the respondent's own notes now suggest that they were not sent until April or May 2010. After the appellant eventually received the decision letter he made a fresh application for leave on 17 August 2010 which was granted on 8 September 2010 until 11 March 2012."

16. The judge's decision continues as follows:

"25. Paragraph 276B(v) of the Immigration Rules allows a period of overstaying by 28 days or less. There is also a case that the Appellant's leave was automatically extended under Section 3(C) of the Immigration Act 1971. The refusals on 2nd October and 22nd December 2009 were on the grounds that the course start date was more than one month after the expiry of his previous leave. There is a conflicting document from the college, City Banking College, suggesting that the commencement date was 15th October 2009 (in its letter of 26th October 2009) or 24th September 2009 (in its undated letter at page 50 of the Appellant's bundle). As his previous leave expired on 31st August 2009, a start date of 24th September 2009 would indeed have been within the period of one month and that would not have been a proper ground for refusal.

26. Taking all these factors into account, including the uncertainty as to when the Respondent actually sent the refusal decision of December 2009 (possibly as late as May 2010) and the Appellant's continuing leave while he had an outstanding application or appeal, I am satisfied that he has met the ten-year continuous residence requirement under paragraph 276B of the Immigration Rules on the balance of probabilities.

27. If I had come to a contrary view on that aspect, I would consider that, while he cannot meet the Immigration Rules whether in respect of family or private life, he should succeed under Article 8 ECHR outside the Immigration Rules as it would be disproportionate to expect him to return to Nigeria after this length of time."

17. There was an application for permission to appeal. Permission to appeal was granted by a First-tier Judge who found it arguable that the judge had failed to explain how the continuity of lawful residence was not broken between the application made in November 2009 (the judge having referred mistakenly to the October 2009 application in paragraph 24 of his decision) and the next grant of leave on 8 September 2010. The judge appeared to have erred in relying on Section 3C of the 1971 Act given that the November 2009 application had been made when the appellant had had no current leave.

18. In relation to Article 8 the First-tier Judge found that no proper analysis had been made of the issue. No reference had been made to Section 117B of the 2002 Act and the judge had failed to give any consideration to the public interest. No adequate reasons had been given for the judge's conclusion.

19. At the hearing before me the appellant confirmed that his representatives were no longer acting for him - they had written to the Tribunal coming off the record on 5 August 2016. I explained the procedures to the appellant and he proved to have no difficulty representing himself and making submissions in a very articulate manner.

20. Mr Avery submitted that there was no lawful residence during the period 2009 - 2010. Following the refusal of his application in October 2009 the appellant did not exercise his right of appeal during the fourteen day period following that decision. He decided to make a fresh application in November. The appellant's leave to remain was not extended under Section 3C as the judge appeared to have thought. There was no right of appeal against the second decision (had it been adverse) and the appellant had had no leave until he was subsequently granted leave to remain in September 2010. However, the period was calculated, there was no continuing leave.

21. He further submitted that the October 2009 decision had been properly served on the appellant by recorded delivery. He had not pursued with the Post Office what had happened. On any view there was a substantial gap.

22. The appellant said he had completed his ten years' residence on 7 October 2014 while it was said that his application on 4 October 2014 had been made eleven days after his lawful leave had ceased. The leave to remain had lapsed on 23 September 2014 but there was a right of appeal against the decision and that period would have ended on 7 October 2014.

23. Dealing with the issue in 2009, while the appellant had decided not to appeal the October decision, he had made his application in November within the 28 day period allowed under the Rules. It did not break the continuity of residence. He had been under restrictions as to residence and he had not been permitted to work in the meanwhile and he could not afford to pay a lawyer. He said he had not received the December 2009 decision which had not been sent to him. He had regularly checked his previous address. The documents had been sent to him on 11 May 2010. The documents had been retained on the file. The eleven month delay was not his fault. He considered he had had lawful residence throughout.

24. In response Mr Avery submitted that there were two issues with the question of the service of the decision of 22 December 2009. The first question was whether it was sent and the second whether the decision was accompanied by any documents. Mr Avery's submission was that the decision had been correctly served under the Regulations but the documents had been retained on the file.

25. The appellant could not rely on the 28 period under 276B(v) which would not have the effect of extending leave to remain. It simply provided that any period of overstaying for a period of 28 days or less would be disregarded.

26. In response the appellant said that the judge had made very clear findings of fact in relation to his leave to remain. He had not had any criminal activity and the appellant had now resided in the UK for twelve years and had only spent three weeks outside the UK in that time. He said that he had not in fact appealed the decision on Article 8 grounds.

27. At the conclusion of the submissions I reserved my decision. I remind myself that I can only interfere with the judge's determination if it was materially flawed in law.

28. It does appear to me that the answer to this case is indeed very simple. It was highlighted in the submissions made to the First-tier Judge by the Presenting Officer. The appellant had made an in time application for further leave to remain on 25 August 2009 and this application had been refused with a right of appeal on 2 October 2009. That decision had not been appealed. The appellant did not challenge the decision but put in a fresh application instead as it was "the quickest way".

29. That appears to me to be the crucial point in this appeal. The appellant's 3C leave came to an end because the decision was not appealed. The 28 day period does not assist the appellant in this case. The ten year Rule requires continuous lawful residence. Periods of 28 days or less are disregarded but the Rule does not have the effect of keeping the appellant's previous lawful residence by virtue of Section 3C alive and the judge erred in failing to appreciate this important point. The position would no doubt have been different had the application made in November 2009 been granted, but it was not. It was refused in December 2009 being sent by recorded delivery and the appellant did not take up the issue of service with Royal Mail. Even if, on the most favourable assumption from the point of view of the appellant, he received the decision as late as May 2010 he only made his application on 17 August 2010, some three months later. On any analysis, as Mr Avery submitted, there was a considerable gap in the appellant's period of continuous lawful residence within the meaning of the Rules. I should mention that rule 276B(v) as set out in the refusal letter provides also "that any period of overstaying pending determination of an application made within that 28 day period" will be disregarded but again that does not assist the appellant because of the period following the decision when he had no leave - either December 2009 or May 2010 - until September 2010.

30. In relation to service of the decision on the appellant it appears that the appellant misunderstood what the Secretary of State was saying about the valuable and non-valuable documents. The judge records the appellant assuming that the appellant had sent all the documents in December 2009 whereas it is apparent that the passport would have been classed together with the other documents as valuable documents. These were retained by the respondent. The decision was clearly sent by recorded delivery and the appellant did not chase this matter up with Royal Mail. The judge misconstrued the effect of 276B(v), misunderstood the effect of Section 3C and went off on a tangent concerning the October 2009 decision which the appellant did not challenge at the time. On no view could the appellant have satisfied the ten year continuous residence requirement.

31. The judge in paragraph 27 of his decision considered the case on a hypothetical basis had he reached a contrary view on the application of the 10 year rule. This aspect of the decision is criticised on the basis that no meaningful balancing act had been undertaken and no reference to the public interest had been made. In particular no reference was made to S117B as required by S117A of the 2002 Act. S117B is as follows:

117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom."

32. In relation to Article 8 the appellant raised no particular issues before me. Although at one stage in a relationship as stated in a witness statement dated 26 November 2015 that statement was withdrawn and replaced by another statement dated 14 January 2016. The appellant refers to having made lifelong friends who were like his family and that he had been placed on restriction and unable to work. He raised no particular points in relation to Article 8 and in effect the appeal was brought on the long residence point. All the judge was told in submissions was that the appellant had family ties in Nigeria and spoke English but that there would be "obstacles to him returning to that country".

33. I have already referred to the Secretary of State's consideration of the appellant's application based on private life under paragraph 276ADE of the Rules. In order to comply with the Rules in this case the appellant would need to show "very significant obstacles" to integration into Nigeria. It is implicit in what the judge found - that the appellant could not meet the requirements of the Rules - that he was not satisfied that there were significant obstacles preventing the appellant's return. As the respondent noted in her decision the appellant had not raised any exceptional circumstances in the case and the judge identified none. The judge gave no reason for his decision that mere length of residence would make it "disproportionate" to expect the appellant to return. No reference is made to the public interest. During his stay in the United Kingdom the appellant has had leave to remain as a student and would have been aware that the status as a student was not a permanent one. His position would be precarious within the meaning of Section 117B(5) - see the following extract from the judgment of Sales LJ in Rhuppiah v Secretary of State [2016] EWCA Civ 803:

35. For each individual grant to the appellant of leave to enter or remain, the period of the grant was specifically limited to the comparatively short and clearly delimited period required for the completion of a course of study on each occasion. When each grant of leave was made, the appellant specifically stated that her intention was to leave at the end of her period of study. On the occasion of her application in each case, she may have had a hope that her leave might be extended when it came to an end if she could find another study course, but she had no guarantee that she would be able to do so and no guarantee that the same Immigration Rules would be in place when she made her further application. The hope, if she had one, of possibly eventually being in a position to apply for ILR was still more remote and tenuous. The position, therefore, in respect of each application for leave to enter or for an extension of her leave to remain was that the appellant had a stated intention to leave the UK at the end of the comparatively short period of leave requested, and only a speculative hope that she might be permitted to stay for longer at that point.

36. On any proper interpretation of section 117B(5) this was an immigration status which was precarious, and the FTT was correct so to hold. This view also accords with that of McCloskey J sitting in the Upper Tribunal in Deelah and others (section 117B - ambit) [2015] UKUT 00515 (IAC) at para. [33].

34. The appellant is able to speak good English and this would appear to be a neutral factor as explained by the Court of Appeal in paragraphs 59 to 61. The appellant was financially independent until recently when he was not able to work. Again, this is a neutral point in my view. The appellant has not given evidence that he is currently in a relationship and there is no evidence that he is in a genuine and subsisting parental relationship with a qualifying child. In short, the appellant has really given no reasons as to why his appeal should succeed outside the Rules on the basis of his private life established in this country while he was a student. The respondent found no exceptional circumstances for considering matters in the exercise of her discretion outside the Rules. Whether considered under the rules or by addressing the questions posed in the Opinion of Lord Bingham of Cornhill in Razgar v Secretary of State [2004] UKHL 27 at paragraph 17 the answer would be the same. Assuming Article 8 was engaged and that the appellant had established that removal would interfere with his private life (both perhaps generous assumptions in this case) such interference would clearly be lawful and necessary. The appellant has put forward no compelling or other personal circumstances which would make such interference in any way disproportionate.

35. The judge erred in law in reaching a contrary decision.

Notice of Decision

For the reasons I have given, the appeal of the Secretary of State is allowed and the decision of the First-tier Tribunal is reversed.

Anonymity Direction

The First-tier Judge made no anonymity direction and I make none.

TO THE RESPONDENT
FEE AWARD

The First-tier Judge stated that he would have made an award if a fee had been paid. It is not clear what happened in this case and in the premises I will not disturb the judge's order on this aspect.

Signed Date 17 August 2016

G Warr
Judge of the Upper Tribunal