Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18828/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 July 2016
On 22 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

RIZWAN WAHEED
(ANONYMITY ORDER NOT MADE)
Respondent

Representation:
For the Appellant: Mr P Deller (Senior Home Office Presenting Officer)
For the Respondent: Ms C Bexson (counsel)

DECISION AND REASONS
1. This is the appeal of the Secretary of State against the decision of the First-tier Tribunal to allow the appeal of Rizwan Waheed, who had himself appealed against the decision of the Secretary of State of 19 January 2015 to refuse him leave to remain.
2. Mr Waheed entered the United Kingdom as a student on 2 November 2002 and his leave was extended by various grants of leave to remain for the purposes of study and work until 2 June 2011, when an application for leave as a highly skilled general migrant was refused; his subsequent appeal was dismissed and his appeal rights became exhausted on 31 January 2012. He then made the application leading to this appeal on 30 August 2014.
3. The Secretary of State refused his application because it was not accepted that had acquired ten years of lawful residence in the United Kingdom or that he was an appropriate case for the favourable exercise of discretion given the length of time by which he fell short of the requisite decade of lawful residence.
4. Mr Waheed appealed, whilst recognising that he lacked the relevant period of residence under the Rules, on the grounds that he had strong connections with this country.
5. The First-tier Tribunal allowed the appeal on the basis that it was important to bear in mind the impact of the immigration decision on the Respondent and his uncle. It was appropriate to give him the benefit of "discretion" in light of the matters drawn to the Judge's attention by counsel, who had emphasised in submissions that but for misguided advice from a former representative, the Respondent would have acquired more than ten years of lawful residence in this country.
6. The Secretary of State's grounds of appeal argued that the relevant Immigration Rules had not been identified or considered and that the First-tier Tribunal had failed to consider the case clearly outside the Rules under the staged enquiry required by the authorities with reference to the appropriate statutory criteria.
7. Judge Saffer granted permission to appeal on 26 May 2016 on the somewhat tart basis that the decision below was, to his mind, "tediously incompetent", the Judge having failed to engage with the case for the Secretary of State, to analyse what Judge Saffer styled as "glaring weaknesses" in Mr Waheed's case; and having, in general, ignored the law.
8. Before me Mr Deller emphasised the strong wording of the permission grant and relied on the grounds of appeal; Ms Bexson, whilst formally resisting the appeal, wisely made no substantive submissions as to the quality of the reasoning below.
Findings and reasons
9. Lord Bridge in Save Britain's Heritage v No 1 Poultry Ltd [1991] 1 WLR 153 stated that:
"The overriding test must always be: is the Tribunal providing both parties with the material which will enable them to know that the Tribunal has made no error of law in reaching its findings of fact? ... A party appearing before a Tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the Tribunal is addressing its mind. In some cases it may be perfectly obvious without any expressed reference to it by the Tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached."
10. I do not consider that the approach of the First-tier Tribunal is legally sustainable. The Secretary of State, as a party to the appeal, and the public, are entitled to expect that the judiciary will engage with the reasoning of a representative of the public interest in upholding immigration control. However poor the decision subject to appeal may be considered to be, it requires a minimal level of engagement before the judicial decision properly respects the separation of powers that is a hallmark of the rule of law.
11. There are no clear findings of fact from which one can determine the basis on which the law was applied. There is no reference to the relevant governing Immigration Rule, which should have been Rule 276ADE. There is no reference to the statutory criteria within section 117B of the Nationality Immigration and Asylum Act 2002 by which consideration of human rights claims outside the Rules should be conducted. The beguiling reference to the operation of "discretion" in the Respondent's favour has no apparent legal basis: if the First-tier Tribunal concluded that he had made his case under the Rules or outside them by reference to the protections afforded by the Human Rights Convention, then he was entitled to his appeal succeeding as a matter of right, not because of any discretionary consideration.
Decision:
The decision of the First-tier Tribunal contains material errors of law. As there are no lawful relevant findings upon which to build, the matter is suitable for re-hearing in the First-tier Tribunal. I accordingly remit the appeal to that forum.

Signed: Date: 28 July 2016

Deputy Upper Tribunal Judge Symes