Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16887/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 17 August 2016
On 23 August 2016

Before:

UPPER TRIBUNAL JUDGE GILL

Between

Mohammad Abdur Razzaq
(ANONYMITY ORDER NOT MADE)
Appellant

And

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr S Karim, of Counsel, instructed by Uzma Law Ltd
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction and background facts:
1. The appellant, a national of Pakistan born on 30 November 1980 who arrived in the United Kingdom on 30 June 2007 with leave as a student, has been granted permission to appeal to the Upper Tribunal against a decision of Judge of the First-tier Tribunal Housego (hereafter the "judge") promulgated on 15 December 2015 dismissing his appeal against the following decisions of the respondent:
i) a decision dated 15 April 2015 to curtail his leave so as to expire on 15 April 2015.
ii) a decision dated 20 April 2015 to refuse his application of 13 May 2014 for leave to remain ("LTR") in the United Kingdom as a Tier 2 (General) Migrant.
2. Both decisions were taken on the same facts, which were stated to be as follows: that, as part of his application dated 13 May 2014, the appellant had submitted a Certificate of Sponsorship ("CoS") print out purporting to have been issued by Acorn Lodge (Bournemouth) Ltd which displayed the certificate number: C2G4Q7U8IHZ. The respondent was satisfied that this document was false because the UK Visas & Immigration Sponsor Investigations Team had confirmed by email that the certificate number in question did not appear when cross checked on their systems. In addition, the respondent considered that the certificate number was clearly in the wrong format for a UK Visas & Immigration CoS reference number.
3. However, whilst the facts upon which the curtailment decision and the decision to refuse leave to remain were the same:
i) the curtailment decision was made on the ground that the appellant had made false representations for the purpose of obtaining leave to remain by submitting a false CoS. The appellant's leave was therefore curtailed under para 323(i) with reference to para 322(2) of the Statement of Changes in the Immigration Rules HC 395 (as amended) (hereafter referred to individually as a "Rule" and collectively the "Rules"); and
ii) the decision to refuse LTR was made on the ground that he had submitted a false document in relation to his application of 13 May 2014. His application was therefore refused under para 322(1A) of the Rules.
4. The judge made the following findings:
i) The appellant had unambiguously withdrawn his application of 13 May 2014 by a letter dated 24 June 2014 sent by Lincoln Law Chambers who had lodged his application of 13 May 2014.
ii) The respondent did not have a power not to permit a withdrawal. It followed that the decision to refuse LTR was "otherwise not in accordance with the law" because there was no application which could be refused. The judge therefore allowed the appeal. However, in the "Notice of decision" section of his decision, he said that his decision simply meant that the respondent's decision was a nullity because the reason the appellant's appeal against that decision succeeded was that there was no application to be refused.
iii) He dismissed the appeal against the curtailment decision, finding that the appellant had knowingly used false documents.
5. It will be seen that, whilst the judge decided the appeal against the curtailment decision on the basis that the appellant had knowingly used false documents, the curtailment decision was made on the ground that the appellant had made false representations. Upper Tribunal Judge Allen raised this point in his decision to grant permission to appeal.
6. The respondent filed two responses under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the "UT Rules"), dated (respectively) 27 July 2016 and 1 August 2016. In the second response, she raised an issue of jurisdiction, i.e. that, pursuant to the coming into force of the amendments to s.82 of the Nationality, Immigration and Asylum Act 2002 (the "2002 Act") by the Immigration Act 2014 (Commencement No. 3, Transitional and Savings Provisions) Order 2014 (SI 2014/2771) (hereafter the "No. 3 Order") as amended by the Immigration Act 2014 (Commencement No. 4, Transitional and Savings Provisions and Amendment) Order 2015 (SI 2015/371) (hereafter the "No. 4 Order"), the appellant did not have a right of appeal against either of the decisions.
7. I heard submissions on the jurisdiction issue and having considered the parties' submissions carefully, I have decided that the appellant did not have a right of appeal against either of the decisions. Accordingly, the judge did not have jurisdiction to hear the appeal. My reasons are given below.
8. It is therefore unnecessary for me to deal with the remaining submissions as to whether the judge had materially erred in law in assessing the issues that were argued before him although I do so to a limited extent at paras 16-17 below. However, I shall record the submissions made to me which were as follows:
i) The curtailment decision was made under para 323(i) with reference to para 322(2) of the Rules. Mr Karim submitted that it is clear from these provisions that the power to curtail leave is available only in the circumstances set out in para 322(2). Whilst these circumstances include the making of false representations, they do not include the submission of false documents. The submission of false documents is the subject of para 322(1A). Accordingly, Mr Karim submitted, it was clear that para 322(1A) was not available to curtail leave.
Mr Wilding accepted that Mr Karim may be right in saying that para 322(1A) was not available to curtail an individual's leave.
ii) Mr Karim submitted that para 322(2) was not available to curtail leave due to the fact that, as the appellant had withdrawn his application, it could not be said that he had made a false representation "for the purpose of obtaining leave to enter or a previous variation of leave ?". This is because a withdrawn application should be treated as one that had never been made, in his submission.
In response, Mr Wilding submitted that the fact that an individual has withdrawn an application does not mean that the Secretary of State cannot proceed under para 322(2). He submitted that it is simply wrong to say that an application that has been withdrawn should be treated as never having been made. He submitted that it is simply wrong to say that the withdrawal of an application precludes the Secretary of State from invoking para 322(2). Mr Wilding submitted that the phrase "for the purpose of obtaining leave to enter or a previous variation of leave ?". in para 322(2) did not require leave to have been obtained by the making of false representations.
I pause here to draw attention to the fact that Mr Karim's submissions as set out above were not advanced before the judge.
iii) Mr Karim also initially raised an issue as to service of the two decisions, whereupon he advanced the submission (which was not argued before the judge) that the decisions have to be taken to have been served in a particular sequence. However, this point fell away when Mr Wilding pointed out that it was the appellant's own evidence that the two decisions were served on him in person simultaneously.
The savings and transitional provisions
9. It is not in dispute that, if the decisions in the instant case had been made by the respondent before 6 April 2015, the appellant would have had a right of appeal against each decision under s.82 of the 2002 Act. With effect from 6 April 2015 and subject to certain saving and transitional provisions as provided for in article 9(1) Commencement Order No. 3 as amended by Commencement Order No. 4, s.82 was amended so that a right of appeal only lies in respect of decisions to refuse, or to revoke, an asylum claim or a claim for humanitarian protection and decisions to refuse a human rights claim. The jurisdiction issue in the instant case depends on whether the savings and transitional provisions apply.
10. Article 9(1) as amended sets out four categories of cases in respect of which the appeals provisions that were in force immediately before the commencement date of the amendments (6 April 2015) continue to apply and the provisions of the 2014 Act do not apply. Mr Karim relied upon the second and third categories, i.e. article 9(1)(b) and (c). These provide (insofar as relevant):
(b) a decision made on or after 6th April 2015 to refuse an application to vary leave to enter or remain made before 2nd March 2015 where the person was seeking leave to remain as a Tier 1 Migrant or (as the case may be, Tier 2 Migrant or Tier 5 Migrant or ? and where the result of that decision is that the applicant has no leave to enter or remain.
(c) a decision made on or after 6th April (?) to refuse an application made before 6 April 2015, where that decision is-
(i) ?;
(ii) ?;
(iii) ?;
(iv) to refuse to vary a person's leave to enter or remain and where the result of that decision is that the person has no leave to enter or remain;
unless that decision is also a refusal of an asylum, protection or human rights claim.
Submissions on the jurisdiction issue
11. I shall set out the submissions in relation to the decision to refuse LTR followed by the submissions in relation to the curtailment decision.
12. In relation to the decision to refuse LTR, Mr Karim initially relied upon article 9(1)(b) but subsequently referred to article 9(1)(c)(iv). For the purposes of the instant case, there is no material difference between the two, given that the appellant's application was made on 13 May 2014.
13. Mr Karim submitted that the savings provision in article 9(1) (that is to say in article 9(1)(b) or 9(1)(c)(iv)) applied to the appellant's case notwithstanding that he withdrew his application by letter dated 24 June 2014 for the following reasons. The savings provisions do not refer to withdrawn applications. He submitted that it follows that the appellant's withdrawal on 24 June 2014 of his application dated 13 May 2014 was of no consequence. There was a dispute between the parties as to whether the appellant had withdrawn the application. Accordingly, the judge had jurisdiction to decide that dispute. Furthermore, the respondent had proceeded to decide the application notwithstanding that it had been withdrawn.
14. In relation to the decision to curtail leave, Mr Wilding submitted that the savings provisions relied upon could not apply because the curtailment decision was not made on an application and the reasons given for the curtailment did not refer to any application.
15. In response, Mr Karim acknowledged that the curtailment decision does not refer to any application having been made and therefore he accepted that it was not a decision on an application. However, he submitted that, as the decision to refuse LTR and the curtailment decision were served simultaneously, they could not be segregated. Accordingly, as one of the decisions (i.e. the decision to refuse LTR) was a decision on an application, the curtailment decision had to be seen in that light. In his submission, the fact that the application had been withdrawn was irrelevant because, he submitted, even withdrawn applications can benefit from the savings provision in article 9(1)(c).
Assessment
16. It is telling that, whilst Mr Karim submitted on the jurisdiction issue that a withdrawn application can benefit from the savings provisions in Commencement Order No. 3, he submitted, in relation to para 322(2) of the Rules, that a withdrawn application should be treated as one that had never been made. He cannot have it both ways.
17. There is no rule of interpretation that requires the Secretary of State or the Tribunal to turn a blind eye to the fact that an individual has made an application and has done so using false documents simply because he or she withdraws his or her application. The fact that the application has been made cannot be undone. That fact continues to exist. Thus, the appellant's withdrawal by letter dated 24 June 2014 of his application of 13 May 2014 operated to withdraw his application with effect from 24 June 2014 but it did not have the effect, as Mr Karim submitted in relation to para 322(2), that the application should be treated as one that had never been made.
18. In my judgement, Mr Karim's submissions on the jurisdiction issue are also misconceived. It is simply nonsense to say that an application that has been withdrawn can nevertheless benefit from the savings provision if the Secretary of State proceeded to make a decision on it. This simply cannot have been intended by Parliament. The correct answer is that, once the appellant withdrew his application by the letter from his representatives dated 24 June 2014, there was no longer an application that required a decision. The Secretary of State's purported "decision" dated 20 April 2015 to refuse LTR was a nullity. The savings provisions in article 9(1) do not apply to a decision that is a nullity on an application that had been withdrawn before the decision was made.
19. For the above reasons, the appellant did not have a right of appeal against the "decision" to refuse LTR. That decision was a nullity. The judge therefore did not have jurisdiction to entertain an appeal against the purported decision to refuse LTR. I therefore set aside his decision and proceed to re-make the decision on the "appeal" against the "decision" to refuse LTR by dismissing it for want of jurisdiction.
20. I turn to the decision to curtail leave.
21. Mr Karim accepted that the decision to curtail leave was not a decision on an application but he submitted that the savings provisions nevertheless applied because the fact that the curtailment decision was served with the decision to refuse LTR means that the two decisions cannot be segregated. There is no authority for this proposition which, in my judgement, is misconceived.
22. Since the decision to curtail leave was not a decision on an application, the savings provisions did not apply, in my view.
23. Accordingly, the appellant did not have a right of appeal against the curtailment decision. The judge therefore did not have jurisdiction to entertain an appeal against the curtailment decision. I therefore set aside his decision and proceed to re-make the decision on the "appeal" against the curtailment decision by dismissing it for want of jurisdiction.
Decision
The decision of the First-tier Tribunal on the appeal involved the making of an error on a point of law. I set aside the decision of the First-tier Tribunal on the appeal.
I re-make the decision on the appeal by dismissing the appellant's appeal against the respondent's decisions.

Signed Date: 19 August 2016
Upper Tribunal Judge Gill