Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16542/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 November 2016
On 24 November 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

Sidath Sanjey Wijaysuriya
(anonymity direction not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Kumudusena, Solicitor from Liyon Legal Ltd
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer
DECISION AND REASONS
1. I see no need for, and do not make, any order restricting publicity about this appeal.
2. This is an appeal brought with the permission of Upper Tribunal Judge Grubb against a decision of the First-tier Tribunal dismissing the appellant's appeal against a decision to refuse him leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant.
3. It is a feature of this case that the application dates back to 29 September 2009 and the decision letter is dated 6 November 2009. The grounds of appeal were not lodged until 29 April 2015, which is rather more than five years late.
4. On 11 December 2015 the appellant had lodged a "Section 120 notice", which is a reference to Section 120 of the Nationality, Immigration and Asylum Act 2002, in which the appellant claimed to have become entitled to indefinite leave to remain in the United Kingdom under paragraph 276B of HC 395 because he had completed ten years of lawful residence in the United Kingdom.
5. The application of 29 September 2009 (refused on 6 November 2009) was refused under paragraph 245ZX(d) of HC 395 because the respondent was not satisfied that the appellant was entitled to ten points under Appendix C (maintenance (funds)) of HC 395. The respondent decided that the appellant had not proved that he had sufficient funds directly available to him and did not demonstrate the level of funds required. The applicant had not shown how the funds in the bank account of one Miss M G were available for the appellant and if they were how they were from an acceptable sponsor.
6. The appellant argued that he was at least entitled to a decision on his application for permission to remain on the basis of ten years' lawful residence and in particular on his assertion that his presence in the United Kingdom was in fact lawful because he had never received a decision refusing his application made in September 2009.
7. At paragraph 25 of her decision the First-tier Tribunal Judge expressed herself "satisfied that the respondent sent the Decision to the Appellant at [an address] by post, recorded delivery." This decision is based on contemporaneous or near contemporaneous record and for my part I can see no basis whatsoever for criticising the judge's finding that the notice was in fact sent.
8. Upper Tribunal Judge Grubb reminded himself that proof of postage only creates a rebuttable presumption that notice had been given and he said:
"The Judge did not consider whether the presumption had been rebutted on the basis of the evidence and subsequent dealings with the Home Office that, at least arguably, was consistent with the claim the notice had never actually been received. In failing to do so, the Judge arguably erred in law in concluding he had no jurisdiction to hear the appeal."
9. At paragraph 27.1 of her decision the judge found not only that the decision was sent but also delivered. She gave an explanation. She acknowledged the appellant's evidence that he had "chased it up" and also noted that there were only three letters produced as evidence of the chasing and they were not on the respondent's file. The judge said:
"Given the importance of the application and the fact that he says the respondent retained his papers, it is reasonable to have expected the appellant to have made far greater efforts to establish the situation during a period of six years. He waited until November 2014 to seek legal advice and, on his own evidence, this was because he wanted to make an application based on ten years' residence."
10. With respect to the judge, I think she may have invited criticism by saying at paragraph 26 that she found the "written notice of decision was served on the appellant in accordance with the 2003 Regulations having been sent by recorded delivery." This equates "service" with "being sent" and I am not sure that that is right. However, in paragraph 27.1 she clarified her position and expressly asked herself if it was delivered. She has given reasons for the conclusion that it was delivered.
11. The criticism in the grounds is directed to the judge's apparent failure to satisfy herself that there was any formal proof of postage. I see no merit in that whatsoever. The judge had a full record. In an ideal world it would have been supplemented by positive proof of postage such as a recorded delivery receipt but there is nothing irrational or otherwise unlawful in accepting the record at face value. The judge did not fall into the error of equating proof of postage as proof of receipt.
12. The second point taken in the grounds is that the judge did not consider whether the Home Office had taken any course of action as a consequence of the decision. With respect, the Home Office often does not appear to take any action after making a decision to refuse leave. Although the absence of any such action might be evidence that no decision to refuse leave had been made it is clear that a decision had been made and that part of the grounds does not illuminate the appellant's case at all.
13. I sat back and reflected on this because I realise the importance of the decision to the appellant and the fact that an adverse decision must mean that he has been found to have acted dishonestly by suppressing knowledge of receipt of the notice. That is a conclusion the judge reached. Neither the grounds nor the arguments nor the point identified when permission was granted undermine that finding. It follows therefore that I dismiss the appeal.
Notice of Decision
The appeal is dismissed.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 23 November 2016