Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/16315/2015
IA/16320/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Tribunals
Determination Promulgated
On 8th February 2017
On 20th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) mrs Sandrea Dolores Watson
(2) mr Linval George Watson
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr N Ahmed (Counsel)
For the Respondent: Ms H Aboni (Senior HOPO)

DETERMINATION AND REASONS

1. This is an appeal against the Panel determination of First-tier Tribunal Judge McCarthy, (together with Judge Cox) promulgated on 13th January 2016, following a hearing at Birmingham Sheldon Court on 7th January 2016. In the determination, the Panel dismissed the appeals of the Appellants, whereupon the Appellants subsequently applied for, and were granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellants
2. The Appellants are a wife and husband. The first Appellant, the wife, was born on 17th August 1962. The second Appellant, the husband, was born on 25th November 1959. Both are citizens of Jamaica. Both appeal against the decision of the Respondent Secretary of State dated 14th April 2015 refusing their human rights claims against the Respondent's decision to remove them from the UK to Jamaica, notwithstanding their reliance on the length of time that they have spent in this country, the connections they have made here, and the difficulties that they would encounter upon return to Jamaica.
The Judge's Findings
3. The Panel judge observed at the outset how the issues in the Appellants' claim relate primarily to the role that they play in the lives of their children and grandchildren and the impact that their expulsion would have on others. (Paragraph 4).
4. The judge had regard to the Appellants' claim that they had resided in the UK for a continuous period of ten years, which was disputed by the Respondent Secretary of State, but the Appellants' claim was based upon their assertion that they had valid leave in July 2009 when they left the UK and that the decision to the contrary was wrong in law and therefore met the requirements of paragraph 276B(i) (long residence) of the Immigration Rules. The judge concluded that if this was indeed the case, then they would have ten years of continuous lawful residence, which would make the decision against them by the Secretary of State to be arbitrary and therefore disproportionate.
5. The manner in which the Appellants' claim arose, namely, in relation to the assertion that they had ten years of lawful residence in the UK, is an interesting one. It is predicated on the Respondent's wrongful assertion, as they would maintain, that the first Appellant had failed to provide the maiden name which resulted in the applications being rejected as invalid at the end of May 2009, because the information was mandatory, despite the fact that they had made their application to extend leave two weeks before the expiry of their existing leave at the end of April 2009. Nevertheless, because the applications were rejected by the Respondent Secretary of State, the Appellants then resubmitted their applications in June 2009, but unfortunately for them, by this time their leave to remain had expired. Even so the Respondent went on to consider their applications but rejected them substantially at the end of July 2009 because the Appellants had failed to meet the financial requirements as a Tier 4 (General) Student Migrant and dependent spouse. The Appellants additionally claim that the resubmitted applications should not have been taken to have been fresh applications so that their financial position in April 2009 should have been regarded as the operative position, rather than that in June 2009. The Appellants' claim is that there was no power to reject the original applications and everything the Home Office did thereafter was unlawful. The requirement to contain a maiden name was not one stipulated in the Immigration Rules and the decision by the Respondent was contrary to the Supreme Court's judgment in R (Alvi) [2012] UKSC 33.
6. DUTJ McCarthy went on, however, to reject the submissions so made on the basis that it was a mandatory requirement to provide details of a person's identity so that it can be properly established that the decision being made is against or in favour of that person. Paragraph 34A(iv) requires evidence of identity. Moreover, although the Appellants had, through their representatives, made representations to the Respondent Secretary of State that they had continuing leave under Section 3C of the Immigration Act 1971 before they left for Jamaica to submit a fresh entry clearance application, there was no confirmation of this by the Respondent Secretary of State indicating that they had continuing leave to remain. Any suggestion that they would not have understood the significance of leaving the UK without current leave was unfounded. Accordingly, the Tribunal held that it was lawful for the Home Office to reject the applications as invalid and this brought the Appellants' leave to an end in 2009 before both couple left the UK. The decision made against them was not in any sense arbitrary.
7. The Tribunal then went on to deal with Article 8, and applied the strictures in Razgar, and concluded that there was a public interest in removing the Appellants (paragraph 21). The Appellants did not, on the evidence before the Tribunal, have a genuine and subsisting parental relationship with their grandchildren (paragraph 22). Although the Appellants' son and daughter came to the UK as minors with the Appellants, each had now secured settlement in the UK on the basis of relationships they developed here. Neither of their children lived with the Appellants. They lived independent lives. Consideration was given to the best interests of the Appellants' grandchildren and it was concluded that there would be no disruption to their lives except the regular physical contact that they have enjoyed since birth with the Appellants would cease (paragraph 27).
Grounds of Application
8. The grounds of application state that the Tribunal misapplied the provision of Rule 34A(iv) because the form upon which the application was made had not been laid before parliament. The Respondent was wrong to treat the latter provision of the Appellant's maiden name as constituting a fresh application. The Tribunal failed to consider whether there was any evidential flexibility applicable. This might have gone to the issue of proportionality when considering the extent to which the mischief in the Rules had or had not, been met.
9. On 29th June 2016, permission to appeal was granted. It was held that the panel (noting that the name of Judge Cox had been omitted from the decision but it was clear that there was a panel) erred in its approach to paragraph 276ADE(1)(vi) had not been given due attention.
10. On 11th July 2016, a Rule 24 response was entered by the Respondent Secretary of State to the effect that the First-tier Tribunal panel was correct in that the application was incomplete and therefore rejected as invalid in May 2009 for reasons set out at paragraph 16 of the determination. The Appellants had left the UK bringing any Section 3C leave that they may have had to an end. This broke their ten years of continuous lawful residence in the UK. It was also said that, "the panel may not have specifically referred to paragraph 276ADE but there is consideration at paragraphs 25 and 31 of their personal circumstances and ability to reintegrate on removal to Jamaica".
The Hearing
11. At the hearing before me on 8th February 2017, the Appellant was represented by Mr N Ahmed of Counsel and the Respondent was represented by Ms H Aboni, a Senior Home Office Presenting Officer. Mr Ahmed relied upon the Grounds of Appeal and previous Counsel's skeleton argument (which he handed up). He then made two specific submissions. First, that on 8th April 2009, the application of the Appellants was submitted, before the expiry of their leave, and although the Respondent then concluded that the application was defective because the maiden name had not been included, the fee for the application had not been returned back to the Appellants. Second, the Appellants attended a biometric test in April soon after the application was submitted. This meant that the Secretary of State had not indicated that the application was invalid or ineffective. The fee was not returned. The tests were carried out. The name of Mrs Watson, the principal Appellant, is the same name that she uses in all her applications, and which she had used previously, and nothing had changed. Indeed, when the second application was submitted, no new fee was taken, which can only mean that if the Respondent had proceeded on the basis that the first application was effective, but for the omission of the maiden name, such that the Appellant was allowed to take the biometric test, then her previous Section 3C leave lawfully continued under the Immigration Act 1971. The Appellant had 28 days in which to resubmit the application and that is what she did. On 21st July 2009 the refusal letter was not on the basis that she had breached the immigration conditions at all.
12. For her part, Ms Aboni relied upon the Rule 24 response. She submitted that the panel had directed itself appropriately. Once the Secretary of State rejects an invalid application it ceases to exist. The new application was a separate application. There was no Section 3(C) leave left. There was no discretion to accept a fresh application within the 28 days. Any further application was refused with no right of appeal because the Appellants had no longer any leave to remain. There was no error of law.
13. In reply, Mr Ahmed submitted that it was necessary to have regard to the actual provision in the Immigration Rules. Here, paragraph 34A states that, "where an application form is specified, the application or claim must also comply with the following requirements". It then goes on to specify these at paragraph 34A(iv) and what is said is (see page 654 of Phelan) that: "if the application form and/or related guidance notes require the applicant to provide biometric information, such information must be provided as specified". Mr Ahmed submitted that this information was provided as specified. The Appellant used the same name she had always used. This question had not been addressed by the Secretary of State. Instead, the fee paid the first time around had been kept. The form had been returned back to her. There was no need for her to make a fresh application and to pay a fresh fee. In any event, the Appellants will succeed under Article 8.
Error of Law
14. I am satisfied that the making of the decision by the panel involved 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.
15. First, the panel's reasoning with respect to the Appellants' failure in identifying themselves is set out at paragraph 16 where it is said that,
"It is common place that a person's identity must be properly established in any application to ensure that a decision is made regarding that person. Paragraph 34A(iv) (as in force in 2009) indicates that an applicant must provide evidence of identity. It was a mandatory requirement ?" (paragraph 16).
16. However, it is by no means the case that the first Appellant failed to identify herself in this case. It is said that there was an absence of the first Appellant's maiden name from the application form, but the "requirement" to enter the maiden name was not to be found in the Immigration Rules, which had been placed before parliament, but only in the application form itself, and it could not be a lawful basis for rejecting the application following the principle in Alvi [2012] UKSC 33. Furthermore, paragraph 34A(iv) states that, "if the application form and/or related guidance notes require the applicant to provide biographical information, such information must be provided as specified" in order for the application to be valid. The Immigration Rules, however, do not so specify a requirement for biographical information in this manner.
17. The only rational basis for the rejection of the Appellants' claim in these circumstances is that the information provided, which was not subject to parliamentary oversight, failed to identify the principle Appellant in the manner required. That is not the case. It required no great ingenuity on the part of the decision maker, examining the application as a whole, to verify the first Appellant's identity as claimed by her. Mr Justice Sullivan's judgment (as he then was) in the oft-quoted case of Forrester [2008] EWHC 2307 referring to an approach based upon "elementary common sense and humanity" which does not diminish, but encourages, "respect for the policy in question" may well be applicable in a case such as this (see paragraph 16), although, of course, the facts in that case were markedly different.
18. Second, one is emboldened in this approach, given that the Respondent Secretary of State did not actually reject the application of the first Appellant outright, but returned it to her, keeping the fee that she had paid, so that on 8th June 2009 the Appellant resubmitted the same application form and returned it within the 28 day period, which if the application as originally submitted was not void ab initio, would mean that she continued to have a Section 3C leave, and I so hold.
19. Third, and in any event, given that the first Appellant resubmitted the application within the 28 day period, the period from 8th June 2009, to the period on 21st July 2009, when the decision was taken, meant that the first Appellant had a continuation of lawful leave to remain in this country, because of a pending application before the Secretary of State that was still being considered.
20. Finally, to complete the story, when the Appellants applied for entry clearance on 14th September 2009 after return to Jamaica within fourteen days of arrival, they were promptly granted leave to enter by the Entry Clearance Officer, who plainly took the view that there had been no overstaying in the UK and no break in continuity of the initially granted leave. All in all, both the logic of the law and the manner in which the events subsequently unfolded from beginning to end, indicates that, on a balance of probabilities, the Appellant succeeded in demonstrating that they had continuing Section 3C leave, with no overstaying, and with an initial application which was returned to them for further information to be provided, as is often the case in situations of evidential flexibility policies being applied, suggests that this appeal should be allowed now.
Remaking the Decision
21. I have remade the decision on the basis of the findings of the original panel, the evidence before them, and the submissions that I have heard today. I am allowing this appeal for the reasons that I have given above.
Notice of Decision
22. The decision of the panel involved the making of an error of law such that it fell to be set aside. I set aside the decision of the original panel. I remake the decision as follows. This appeal is allowed.
23. No anonymity direction is made.

Signed Dated

Deputy Upper Tribunal Judge Juss 18th February 2017

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have made a fee award of the entire amount paid or payable.

Signed Dated

Deputy Upper Tribunal Judge Juss 18th February 2017