Tribunal decisions

The decision

IAC-FH-ar-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/20866/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30 November 2016
On 10 January 2017

Before

LORD MATTHEWS, SITTING AS AN UPPER TRIBUNAL JUDGE
DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

shashi kala awai
(ANONYMITY DIRECTION NOT MADE)
Respondent/Claimant

Representation:

For the Appellant: Ms A Fijiwala, Specialist Appeals Team
For the Respondent/Claimant: Mr A Fouladvand, MAAS

DECISION AND REASONS

1. This is an appeal by the Secretary of State against the decision of Judge Wyman allowing the appeal of the claimant on the grounds that she qualified for indefinite leave to remain under the Rules on the grounds of continuous lawful residence for a period of ten years.
2. The claimant made the application while she still had a considerable period of unexpired limited leave to remain. So it was an upgrade application and the appeal against the refusal was effectively an upgrade appeal. At the time of the decision and the hearing the claimant was here with extant leave to remain, a point which is acknowledged in the refusal letter.
3. The relevant facts are that on 22 October 2010 the claimant's appeal rights were exhausted in respect of the refusal of a previous application. On 29 November 2010 the claimant submitted an out of time application for leave to remain on the basis of her human rights under Article 8, ECHR. The application was refused with no right of appeal on 5 January 2011. The Secretary of State received a reconsideration request and on 4 April 2011 the decision to refuse leave to remain was maintained. On that day the claimant was served with removal papers as an overstayer. There was then a considerable gap of many months before on 1 December 2011 the claimant submitted an out of time application as a spouse of a settled person. The application was refused with no right of appeal on 10 May 2012.
4. On 4 September 2012 the claimant applied for judicial review, and to cut quite a long story short eventually the claimant was successful in her judicial review application. On 23 October 2013 her judicial review claim was conceded and the claimant was granted leave to remain on the basis of family life valid from 22 November 2013 until 22 May 2016.
5. In the refusal letter written in response to the application for indefinite leave to remain on the grounds of continuous lawful residence of ten years, the contention of the Secretary of State was that the claimant was without lawful leave between 23 October 2010 and 21 November 2013, a period of approximately three years and twenty nine days. As such the period of continuous lawful residence was considered to have been broken at this point.
6. The claimant's appeal against this decision came before Judge Wyman sitting at Harmondsworth on 29 April 2016. Both parties were legally represented.
7. In her subsequent decision, the judge noted the immigration history to which we have referred. At paragraph [36] she noted that eventually the claimant was granted leave to remain on the basis of her family life. She continued in paragraph [37] as follows:
However during this period from 2010-2013, the [claimant] was not removed from the United Kingdom, did not leave the UK and was not convicted of any offence. I therefore find that she did have continuous residence during this period of three years from November 2010 onwards.
8. The judge then turned to consider the much shorter period of 38 days during which the claimant accepted that she did not have valid leave i.e. from 22 October 2010 until 29 November 2010. The judge found that the claimant had a good excuse on medical grounds for the delay in making a fresh application, and that therefore the period of 38 days without leave should not be treated as interrupting the period of continuous lawful residence, applying the relevant Home Office Policy Guidance.
9. We do not consider it necessary to review the finding which the judge made on the shorter period of 38 days. The key issue is whether the judge was right in law to hold that the claimant qualified for indefinite leave to remain on the basis of the facts set out in paragraph [37] and the answer to that question is plainly no. Whilst the claimant was continuously resident in the UK during that period she was not continuously lawfully resident as she was not enjoying 3C leave. She did not have any existing leave and by virtue of the fresh application being made out of time in November 2010, the application could not possibly give her leave that she did not otherwise enjoy. The judge also overlooked the point that this first out of time application was refused with no right of appeal, and there was then a very long gap before the appellant made her second application which was also out of time.
10. This is why the question of whether the Secretary of State should have exercised discretion with regard to the claimant's initial delay in making the first out of time application is academic, because the first application failed and there was then a lengthy gap before the second application was made. So, on any view, this was not something that the appellant could appeal against retrospectively; and there was no question of the Secretary of State being called upon to exercise retrospective discretion so as to transform what was a long period of illegal residence in the United Kingdom as an overstayer into a period of lawful residence.
11. By way of resistance to the error of law challenge made by the Secretary of State, Mr Fouladvand submits that the principle of common law fairness justifies the judge's approach. Since the claimant was eventually granted leave to remain, he submits that the slate should be treated as being wiped clean, not only going forwards but also looking backwards. But ultimately what matters is the application of the Rules. The Rules are very clear as to what the position is. The claimant does not qualify for indefinite leave to remain under the Rules.
12. Mr Fouladvand also raises the question of whether this appeal raises wider Article 8 issues. We are satisfied that it does not. The Secretary of State advisedly did not look beyond the narrow question as to whether the claimant qualified for indefinite leave to remain under the Rules. This was because she did not want to prejudice the claimant in respect of any future application she might wish to make to extend her leave to remain on a different ground. There is also no cross-appeal in respect of the First-tier Tribunal judge's approach, which was to confine her deliberations to the narrow question of whether the claimant qualified for indefinite leave to remain under the long residence rule.
13. So we find that this appeal by the Secretary of State should be allowed, and that we should remake the decision in her favour.

Notice of Decision

The decision of the First-tier Tribunal contained an error of law, and accordingly the decision is set aside and the following decision is substituted: the claimant's appeal is dismissed.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Monson

TO THE RESPONDENT
FEE AWARD

As we have dismissed the appeal, there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Monson