Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16332/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th March 2017
On 3rd April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

marianna rebenchuk
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Scott of Counsel instructed by Bukhari Chambers Solicitors
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction and Background
1. The Appellant appeals against a decision of Judge Maxwell of the First-tier Tribunal (the FtT) promulgated on 21st June 2016.
2. The Appellant is a female citizen of Kazakhstan born 23rd July 1984. On 31st October 2014 the Appellant applied for indefinite leave to remain in the United Kingdom on the basis that she had ten years continuous lawful residence in this country.
3. The Respondent refused the application on 14th April 2015 because the Appellant had a gap in her lawful residence. It was accepted that the Appellant arrived in the United Kingdom on 26th January 2004. Thereafter she had leave to remain until 25th March 2008. On 22nd March 2008 she applied for further leave to remain as a student, which application was refused on 27th March 2008 ‘due to a fee issue.’
4. On 31st March 2008 the Appellant made a further application for leave to remain as a student and this application was refused on 27th April 2008 without a right of appeal. On 11th May 2008 the Appellant left the United Kingdom without any leave to enter or remain.
5. The Appellant made an application for entry clearance from abroad on 30th May 2008 and this application was granted on 4th June 2008 until 31st October 2008. The Appellant entered the United Kingdom again on 7th June 2008.
6. The Respondent contended that the gap in the Appellant’s lawful continuous residence was from 25th March 2008 until 7th June 2008.
7. The application was also refused with reference to Article 8, the Respondent considering paragraph 276ADE(1) in relation to private life and concluding that the provisions therein were not satisfied, and also concluding that there were no exceptional circumstances which would justify granting leave to remain pursuant to Article 8 outside the Immigration Rules.
8. The Appellant appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The appeal was heard by the FtT on 3rd June 2016. The FtT recorded that Counsel for the Appellant conceded that the Appellant could not succeed on the basis of length of residence, and FtT was asked to consider the appeal on human rights grounds. The FtT found that the Appellant could not satisfy the requirements of paragraph 276ADE(1), and that the Respondent’s decision was proportionate, and did not breach Article 8.
9. The Appellant applied for permission to appeal to the Upper Tribunal relying upon the grounds summarised below.
10. It was contended that the Respondent had wrongly rejected the application for leave to remain, which had been made on 22nd March 2008 as it was the Respondent’s fault that the fee required for the application was not taken from the Appellant’s bank account.
11. The Appellant had stated in her witness statement that she had adequate funds in her account to pay the fee and the FtT had accepted that the Appellant had more than sufficient funds in her account. It was contended that the FtT had erred at paragraph 21 in stating that the burden of proving why the fee was not taken from her account lay with the Appellant.
12. It was contended that following refusal of the application on 27th March 2008, the Appellant was then misinformed by the Respondent, which caused her to believe that she could make a further application for leave to remain without leaving the United Kingdom. This was not in fact correct. The Appellant could not return to Kazakhstan until her passport was returned to her and this was not returned until 11th May 2008.
13. It was contended that the gap in lawful residence was between 25th March 2008 and 30th May 2008 when the Appellant made an entry clearance application to re-enter the United Kingdom, and of this period of 73 days, 53 days delay was caused by the Respondent.
14. It was submitted that discretion should have been exercised by the Respondent and the break in evidence disregarded, and the FtT had erred by not recognising this.
15. In the alternative, it was submitted that no real, or adequate, consideration had been given by the FtT to the Appellant’s private life in the United Kingdom.
16. Permission to appeal was initially refused, but a renewed application resulted in Deputy Upper Tribunal Judge Taylor granting permission to appeal in the following terms;
The Appellant’s application for leave to remain on grounds of long residence was refused on the grounds that she had a gap of more than 28 days in her continuous stay.
The Respondent recorded that in 2008 there had been an issue with the payment of a fee. The judge accepted the evidence that the Appellant had sufficient funds in her account at the relevant time. He dismissed the appeal on the basis that the Appellant may have written out her account details incorrectly or there might have been a bank error or it might have been an error on the part of the Respondent. He said that the burden of proof lay with the Appellant, and it had not been possible for her to discharge it.
There was no evidence from the bank or the Respondent, and there was evidence that the Appellant had the funds in the account. It is arguable that the judge was speculating about the reasons for the failure of the Respondent to take the fee, and may not have applied the standard of proof correctly.
17. Following the grant of permission the Respondent lodged a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 contending that the FtT directed itself appropriately in finding that the Appellant did not satisfy the requirements of the long residence rule, and this had been conceded on the Appellant’s behalf before the FtT. The judge considered paragraph 276ADE(1) and did not err in so doing.
18. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT decision contained an error of law such that it should be set aside.
The Appellant’s Oral Submissions
19. Mr Scott relied upon Basnet (validity of application – respondent) [2012] UKUT 00113 (IAC) and upon the grounds contained within the application for permission to appeal.
20. With reference to paragraph 21 of the FtT decision I was asked to note that the FtT accepted that the Appellant had sufficient funds in her account. It was contended that the FtT had misapplied the burden of proof, and that it was for the Respondent to prove that the application made by the Appellant was not valid because the fee had not been paid. Even if the burden fell on the Appellant, Mr Scott submitted the FtT had erred, as there was evidence from the Appellant that the form had been properly completed, and that sufficient funds were in her account, and the FtT had speculated as to the reasons why the appropriate fee had not been taken.
21. Mr Scott also submitted that it was the Respondent’s fault, having wrongly found the application to be invalid, that the Appellant thereafter made an application on 31st March 2008 without leaving the United Kingdom. It was said that this was the Respondent’s fault because the Respondent had supplied the Appellant with the form with which to make the application.
22. That application was thereafter refused by the Respondent on 28th April 2008. The Appellant did not receive her passport back from the Home Office immediately, so could not leave the United Kingdom until 11th May 2008. Having left the United Kingdom the Appellant applied for entry clearance which was granted, and she re-entered the United Kingdom on 7th June 2008.
23. Therefore Mr Scott contended that the break in the Appellant’s continuous lawful residence was not her fault, and indeed was the fault of the Respondent, and the FtT had erred by not realising this and erred in not accepting that the break in continuous residence should be disregarded, and therefore the Appellant had acquired ten years continuous residence and should have been granted indefinite leave to remain.
24. I asked Mr Scott whether he had any comment on paragraph 6 of the FtT decision, in which it is recorded that Counsel for the Appellant conceded that she could not succeed with her appeal on the basis of ten years continuous residence and accepted that the requirements of paragraph 276B could not be satisfied. Mr Scott accepted that this point had not been addressed and suggested that the FtT may have made it clear to Counsel representing the Appellant that the appeal could not succeed under the Immigration Rules, and stated that if the concession was made, this was a mistake on Counsel’s part. Mr Scott accepted that he did not have specific instructions on this point.
The Respondent’s Oral Submissions
25. Mr Singh relied upon the rule 24 response and submitted that the Respondent was not under a duty to advise an applicant as to what type of application should be made.
26. Mr Singh submitted that the FtT was correct to accept the concession made by the Appellant’s Counsel that the requirements of paragraph 276B could not be satisfied. Mr Singh pointed out, with reference to the third paragraph of the head note in Basnet, that the appeal lodged on behalf of the Appellant to the FtT did not raise issues regarding payment of the application fee in March 2008.
27. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
28. I find no material error of law in the FtT decision for the following reasons.
29. In my view it is clear that a concession was made to the FtT, by Counsel representing the Appellant, that there had been a break in the Appellant’s continuous residence and that the requirements of paragraph 276B could not be satisfied for that reason. The FtT records in paragraph 5 that the break in residence was between 25th March 2008 and 30th May 2008, which is when the application for entry clearance was lodged, although that application was not granted until 4th June 2008, and the Appellant did not re-enter the United Kingdom until 7th June 2008.
30. The concession was not addressed on the grounds seeking permission to appeal. Mr Scott had no specific instructions on that point. I do not find that the concession was wrongly made. There is no reference to Basnet in the Grounds of Appeal to the FtT, and there is no evidence that there was any reference to Basnet at the FtT hearing. The FtT did not err in finding a break that could not be disregarded in the Appellant’s continuous residence.
31. It is not only the fact that the application made on 22nd March 2008 was rejected because the fee had not been paid, that caused the break in continuous lawful residence. Thereafter on 31st March 2008 the Appellant made a further application for leave to remain, which was refused on 28 April 2008. I do not find that the Appellant made a further application which apparently could not succeed, can be blamed upon the Respondent. It is the responsibility of the Appellant to make the correct application.
32. Thereafter the Appellant left the United Kingdom to make an entry clearance application from abroad which was granted. I do not find that evidence has been submitted to show that the FtT erred in law in accepting the concession made on behalf of the Appellant, to the effect that she could not satisfy paragraph 276B of the Immigration Rules. The evidence before the FtT indicated that the concession was rightly made.
33. There was reference in the grounds seeking permission to appeal, to Article 8 although Article 8 was not pursued before the Upper Tribunal. Mr Scott took the view that permission to appeal had not been granted on that point, and I find that view to be correct. In any event, the FtT decision demonstrates that no error of law was made in consideration of Article 8.
Notice of Decision

The FtT did not materially err in law. I do not set aside the decision. The appeal is dismissed.

Anonymity

No anonymity direction was made by the FtT. There has been no application for anonymity made to the Upper Tribunal and I see no need to make an anonymity order.

Signed Date 27th March 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. There is no fee award.

Signed Date 27th March 2017

Deputy Upper Tribunal Judge M A Hall