Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA / 15269 / 2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 21 December 2016
On 04 January 2017

Before:

UPPER TRIBUNAL JUDGE GILL

Between

Bunyarit Sritharanon
(ANONYMITY ORDER NOT MADE)

Appellant

And

The Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr S Bellara, of Counsel, instructed by Legend Solicitors.
For the Respondent: Mr S. Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and background facts:
1. The appellant has been granted permission to appeal to the Upper Tribunal against a decision of Judge of the First-tier Tribunal Flynn who (in a decision promulgated on 18 May 2016 following a hearing on 8 April 2016) dismissed his appeal against a decision of the respondent of 1 April 2015 to refuse his application of 17 October 2014 for leave to remain under para 276ADE of HC 395 as amended.
2. As at the date of the decision, para 276ADE(1) read as follows:

276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK
(my emphasis)
3. In granting permission, Judge of the First-tier Tribunal Simpson considered it arguable that the finding of Judge Flynn that the appellant had lived in the United Kingdom continuously since February 1998 "was inconsistent with his dismissal of the appeal under paragraph 276ADE(1)(vi), particularly as such a finding would bring the appellant within paragraph 276ADE(1)(iii)".
4. The appellant's evidence was that he arrived in the United Kingdom on 14 February 1996. Even on the basis of the finding of Judge Flynn that he has lived in the United Kingdom continuously since then, he could not satisfy the minimum 20-year residence requirement in para 276ADE(1)(iii) as at the date of his application. This is no doubt the reason why Mr Kannangara, Counsel who appeared before Judge Flynn on behalf of the appellant, conceded that the appellant could not satisfy the requirements of para 276ADE(1) either on the grounds of 20 years' residence at the date of application or under para 276ADE(1)(vi), see para 25 of the decision of Judge Flynn.
5. The mere fact that the appellant has lived in the United Kingdom for 20 years does not mean that there would be very significant obstacles to his reintegration in Thailand.
6. At the hearing before me, Mr Bellara advanced the submission in the written grounds that, given that the appellant had lived in the United Kingdom continuously for a period of 20 years as at the date of the hearing, the judge should have allowed the appeal. He submitted that the fact that the appellant had lived in the United Kingdom for a continuous period of 20 years as at the date of the hearing before the judge was "relevant to the substance of the decision" and that, accordingly, the judge should have taken into account the evidence of his further residence, between the date following the day of the appellant's application and the date of the hearing, pursuant to 85(4) of the Nationality, Immigration and Asylum Act 2002 and the Asylum and Immigration Tribunal decisions in LX (effect of section 85(4) - 2002 Act) China [2005] UKAIT 00157 and L (post decision evidence, directions, appealability) Gambia [2005] UKAIT 00085.
7. I have no hesitation in rejecting Mr Bellara's submission which, in my judgement, is misconceived. In relation to para 276ADE(1)(iii), the issue was whether the appellant had completed 20-years' continuous residence as at the date of his application. That was the substance of the decision in relation to para 276ADE(1). Thus, any further period of residence between the day following the date of his application and the date of the hearing was not relevant to the substance of the decision to refuse his application under para 276ADE(1)(iii).
8. As I said earlier, it does not follow, from the mere fact that the appellant had, by the date of the hearing, completed 20 years of continuous residence in the United Kingdom, that there would be very significant obstacles to his reintegration in Thailand. In any event, this issue was also conceded before Judge Flynn. It was improper for the grounds to advance the arguments advanced without making any attempt to explain why the appellant should be permitted to distance himself from the concession made on his behalf by experienced Counsel.
9. For all of the above reasons, I am satisfied that the decision of Judge Flynn did not involve the making of any error on a point of law. The appellant's appeal to the Upper Tribunal is therefore dismissed.

Decision

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

Signed Date: 3 January 2017
Upper Tribunal Judge Gill