Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18127/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 January 2017
On 13 January 2017

Before

Deputy Upper Tribunal Judge MANUELL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MISS MEMORY KWADA
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondents: no appearance

DETERMINATION AND REASONS

Introduction

1. The Appellant (the Secretary of State) appealed with permission granted by First-tier Tribunal Judge PJM Hollingworth on 24 November 2016 against the decision and reasons of First-tier Tribunal Judge Wilsher who had allowed the Respondent's appeal against the Appellant's decision dated 29 April 2015 to refuse to grant the Respondent indefinite leave to remain on Article 8 ECHR private life grounds The decision and reasons was promulgated on 24 June 2015 following a hearing on 17 May 2015.

2. The Respondent is a national of Malawi, born there on 30 September 1996. She was brought to the United Kingdom by her parents, unlawfully, when she was 11, and was later taken into social services care. Her mother died in 2012 and her father returned to Malawi. Two of her brothers were removed to Malawi and another is serving a term of imprisonment in the United Kingdom. On 25 April 2014 she was granted 4 years leave to remain in accordance with Home Office policy concerning children in care: IDIs, Chapter 8, Chapter 8, Section 3.2. Thus the Appellant had leave to remain until 2018 and there was no suggestion of any revocation of that leave to remain. The Appellant's decision under appeal was reached on the basis that nothing had changed since the grant of leave to remain in 2014. The fact that a grant of ILR would assist the Appellant financially with regard to her plans to attend university was not a reason to grant her ILR, in effect prematurely. There were no exceptional circumstances justifying a departure from the Immigration Rules.

3. The facts were not contested. The Appellant has been in foster care and has started an art foundation course after finishing secondary school. There is a "stay put" arrangement for her care from the local authority which covers the Appellant until her 21st birthday. The Appellant said that she wanted to attend university but could not afford the fees.

4. Judge Wilsher found that the Respondent's private life claims succeeded under Article 8 ECHR. He referred to Tigere v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 and the revised policy for student loans issued by the Business Secretary following the Supreme Court's decision against the department. Noting that that the Appellant had not completed three years' ordinary residence so as to be eligible for a student loan under the new policy, nor had spent more than half her life in the United Kingdom to achieve settlement under the Immigration Rules, the judge found that it was in the Appellant's best interests for her to be granted settlement before September 2017, which would provide her with the requisite eligibility. The Appellant would then be able to start the university course for which she had been offered a place. The alternatives were destabilising for her. She remained vulnerable according to her social worker's evidence and her education had been her lifeline. The judge found that the decision to refuse the Appellant ILR ahead of the time when she would ordinarily become entitled to such leave was a disproportionate interference with the respect due to her private life. There was no reason to believe that the Appellant would be able to go to Malawi in 2018.

5. Permission to appeal to the Upper Tribunal as sought by the Appellant (the Secretary of State) was granted by Judge PJM Hollingworth because he considered that it was arguable that the judge had failed to provide a sufficient analysis of the compelling circumstances which justified consideration of Article 8 ECHR outside the Immigration Rules. Nor had section 117B of Immigration and Asylum Act 2002 been applied.

6. Standard directions were made by the Upper Tribunal indicating that the appeal would be reheard immediately if a material error of law were found. No rule 24 notice was filed on behalf of the Respondent.

7. Shortly before the hearing the solicitors on the record as acting on the Respondent's behalf withdrew as they had received no further instructions. The Respondent failed to appear at the hearing and there was no means of contacting her. The tribunal decided to proceed in the Respondent's absence as the essential facts were not in dispute and it was unlikely that an unrepresented appellant could assist the tribunal when all of the issues was of law only.

Submissions - error of law

8. Mr Avery for the Secretary of State relied on the grounds and the grant of permission to appeal. In summary he submitted that the judge's errors were manifest. There had been no consideration of paragraph 276ADE of the Immigration Rules. The appeal was about the Appellant's higher education, not her leave to remain which remained in place to 25 April 2018. The judge had simply engaged in free wheeling Article 8 ECHR decision making. There was simply no interference in the Appellant's private life at all. There was no justification for the judge's decision. Section 117B(5) had been ignored: the Appellant was not financially independent and indeed was a burden on tax payers. The decision and reasons could not stand and should be set aside, remade and dismissed.

The error of law finding

9. At the conclusion of submissions, the tribunal indicated that it accepted Mr Avery's submissions and found that the judge had fallen into all of the material errors of law of which the Secretary of State complained and in respect of which permission to appeal had been granted. The principles of important case law had not been applied, such as AM (S 117B) Malawi [2015] UKUT 0260 (IAC) and SS (Congo) [2015] EWCA Civ 387. There had not been a structured and balanced analysis, beginning with the fact the Appellant was not facing removal and all of the arrangements currently in place for her care and well-being remain. The judge failed to pause and ask whether Article 8 ECHR was engaged. The tribunal finds that it was not engaged because the Appellant's leave to remain remained in place and there was no suggestion of removal.

10. Indeed, with every respect to the capable and learned judge, it seems to this tribunal that (doubtless for the best of motives) he was led down the proverbial garden path. The Appellant has no right to free or subsidised university education and her eligibility for a student loan or other funding (e.g., a charitable grant) is entirely outside the remit and control of the Secretary of State for the Home Department. The decision to refuse the Appellant ILR prematurely, outside the Immigration Rules, in other words by applying the declared policy set out in those rules, had no effect on her private life as such at all. The Appellant was seeking an advantage for which, as the judge acknowledged, she was not entitled. Nor was any other person in her position. The judge had engaged in a quasi judicial review, entirely outside his statutory powers, and substituted his views for those of the Secretary of State for the Home Department.

11. There had been no challenge to the judge's essential findings of fact, which were as noted above not disputed and so would stand. The decision and reasons would otherwise be set aside and the appeal reheard immediately.

Submissions - fresh decision

12. For clarity the tribunal will now refer to the parties by their original designations in the First-tier Tribunal.

13. What can be said on the Appellant's behalf had she been present? It was clear that she speaks English but she is far from financially independent. Section 117B of the Nationality, Immigration and Asylum Act 2002 cannot be said to benefit her. Moreover and in any event, the Appellant is not facing removal and her current leave to remain continues.

14. Mr Avery relied on the reasons for refusal letter. Forman (ss 117A-C considerations) [2015] UKUT 412 (IAC) and Deelah and others (section 117B - ambit) [2015] UKUT 515 (IAC) provided further guidance on section 117B. The appeal was in short misconceived and hopeless.

15. At the conclusion of submissions the tribunal indicated that its determination was reserved. The tribunal's reserved decision now follows.

The fresh decision

16. The burden of proof in this appeal lies on the Appellant. It is necessary for the tribunal to decide the issues in this appeal under the Immigration Rules and in relation to non-risk assessed human rights matters on the standard of proof of the balance of probabilities. The tribunal may consider all relevant matters as at the date of the hearing as section 85 of the Nationality, Immigration and Asylum Act 2002 provides. Sections 117A-117D of the Nationality, Immigration and Asylum Act 2002 must be taken into account by the tribunal in assessing the Article 8 ECHR claim.

17. The findings of fact made by Judge Wilsher were not challenged and stand, so far as they fell within his jurisdiction.

18. The tribunal finds that the Respondent's decision not to grant the Appellant ILR ahead of the date on which she by the Immigration Rules will become eligible is not an interference with the respect due to her private life under Article 8 ECHR. The terms under which she would be eligible for a student loan in order to pursue her higher education have been set in a revised form following the guidance of the Supreme Court. The Appellant will become eligible in due course and she will either have to defer her higher education, seek funding from elsewhere, or work and study part time as many have always done.

19. There was nothing of substance to suggest that the consequences the decision for the Appellant would be so unduly harsh that they could be regarded as so out of the ordinary as to be compelling or exceptional. It is not as though the Appellant will never be able to study further and she, like everyone else, will have to learn that sometimes it is necessary to wait. The social worker's reports are in the tribunal's view unduly pessimistic and fail to consider the various options open to the Appellant, and that she will remain in the same caring environment as before. Thus there was no reason for the Secretary of State to consider the exercise of her discretion outside the Immigration Rules. The appeal must fail and is dismissed.

20. There was no need identified for an anonymity direction in this appeal and no submission to any such effect. The anonymity direction made by the First-tier Tribunal is revoked.

DECISION

The making of the previous decision involved the making of an error on a point of law. The tribunal allows the onwards appeal of the Secretary of State for the Home Department, sets aside the original decision and remakes the original decision of the First-tier Tribunal as follows:

The appeal is DISMISSED

Signed Dated

Deputy Upper Tribunal Judge Manuell

TO THE RESPONDENT
FEE AWARD

There is no fee award

Signed Dated

Deputy Upper Tribunal Judge Manuell