Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/20907/2015
IA/22594/2015
IA/22303/2015
IA/22248/2015
THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 February 2017
On 23 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Ms Georgina Ama Mensah
Mr Emmanuel Baidoo
Miss Zara Baidoo
Master Lexis Baidoo
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:

For the Appellant: Mr S Staunton, Senior Home Office Presenting Officer
For the Respondents: Miss S Anzani, Counsel, instructed by David Benson Solicitors

DECISION AND REASONS

Background
1. The appellant in this case is the Secretary of State. However, for the purposes of this decision I refer to the parties as they were before the First-tier where the appellants were Ms Mensah and her family.
2. The background of this case is that Ms Georgina Mensah, who was born 24 May 1975, her partner, Mr Emmanuel Baidoo, born on 11 September 1972, and their children, Miss Zara Baidoo, born on 25 May 2007, and Master Lexis Baidoo, born on 26 July 2009, are all citizens of Ghana and appealed the decision of the respondent, dated 19 May 2015, to refuse the family leave to remain on the basis of family and private life in the UK under the Immigration Rules. In a Decision and Reasons promulgated on 30 August 2016, Judge of the First-tier Tribunal Colvin allowed the third appellant's appeal under the Immigration Rules and the appeals of the first, second and fourth appellants on human rights grounds (Article 8).
3. The Secretary of State sought permission to appeal in an application dated 15 September 2016 on the grounds that the Judge of the First-tier Tribunal had made a material error of law. At paragraph [22] the judge had quoted from the Court of Appeal decision in MA (Pakistan) & Ors [2016] EWCA Civ 705. It was asserted that the judge at paragraph 23 of the determination stated that MA (Pakistan) was authority for the proposition that the poor immigration history of the parents cannot be considered as part of the assessment of the reasonableness test. It was stated that in fact MA (Pakistan) is binding authority for the opposite proposition, as can be seen in paragraphs 21 to 45 of that decision. The judge was required to balance the best interests of the third appellant against all aspects of the public interest, including the fact that the parents had a very poor immigration history and it was asserted that the judge had failed to do this, instead treating the conclusion on best interests as essentially determinative.
Preliminary Issue
4. Miss Anzani before me raised the issue of the respondent's application for permission to appeal to the Upper Tribunal, made to the First-tier Tribunal, being out of time. The decision of the First-tier Tribunal was promulgated on 30 August 2016 and it was indicated in the application that this was received on 31 August 2016. In the explanatory box at paragraph B of the application for permission to appeal to the Upper Tribunal it was stated, in relation to why the application was made late, that this was:
"Not applicable, application has been made on the fourteenth day since receipt of the determination."
However, the signature box on the application is dated 15 September 2016 and the fax details at the top of the form indicate that the application was received on 15 September at 15.01 and following.
5. The Tribunal Procedure Rules 2014 of the First-tier Tribunal set out the provisions in relation to the time limits for submission of applications for permission to appeal at paragraph 33:
"33. - (1) A party seeking permission to appeal to the Upper Tribunal must make a written application to the Tribunal for permission to appeal.
(2) Subject to paragraph (3), an application under paragraph (1) must be provided to the Tribunal so that it is received no later than fourteen days after the date on which the party making the application was provided with written reasons for the decision.
?"
6. Paragraph 6 of the Tribunal Procedure Rules 2014 provides as follows:
"Failure to comply with Rules etc.
6. - (1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction does not of itself render void the proceedings or any step taken in the proceedings.
(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Tribunal may take such action as it considers just, which may include -
(a) waiving the requirement;
(b) requiring the failure to be remedied; or
(c) exercising its power under paragraph (3).
(3) The Tribunal may refer to the Upper Tribunal, and ask the Upper Tribunal to exercise its power under Section 25 (supplementary powers of Upper Tribunal) of the 2007 Act in relation to, any failure by a person to comply with a requirement imposed by the Tribunal -
(a) to attend at any place for the purpose of giving evidence;
(b) otherwise to make themselves available to give evidence;
(c) to swear an oath in connection with the giving of evidence;
(d) to give evidence as a witness;
(e) to produce a document; or
(f) to facilitate the inspection of a document or any other thing (including any premises)."
7. Miss Anzani, in addition to relying on the fact, which was not disputed by Mr Staunton, that the application for permission to appeal was out of time, also relied on the Upper Tribunal cases of Boktor and Wanis (late application for permission) Egypt [2011] UKUT 442 (IAC) and Samir (FtT Permission to appeal: time) [2013] UKUT 00003 (IAC). I heard the parties on the preliminary matter and reserved my decision on both this matter and the substantive appeal.
8. Mr Staunton accepted that the appeal was submitted on 15 September, one day out of time. He could provide no explanation for that out of time submission, nor why the respondent failed to provide a reason for the application being submitted out of time, but he submitted that it must have been an oversight.
9. Miss Anzani accepted that whilst the Tribunal had the power, sitting as a Judge of the First-tier Tribunal, to extend time under Rule 6 of the Tribunal Procedure Rules 2014, she submitted that this was not a case where time should be extended. It was her view that the First-tier Tribunal had been misled, by the indication at B of the application, that the appeal was not out of time and that Mr Staunton's explanation, such that it was, was insufficient. There had been no real reason given.
10. I am not satisfied that this is a case where time should be extended. The Tribunal cases cited in relation to time being extended, which although they rely on earlier versions of the Procedure Rules, are of relevance. I note that in both cases it was the application of the Secretary of State that was out of time and in both cases that application had included an explanation for the application being out of time, which is not the case before me. Notwithstanding those explanations the Upper Tribunal did not accept the explanation for the lateness.
11. I have also considered, in addition to Rule 6, the overriding objective under the Tribunal Procedure Rules 2014 as follows:
"Overriding objective and parties' obligation to co-operate with the Tribunal
2. - (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes -
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
(3) The Tribunal must seek to give effect to the overriding objective when it -
(a) exercises any power under these Rules; or
(b) interprets any Rule or practice direction.
(4) Parties must -
(a) help the Tribunal to further the overriding objective; and
(b) co-operate with the Tribunal generally."
12. Whilst I reject Miss Anzani's proposition, which was not forcefully put, that the Secretary of State had sought to deliberately mislead the Tribunal in stating that the application was not out of time, nevertheless there has been an absence of any adequate explanation for the fact that it was out of time. I also note that in the Upper Tribunal cases relied on the time limit was just five days and the Upper Tribunal nevertheless refused to extend time, whereas in this case the application to the First-tier Tribunal had a time limit of fourteen days. There is no adequate, or indeed any, explanation as to why therefore it took fifteen days for the application to be made. It was also not suggested that there had been any mistakes, delays or breaches of the Rules by the claimants in this case. I consider the delay to be of some significance. Although a Judge of the First-tier Tribunal granted permission to appeal on 22 December 2016, it was not disputed by the parties before me that such a grant is conditional, and the question of whether time should be extended has to be considered as a preliminary matter.
13. I am not satisfied that it should be and I decline to extend time in this case. Accordingly, the appellants' appeals having been allowed by the First-tier Tribunal, that decision stands.
14. In the alternative, if I am wrong in relation to not extending time, I am not satisfied that the substantive grounds of appeal are made out. The judge quoted from MA (Pakistan) & Ors [2016] EWCA Civ 705 at paragraph [22] of the decision.
15. The judge went on at paragraph 23 to find as follows:
"It is also clear from this case that it is possible for there to be circumstances where it is considered that the child's best interests are to stay, but nevertheless it may still be not unreasonable to require the child to leave. However, it emphasises that in making these assessment (sic) the conduct and immigration history of the parents cannot be considered."
16. Looking at the first half of this paragraph, the judge has got the test right in that she directs herself that, notwithstanding the best interests of the child being to stay in the UK, the reasonableness assessment under the Immigration Rules can still go against the family. The latter part of paragraph [23] could have been expressed with greater clarity, in that when the judge refers to "these assessment" (sic) the judge fails to say that it is explicitly the assessment of the best interests that cannot include any consideration of the conduct and immigration history of the parents. The judge went on to find at [24] that it was not reasonable to expect the child to leave the UK.
17. I am satisfied, reading the judge's decision holistically that she was aware of the correct test, that reasonableness must include a consideration of other factors including the immigration history of the parents. This is underlined where she finds, when considering Article 8 in respect of the first, second and fourth appellants at paragraph [26], that "it has to be acknowledged that the immigration history of the first and second appellants is not good", nevertheless she goes on to consider that this does not alter the proportionality assessment "which is firmly based on the best interests of the third appellant remaining in the UK".
18. I am satisfied therefore that the judge did have the right test in mind and the fact that her findings at 23 might have been structured more clearly is not a material error of law.
19. The decision of the First-tier Tribunal must stand, because the Secretary of State did not have in time permission to appeal, but secondly, if I am wrong, no material error of law is disclosed.
Notice of Decision

The decision of the First-tier Tribunal does not disclose an error of law and must stand.

No anonymity direction was sought or is made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

I make a full fee award.

Signed Date

Deputy Upper Tribunal Judge Hutchinson