Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16755/2014

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 15 December 2016
On 29 March 2017

Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE MACLEMAN

Between

NAVEED IQBAL
Applicant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Applicant: Mr Sharma, instructed by Matthew Cohen and Associates.
For the Respondent: Mr Matthews, Senior Home Office Presenting Officer.

DETERMINATION AND REASONS
1. At the hearing before us on 15 December 2016 Mr Matthews, on behalf of the Secretary of State, indicated that he was content that we should allow this appeal. There has subsequently been an application made on behalf of the appellant for an order that the Secretary of State pay the appellant’s expenses in the form of a wasted costs order. For this reason we need to consider the merits.
2. The appellant originally applied for indefinite leave to remain as a work permit holder. He did not meet the requirements of the relevant part of the Immigration Rules, that is to say paragraph 134 of the Statement of Changes in Immigration Rules, HC395 (as amended). His application was refused on that ground and also on the ground that he had been convicted on 21 January 2014 of selling tobacco to a person under 18. That conviction was said to mandate the refusal of his application for indefinite leave to remain because of the provisions of paragraph 322(1C)(iv).
3. A notice under s 120 of the 2002 Act was served on him, and he thereupon indicated that his long-term residence with his wife in the United Kingdom was a reason why he should not be refused leave or removed. In his appeal against the decision refusing him leave, the First-tier Tribunal was obliged by s 85(2) to consider “any matter raised in the statement [in response to the s 120 Notice] which constitutes a ground of appeal of a kind listed in s 84 against the decision appealed against”. Judge Balloch heard the appellant’s appeal and allowed it. Her reason for so doing was that the s 120 Statement constituted an application for leave to remain as a spouse, which would be governed by paragraph 284 of the Rules, that paragraph 322(1C) did not apply to decisions made under paragraph 284; that the application under paragraph 284 was on other grounds entitled to succeed and that refusal was not mandated by paragraph 322(1C).
4. The Secretary of State appealed to this Tribunal and in a decision by the President and Judge Macleman the Tribunal set aside Judge Balloch’s decision and remitted the appeal for rehearing by the First-tier Tribunal, commenting that there had as yet been no substantive consideration by the Secretary of State of the matters raised in the statement in response to the s 120 Notice. The Tribunal held that on its true construction, paragraph 322(1C) applied to any application for indefinite leave to remain, under any provision of the Rules: Judge Balloch was therefore wrong to say that it did not apply to applications for leave as a spouse. The remittal was to enable the circumstances of the appellant’s life with his spouse to be considered in full on the basis of article 8.
5. Thus the matter came before Designated Judge Murray. Before her, the appellant attempted to show that the Upper Tribunal’s decision was wrong. Judge Murray properly did not allow arguments to that effect. She did, however, consider an argument that the applicant was not to be regarded as a person seeking indefinite leave to remain, but merely a person seeking some sort of further leave to remain as a spouse. She rejected that argument, because the applicant had never withdrawn his original application, which was an application for indefinite leave to remain, and there was no clear application for limited leave as distinct from indefinite leave. She thus applied the decision of the Tribunal, found that refusal under the Rules as mandatory, and that a ground of appeal based on article 8 outside the Rules could not succeed, because it was not disproportionate to require the applicant to make the proper application, which he could do without leaving the United Kingdom.
6. The applicant then sough permission to appeal to this Tribunal. Permission was refused by the First-tier Tribunal, but granted by Judge Grubb on renewal to this Tribunal. In granting permission, he wrote as follows:
“3. The grounds argue that the Designated Judge was wrong to [dismiss the appeal] essentially because it is said that the UT wrongly concluded that para 322(1C) applied despite the fact that the appellant was no longer seeking ILR but rather only limited leave by way of an extension of his existing leave.
4. The FtT followed the UT’s decision that para 322(1C) applied to the appellant’s appeal now based solely upon being a spouse and now seeking limited leave. The grounds raise an arguable point that para 322(1C) (as opposed to other parts of para 322) only applies where the individual “is seeking” ILR and this appellant is no longer doing so. That appears to contradict the decision reached by the UT in remitting this appeal to the FtT. However, the specific point does not appear to have been raised before the UT and is one of some importance. Consequently, albeit with considerable hesitation given the constitution of the UT in its earlier decision, I consider this is a matter which should again be looked at by the UT.”
7. The present constitution of Tribunal was arranged specifically because of the history of this case; neither party objected to it.
8. The difficulty in interpreting precisely the effect of the statement under s 120, and the obligations of the Tribunal (at either level) are not wholly resolved by the decision of the Court of Appeal in AS (Afghanistan) [2009] EWCA Civ 1076. The notice under s 120 (as in force at the relevant date) enabled a person to state:
“(a) his reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, [or]
(c) any grounds on which he should not be removed from or required to leave the United Kingdom.”
9. The Tribunal was, as we have said, required to take them into account, and under s 86(2)(b), the Tribunal was required to determine those matters. But, as we have already pointed out, that requirement extends only to such matters in the statement as “constitute a ground of appeal of a kind listed in s 84(1) against the decision appealed against”. In the present case the decision appealed against was (on the larger interpretation encouraged by para 113 of AS) the refusal of leave. The question is therefore the extent to which any of the grounds available in s 84 are raised by this appellant’s notice under s 120.
10. As was clear before Judge Murray, the applicant has never formally withdrawn his application for indefinite leave to remain. That is a major difficulty in his claim (which was at the heart of the grant of permission by Judge Grubb) that he is no longer seeking indefinite leave to remain. Even though he has in effect abandoned his claim to indefinite leave to remain as a work permit holder, it is that application, and its refusal, that is the only foundation for the existence of an appeal at all. There are, however, further difficulties. First, there is no suggestion, either in the statute itself or in AS, that a statement made in response to a s 120 Notice is itself an application. It is, indeed, perfectly clear that it is not an application. It is rather a way of bringing matters of substance before the Tribunal without making an application. The Tribunal is required to determine such grounds of appeal as are raised by the Statement, but it is not the Tribunal’s task to determine applications. That consideration reduces still further the appellant’s scope for saying that there was any other application in issue than the application for indefinite leave to remain.
11. Yet another difficulty is that, although the Immigration Rules provide the context for determinations on appeal, they are addressed to executive decision-makers and are formulated with a view to the decisions they make on the applications before them. Thus, although the ground that the decision was not in accordance with the Immigration Rules is a ground that would be available to an applicant making a statement in response to a s 120 Notice, it is far from easy to see how that could benefit the appellant in this case, because paragraph 322(1C) clearly applied to the application that was made and to the only application that ever has been made. As the decision of the Upper Tribunal makes clear, refusal of that application was mandatory. As we understand it, the position in relation to the appellant’s statement is that, because of his long-standing relationship with his wife and residence in the United Kingdom, he might have been entitled to leave to remain under article 8 outside the Immigration Rules, but, as Judge Murray decided, it would not be disproportionate to refuse him on the basis of the application he had actually made, because he had, readily available, the possibility of making a proper application for such leave.
12. In that context, the Presenting Officer’s decision to indicate that he was content that the appeal should be allowed is not in any sense an obvious one. We do not know, and we do not need to know what motivated it. This was not, however, an appeal which was obvious that the Secretary of State could not win. It may well be that Mr Matthews, with his experience, was able to take the view that this was a case in which, despite the procedural defects, the applicant should be treated as if he had made an application. Mr Matthews may also possibly have been motivated by appreciation of the changes in the Immigration Rules, the processes for application on the basis of family life, the fees, the rights of appeal, and the developing jurisprudence on all these issues since the facts of the present appeal arose.
13. We accepted Mr Matthews’ view in response to the grounds of appeal. The appellant’s appeal is therefore allowed. We do not, however, think that this case comes near to a case which merits a wasted costs order. As we see the case, the Secretary of State’s position was clearly worth defending. That Mr Matthews decided on the Secretary of State’s behalf not to defend it is a pure advantage to the appellant.
14. For these reasons the appellant’s appeal is allowed. The application for a wasted costs order is refused.

C. M. G. OCKELTON
VICE PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 28 February 2017