Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/20065/2014
IA/20066/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 October 2016
On 27 October 2016

Before

THE HONOURABLE MR JUSTICE COLLINS
UPPER TRIBUNAL JUDGE SAINI

Between

GRACE [O]
[C O]
(anonymity direction NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Blundell, Counsel, instructed by Tuckers Solicitors
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS

1. This comes before us today as a result of a decision that was reached when I was sitting with Deputy Judge Juss back in February this year when we considered the appeal by the two appellants, mother and daughter, from a decision of the Secretary of State refusing their applications for leave to remain in this country.

2. What we said was that we had come close to allowing the appeal because we felt that merits were clearly on the side of the appellants and it would not do any harm to the immigration law of this country if the applications were to be allowed. But we took the view that we did not have available to us then all the information that might have been material because there were bundles which were available to the First-tier Judge but which for some reason were not put before us. We therefore decided that we should defer giving a final decision for 21 days.

3. We asked the Secretary of State to reconsider the matter and decide whether she was going to maintain the decision and if so to indicate the basis for so doing. If, as we hoped, she would decide in favour of the appellants then obviously there would be no need for the matter to come back. But if she decided otherwise then it was implicit in that order that the matter would have to come back to us.

4. The Secretary of State did make a further decision on 23 February. For reasons which are most unfortunate there was a delay in transcribing the judgment and formally promulgating it until August. However Mr Melvin who appeared before us then and who has appeared before us today had made a full note of what we decided and had notified the relevant department in the Home Office of what was required of them.

5. Regrettably the decision made on 23 February seems basically to have ignored the information given because all it does is to repeat, with two exceptions, what was in the original decision, the subject of the appeals. The original decision was one given in 2014.

6. The two exceptions were that it had been said in relation to the first appellant that is the mother, that she did not speak or it was not established that she spoke sufficient English. That was a nonsense since quite apart from anything else she clearly was fluent in English when the evidence was being given. It was said that that was a decision which had to be made because she had not gone through the test and therefore the official was entitled to form that view. All we say is that we would hope that a little bit of commonsense can be applied even though the Rules may require in certain respects a sort of tick box approach. However that is not now relied on and it seems to that maybe there has been some holding back on the assertion that there was financial independence in going through the requirements of Section 117B of the 2002 Act.

7. It is not necessary to go into detail into the background since it is set out in our previous decision. Suffice it to say that the wife of the first appellant and of course the father of the second, was a diplomat in this country and when, obviously whilst a diplomat, was entitled to be here with his family. When he ceased being a diplomat he was given leave to remain on the basis of being able to work here as a journalist and in 2009 he had leave to remain until 2012 and an indication was given in the letter in 2009 that he might then be eligible for the grant of indefinite leave to remain.

8. Before his leave came to an end in 2012 he made an application for leave to remain and of course these two appellants were here as his dependants. Unfortunately, his mother died shortly after he had made that application and it was necessary for him as the son to attend her obsequies in Nigeria. However, it was appreciated that the law is that if having made an application for leave to remain the applicant leaves the United Kingdom by section 3C(3) of the 1971 Act the leave will come to an end.

9. Accordingly he contacted his MP and in July 2012 the MP contacted the relevant body in the Home Office and explained the need for the father to go back to Nigeria to deal with her mother's funeral arrangements and was told, we are informed, that the caseworker gave the target date in September of that year. Regrettably, that was not kept. Far from it. There were two aspects. There was a need for an attendance to deal with biometrics.

10. Interestingly and surprisingly in February 2013 a letter was sent to the first appellant inviting her to enrol her biometrics and eight days after that a similar letter to the second appellant. They both as quickly as possible dealt with that aspect. It was not for five months that a similar letter was sent to the husband. But by then he had had to leave to go to Nigeria to deal with his mother because regrettably it seems there had been in the breakdown in the morgue and the result was that the mother's body was getting to a state where it was frankly going to be thoroughly unpleasant to deal with her. He had tried for as long as he could to avoid having to return.

11. The Home Office was well aware of the problem and it is significant that in the formal letters that they wrote they indicated that if there is a real problem including death or serious illness which may require an individual to leave, that should be brought to the attention of the Home Office and can result in expedition. It was in this case brought to the attention of the Home Office but it did not result in any expedition and it is to be noted that on the information that we have the father had maintained his position in a good job and there was no reason on the face of it to believe other than that he would receive a further leave to remain which could well have been an indefinite leave to remain, but of course we are not in a position to know whether that would in reality have resulted.

12. There is no question in our judgment but that the Home Office has been in the circumstances guilty of serious maladministration in the way that they dealt with the father's application. It is not mere delay, because as has been submitted to us, a period of something just over twelve months in reaching a decision is regrettably not something which is unusual in the way that the Home Office deal with these applications and we do appreciate and understand the pressures that there are upon the Home Office in having to deal with these matters, and it may well be that there are not enough caseworkers who are available.

13. Delay in itself if there is no reason to suspect it may be delay which ought not to have occurred for any reason, is not such as would normally give rise to an added feature to show that Article 8, which is what this case relies on, would though outside the Rules be permitted. But it does have relevance clearly in reducing the weight to be accorded to the requirements of firm and fair immigration control if the delay is shown to be the result of a dysfunctional system which yields unpredictable inconsistent and unfair results. That is a quotation from paragraph 16 of Lord Bingham's judgment in EB (Kosovo).

14. As we set out in our previous decision, the appellants have been here now for a significant number of years. In fact they only just missed the ten years residence so far as the daughter was concerned. Regrettably there was a muddle over the application because when the father left of course their leave also expired at the same time because their application was dependent upon his as his dependants.

15. We are told that they were rightfully advised by the solicitors that they then had appearing for them, although that will not in itself avail them because they are caught by any failures of those then representing them. However it is a factor that clearly one is entitled to take into account when assessing the overall position in relation to Article 8.

16. In any event, it took something in the order of six months for a valid claim to be lodged and the result was that there was a gap in lawful residence of that period, namely a period of six months. All this is material when considering the requirements both of the Rules and of Section 117B of the Act.

17. So far as the Rules are concerned, it was never suggested nor could it be suggested that they qualified under the provisions of the Rules. But the Rules are no more than an indication given to the courts and of course to the officials who have to deal with immigration matters as to what the Rules regard as the requirements to meet Article 8 in this context. But it is plain that the courts are not to be dictated to nor indeed are those responsible for immigration control because they have a responsibility under Section 6 of the Human Rights Act not to make decisions which breach a person's human rights and the decision that has to be reached is whether in a particular case removal would be proportionate, and in that exercise the burden lies upon the Secretary of State to establish that it would be proportionate. The burden is of course on the applicant to establish that there has been an interference with private law rights under Article 8. But there is no question but that that has been established.

18. What is said is that in the circumstances since the Rules set out and must be respected as to the approach to be adopted, there must be some exceptional circumstances to justify a decision in favour of an applicant under Article 8 when the Rules cannot be met.

19. The question then is how does one decide what is or is not exceptional. Exceptional as a word can mean no more than something outside the general provision but it has appeared to be considered, certainly up to and including the Court of Appeal, that what is needed is a qualitative approach to exceptionality and it has got to be something that is clearly special in a particular case. But we have no doubt whatever that looking at the background and circumstances of this case a delay which resulted in the problems that face these two because the father had to leave which was as we have indicated beyond doubt caused by maladministration. That is something which can properly be regarded as contributing to the exceptionality of the appellants' position in this case. As Deputy Upper Tribunal Judge Juss and I stated in February, we came close to deciding in favour of the appellants.

20. The further information detailing the manner in which they have been dealt with in the delay persuades us that it is indeed proper to allow this appeal.

21. We can only add this, that as we say the history of the way that the appellants have behaved, we put it that way, in this country, is nothing but good. They have worked and have contributed to this country.

22. Since we are allowing the appeal obviously the decision to refuse permission must be quashed or will no longer exist and consideration must be given to the appropriate leave that should now be granted. But we would urge the Secretary of State immediately to indicate that they have permission to work so that they can get back into becoming a benefit to this country.

Notice of Decision

23. For those reasons we are satisfied that this appeal must be allowed.

No anonymity direction is made.

Signed Date: 25 October 2016

Mr Justice Collins

TO THE RESPONDENT
FEE AWARD

No fee award was requested.

Signed Date: 25 October 2016

Mr Justice Collins