Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21489/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd February 2017
On 10th March 2017

Before

UPPER TRIBUNAL JUDGE JACKSON

Between

mr zahid hussain memon
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Z Malik of Counsel
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant appeals against the decision of First-tier Tribunal Judge Ford promulgated on 26 September 2016, in which his appeal against the Respondent’s decision to refuse his application for further leave to remain on the basis of long residence, family life and/or private life dated 26 May 2015 was dismissed on human rights grounds.
2. The Appellant is a national of Pakistan, born on 3 January 1973 who first entered the United Kingdom as student on 2 September 2004, following which his leave to remain was extended in the same category until March 2007. The Appellant left the United Kingdom in January 2007 and re-entered on 11 February 2007 with a work permit visa valid until 25 January 2012. The Appellant made an application for indefinite leave to remain having spent five years in the United Kingdom as a work permit holder but this was refused on 19 September 2012 and his leave to remain was also curtailed to end on 19 November 2012. The Appellant unsuccessfully challenged that refusal by way of application for Judicial Review, the dismissal of which is currently the subject of an application for permission to appeal to the Court of Appeal.
3. The Appellant made a further application for indefinite leave to remain on 5 November 2014 on the basis of ten years’ continuous lawful residence which was refused on 26 May 2015.
4. The Respondent refused the Appellant’s claim for indefinite leave to remain based on long residence on the basis that his continuous residence was broken by the earlier refusal of leave to remain on 19 September 2012. The Respondent also refused to grant the Appellant leave to remain as a partner under Appendix FM of the Immigration Rules as his spouse was not a British national nor settled in the United Kingdom and there were no insurmountable obstacles to family life continuing outside of the United Kingdom; and under paragraph 276ADE of the Immigration Rules as there were no very significant obstacles to the Appellant’s reintegration into Pakistan.
5. The Respondent issued a supplementary refusal letter on 7 July 2016 following the Appellant’s disclosure that he had a son born on 8 October 2014, which also refused leave to remain on the basis that it was not contrary to the child’s best interests to do so.
6. At the hearing in the First-tier Tribunal, Judge Ford refused the Appellant’s application for an adjournment pending the outcome of his application for permission to appeal to the Court of Appeal. The Appellant’s appeal had been adjourned on two previous occasions for this reason but refused on the basis that it was not in the interests of justice or fairness to adjourn the matter further – the Respondent would be obliged to review the decision on continuous residence in the event that the application for Judicial Review was ultimately successful.
7. Judge Ford dismissed the appeal in a decision promulgated on 26 September 2016 on human rights grounds. It was found that the Appellant could not meet the requirements of the Immigration Rules because he had only been lawfully resident for eight of the twelve years he had been in the United Kingdom (even though that point was the subject of an application for permission to appeal against the refusal of his application for Judicial Review on that ground); that neither his wife nor child were settled in the United Kingdom or British nationals and they could enjoy family life together in Pakistan. The Appellant was a trained engineer who would be able to find employment in Pakistan, even if at a lower level than he had been working in the United Kingdom; there were family ties to Pakistan; there were no language or cultural barriers to reintegration in Pakistan and the refusal was not damaging to the child’s best interests. Overall, the refusal was not a disproportionate interference with the Appellant’s right to respect for private and family life under Article 8 of the European Convention on Human Rights.
The appeal
8. The Appellant appeals the decision of Judge Ford on three grounds. First, that there was procedural unfairness in the refusal of his application for an adjournment pending determination of his outstanding application for permission to appeal in the Court of Appeal (and if permission is granted, the substantive conclusion of those proceedings). Secondly, that Judge Ford failed to fully evaluate all of the relevant facts, looking at the Immigration Rules in both 2012 and 2016 in just relying on the dismissal of the application for Judicial Review. Thirdly, that Judge Ford failed to give appropriate weight to the Appellant’s period of lawful leave to remain in the United Kingdom between 2007 and 2012.
9. Permission to appeal was granted by Judge Keane on all grounds on the basis that it was arguable that that the correct test of fairness for an adjournment was not applied; that it was arguable that Judge Ford misdirected himself in finding that the judgement of the High Court in an application for Judicial Review was binding and therefore arguable that he failed to consider and accord weight to the extent that the Appellant satisfied the immigration Rules; finally it was arguable that weight should have been accorded to private life established during the Appellant’s period of lawful leave to remain in the United Kingdom.
10. At the hearing, it was submitted on behalf of the Appellant in relation to the first ground of appeal, that the refusal of the application for an adjournment was unfair on the basis that the outcome of the appeal against the dismissal of the application for Judicial Review (assuming permission was granted to appeal) is a relevant material consideration in the Appellant’s appeal and further that there were no reasons for the change of approach from the previous two successful applications for adjournment on the same basis. If the Appellant is ultimately successful in his application for Judicial Review, then he must succeed in the present appeal as he would have had continuing lawful leave to remain at the very least on the basis of section 3C of the Immigration Act 1971 as his earlier application for leave to remain on the basis of five years’ lawful residence as a work permit holder would become outstanding again.
11. The oral application for permission to appeal is listed in the Court of Appeal in May 2017, permission having been refused already on the papers. On this timetable and given that permission had not been granted yet, it was submitted on behalf of the Respondent that the Appellant was seeking a very long period of adjournment which was inappropriate and unnecessary. In any event, it was submitted that the outcome of the application for Judicial Review was not directly relevant to the refusal under appeal as the Appellant’s lawful leave to remain was broken by the curtailment decision on 19 November 2012 which had not been challenged – the application for Judicial Review was against the refusal of leave to remain decision dated 19 September 2012.
12. On the second ground of appeal it was submitted that the First-tier Tribunal erred in finding that the High Court’s decision on the application for Judicial Review was binding when that was based not on a merits review as in an appeal but instead on whether there was a public law error in the decision – there was no substantive consideration of whether the Appellant met the requirements of the Immigration Rules in 2012, which remains a matter for the First-tier Tribunal even if the Appellant is ultimately unsuccessful in his application for Judicial Review. In response, the Respondent relied on the same point as in ground one that in any event the Appellant’s latest application for indefinite leave to remain must fail because his leave to remain was curtailed on 19 November 2012.
13. On the third ground of appeal, little was added by way of oral submissions on behalf of the Appellant. On behalf of the Respondent, it was submitted that the eight years’ lawful leave to remain had been taken into account and whether or not the period after 2012 was lawful was largely immaterial as the First-tier Tribunal had already taken into account the Appellant’s family and private life and made findings open to him on that.
Findings and reasons
14. The issue for me on the first ground of appeal is whether in refusing the application for an adjournment, the Appellant was deprived of his right to a fair hearing, as confirmed by the Upper Tribunal in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC). I do not find that he was. Although his appeal had twice been adjourned pending his application for permission to appeal, that did not preclude Judge Ford from considering the circumstances before him and refusing the adjournment. It is noted that the application for adjournment had also been refused on the papers by Judge McCarthy prior to the hearing. As at the date of the appeal hearing on 20 September 2016, there was an outstanding application for permission to appeal the dismissal of the Appellant’s application for Judicial Review of an earlier refusal decision and if ultimately successful, the Respondent would be obliged to review the decision on the Appellant’s continuous lawful residence in any event.
15. As at the date of hearing before me, the Appellant’s application for permission to appeal to the Court of Appeal had been refused twice, first by the High Court and secondly on the papers by the Court of Appeal and his oral application for permission to appeal would still not be heard for several months. The Appellant was seeking a very long-term adjournment of his appeal, as if he obtained permission there would be yet further delay before any substantive hearing of his appeal. In circumstances where it seems clear that if the Appellant was ultimately successful, the Respondent would be obliged to reconsider the issue of his continuous residence, there is no unfairness caused to the Appellant in proceeding with this appeal.
16. I do not accept the submission on behalf of the Respondent that the Appellant’s application for leave to remain must in in any event fail under paragraph 276B of the Immigration Rules due to the curtailment decision (which was said not to be subject to any challenge but is in fact referred to in the original application for Judicial Review) as this post-dated the Appellant’s first application for indefinite leave to remain. If ultimately successful in having that refusal quashed in his application for Judicial Review, then in any event, the application would remain outstanding to be considered by the Respondent such that his lawful leave to remain would continue under section 3C of the Immigration Act 1971, regardless of the fact that a different period of leave to remain was, after the date of application, curtailed. In any event, this point does not affect my finding that there was no unfairness in the refusal of the application for an adjournment.
17. I consider the second and third grounds of appeal together which concern the treatment of the Appellant’s leave to remain up to 2012 and situation thereafter. It is clear that the decision of the High Court in the application for Judicial Review considered whether, in public law terms, the Respondent’s refusal of the earlier application for indefinite leave to remain in 2012 was lawful and made no findings of fact or assessment of the merits as to whether the Applicant met the requirements of the Immigration Rules in 2012. To that extent, Judge Ford’s suggestion that he was bound by the decision without further explanation is unclear as it is not obvious in these circumstances what he considered himself to be bound by. However, that is not a material error of law in this appeal for the following reasons.
18. The Appellant claims that the error of law is the failure by Judge Ford to evaluate whether he met the requirements of the Immigration Rules in 2012 such that he should be considered as having lawful leave to remain beyond 2012 as a relevant factor in the balancing exercise under Article 8. There is however no evidence that any such submissions were made to Judge Ford in the course of the appeal to this effect. To the contrary, the Appellant’s skeleton argument simply asserts, albeit incorrectly, that the Appellant had lawful residence by virtue of his pending application for Judicial Review. Further, it has not been identified on what basis Judge Ford could have made such an assessment of whether the Appellant met the Immigration Rules in 2012 given that there was at best limited evidence of this and no submissions made on it.
19. In any event, Judge Ford recognised and took into account in paragraph 20 of his decision that the Appellant had been in the United Kingdom for twelve years, eight of which were lawfully and it is possible that the entire period was spent here lawfully. In reaching conclusions on the balancing exercise in paragraph 28, Judge Ford states that, as required, he attaches little weight to the private life of the Appellant and his family, which is consistent with treating the Appellant has having lawful leave to remain but such leave being precarious in accordance with section 117B(5) of the Nationality, Immigration and Asylum Act 2002. On the facts, Judge Ford has clearly considered and given appropriate weight to the Appellant’s period of lawful residence and whether or not the latter period was lawful does not feature adversely in his decision on proportionality for the purposes of Article 8. A fuller assessment of the Appellant’s ability to meet the requirements of the Immigration Rules in 2012 would not therefore advance his case in anyway and would be immaterial to the outcome.

Notice of Decision

The making of the decision of the First-tier Tribunal did not involve the making of a material error of law. As such it is not necessary to set aside the decision.

The decision to dismiss the appeal is therefore confirmed.

No anonymity direction is made.

Signed Date 10th March 2017

Upper Tribunal Judge Jackson