Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20262/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 15 November 2016
On 20 December 2016

Before

Deputy Upper Tribunal Judge MANUELL

Between

Mr PATRICK EROMONSELE EJALE
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B Hawkin, Counsel
(instructed by Gans & Co, Solicitors)
For the Respondent: Ms S Brocklesby-Weller, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

1. The Appellant appealed with permission granted by Upper Tribunal Judge Jordan on 21 September 2016 against the determination of First-tier Tribunal Judge Traynor, who had dismissed the Respondent's appeal asserting an entitlement to settlement based on 10 years' continuous lawful residence, pursuant to paragraph 276B of the Immigration Rules, a claim added by permitted amendment to his existing appeal seeking settlement under Appendix FM and/or Article 8 ECHR as the spouse of a United Kingdom settled person. The decision and reasons was promulgated on 23 March 2016.

2. The Appellant is a national of Nigeria, born there on 9 March 1969. By the date of the appeal hearing before Judge Traynor, the Respondent was no longer pursuing his Appendix FM appeal as the relevant relationship had ended. He relied on his wider family circle and his private life under Article 8 ECHR. The major part of the appeal was however devoted to the paragraph 276B claim. Judge Traynor found that the Appellant's leave had been broken between April 2007 and late 2009, when the Respondent had been granted fresh leave to remain. Judge Traynor further found that the Appellant's human rights appeal should be dismissed on proportionality grounds, the Appellant having been unable to meet any applicable Immigration Rules which indicated where the balance should be struck. There were no compelling circumstances. Hence the appeal was dismissed.

3. Permission to appeal was refused in the First-tier Tribunal but was granted in the Upper Tribunal because it was considered that it was arguable that the judge had erred procedurally by engaging in private research, specifically in relation to extracting from the archives a copy of the determination of a judge in appeal reference IA/020989/2007 on which Judge Traynor had relied when finding that the Respondent's leave to remain had been broken. Directions were made by the Upper Tribunal for the further conduct of the appeal.

Submissions

4. Mr Hawkin for the Appellant relied on the grounds of onwards appeal. In summary he argued that the judge had acted with procedural unfairness, although Mr Hawkin was bound to accept (having seen the detailed chronology prepared by Ms Brocklesby-Weller from Home Office records, which was accepted as accurate) that the evidence now available as to the issue of the Appellant's continuous lawful leave did not assist the Appellant. Materiality of any procedural unfairness was a matter for the Upper Tribunal. There was nothing which Mr Hawkin wished to add to the grounds of appeal lodged before the Upper Tribunal.

5. Ms Brocklesby-Weller for the Respondent had prepared a detailed chronology, which had been shown to Mr Hawkin to enable him to take instructions before the appeal hearing commenced. As noted, Mr Hawkin had been able to confirm that the chronology was accurate. For present purposes, it is sufficient to note from that chronology that the Appellant's appeal rights had become exhausted on 28 March 2007, at which point his section 3C leave had expired. The Appellant was next granted leave to remain on 9 September 2009. The gap was beyond any grace period permitted under paragraph 276B of the Immigration Rules. The 10 year claim failed and any error of law was immaterial. There was no challenge to the judge's other findings dismissing the Article 8 ECHR appeal. The decision and reasons should stand unchanged.

No material error of law finding

6. In the tribunal's view the grant of permission to appeal was generous, although greater latitude may be expected where questions of procedural fairness arise. But in the tribunal's judgment, study of Judge Traynor's decision and reasons shows that, far from straying into procedural unfairness, he acted with scrupulous fairness. As already noted, the paragraph 276B claim was a late addition to the Appellant's case, doubtless because his advisors thought that their client had clocked up 10 year's residence because of the delay in his appeal reaching a substantive hearing. Such situations have occurred with surprising frequency because of the limited resources made available to the First-tier Tribunal.

7. There was little doubt that the Appellant had been in the United Kingdom for 10 years, but the issue was whether that period satisfied the requirement of paragraph 276B that such period be lawful as well as continuous. As Judge Traynor noted at [13] of his decision, during the Appellant's evidence it emerged that there had been a previous appeal hearing. The determination was not available. There was no Home Office Presenting Officer at the first instance hearing. It was plainly material to the central issue in the appeal. The judge explained that he would obtain a copy, and give the Appellant the opportunity to comment if the determination needed any further explanation. As he explained, having received the determination, the judge reasonably decided that the determination spoke for itself and proved that the Appellant's leave to remain had been broken. There was nothing which the Appellant could possibly have said, as he advanced an Article 8 ECHR claim separately. The break in continuity is now accepted in the light of the chronology referred to above.

8. It is obvious that the steps taken by Judge Traynor were with the express consent of the Appellant who was legally advised. The Appellant should, of course, have had a copy of the previous determination himself, although nothing particularly turns on that. It would have been a complete waste of the Appellant's costs to have adjourned the hearing until the determination was available. It was a practical and fair solution, far removed from a judge conducting private research before or after a hearing without informing the parties and seeking their reaction or comment to any so material obtained.

9. The tribunal goes further: the steps taken by Judge Traynor were a necessary step in the interests of justice. Unless the facts had been properly ascertained, an incorrect judicial decision might have been reached and the Appellant would have received a benefit to which he had no entitlement. To the Appellant's credit, he now accepts that the evidence shows that his leave was broken, and there was no suggestion that the 10 year claim was advanced by anything more than a limited understanding of the law. The tribunal accordingly finds that there was no procedural unfairness and no error of law.

10. There was no substantive challenge to the dismissal of the Article 8 ECHR appeal, rightly as the claim was thoroughly examined in accordance with current authorities. The onwards appeal must be dismissed.

DECISION

The making of the previous decision did not involve the making of a material error on a point of law and stands unchanged

Signed Dated

Deputy Upper Tribunal Judge Manuell