Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21653/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th March 2017
On 20 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

ms janet singh
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Nnamani, Counsel, Samuel Louis Solicitors
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of India born on 6th March 1962. The Appellant came to the United Kingdom on 30th July 2005 with a student visa valid to 31st January 2007. That leave was subsequently extended firstly as a student, secondly under the International Graduates Scheme and thirdly as a Tier 1 Migrant until 4th October 2009. The Appellant thereafter appears to have been an overstayer and on 27th March 2015 she applied for leave to remain in the United Kingdom on the basis of her family and private life. That application was refused by the Secretary of State by Notice of Refusal dated 29th May 2015.
2. The Appellant lodged Grounds of Appeal and the appeal came before Judge of the First-tier Tribunal Walters sitting at Taylor House on 18th July 2016. In a decision and reasons promulgated on 30th July 2016 the Appellant’s appeal was dismissed both under the Immigration Rules and on human rights grounds.
3. On 30th August 2016 Grounds of Appeal were lodged to the Upper Tribunal. Those grounds contended the First-tier Tribunal Judge had materially erred in law in reaching his decision for the following reasons:-
(a) that the judge had failed to apply all the applicable laws correctly in particular Section 3C of the Immigration Act 1971;
(b) had made material misdirections in law by drawing adverse fact-finding when assessing the income threshold under the partner route and in the alternative by relying heavily in a misunderstanding of the law when assessing discretion conferred under the Immigration Rules.
(c) had applied the wrong test at paragraph 47 with regard to the application of interference being necessary in the interests of the economic wellbeing of the country; and
(d) made unreasonable and perverse findings that the Appellant and partner could relocate to either of their respective countries in the circumstances of the Appellant’s case.
4. On 2nd February 2007 First-tier Tribunal Judge Grant-Hutchison granted permission to appeal. Judge Grant-Hutchison considered that it was arguable that the judge may have misdirected herself:
(a) by making a mistake as to a material fact in placing too much weight on the adverse finding that the Appellant’s leave had expired on 14th April 2010 after which she had become an overstayer when her leave was extended within the meaning of Section 3C until after her judicial review decision was dismissed in October 2014; and
(b) in carrying out the correct proportionality test when the judge states at paragraph 47 of the decision and reasons that interference is necessary in the interest of the economic well-being of the country through the maintenance of immigration control. Judge Grant-Hutchison considered that this could have made a material difference to the outcome of the fairness of the proceedings.
5. On 16th February 2017 the Secretary of State responded to the Grounds of Appeal under Rule 24. The Rule 24 response states that on the basis of the information currently available the Secretary of State does not accept that the Appellant had 3C leave as set out in the grounds and that there was no material error in the proportionality exercise conducted by the judge.
6. On 1st March 2017 there is a reply for the Rule 24 served by the Appellant’s instructed solicitors. That Rule 24 response makes reference to an extract from the findings in the Appellant’s judicial review in 2014 and contends that it is inaccurate to state that the Appellant did not have Section 3C leave. Further the Appellant repeats her grounds for seeking permission and in particular the Respondent’s Article 8 balancing act had reflected a material misapprehension of correct law.
7. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by her instructed Counsel Miss Nnamani. Miss Nnamani has had previous involvement with this matter having appeared on the judicial review before Upper Tribunal Judge Jordan in November 2014. The Secretary of State appears by her Home Office Presenting Officer Mr Tarlow.
Submissions/Discussion
8. Mr Tarlow starts by highlighting the issue. He points out that this case turns very largely on whether or not the First-tier Tribunal Judge was correct to find, as set out at paragraph 26, that the Appellant’s right to work ceased when she became “appeals right exhausted” on 14th April 2010 and that thereafter she became an overstayer and obviously would have no right to work. He submits the application herein consists of an immigration application and appeal and that that is completely different from judicial review which is an appeal against the executive and consequently the submitting of a judicial review application does not extend Section 3C Immigration Act 1971 leave (as amended by Section 118 of the 2002 Act). He submits that that was the finding reached by the judge and that she was entitled to reach that conclusion.
9. Miss Nnamani relies on the judgment in the judicial review proceedings under JR/732/2014 of Upper Tribunal Judge Jordan and submits that the Appellant had leave permitting her to work. She takes me to the historical paragraphs in Judge Jordan’s decision and to the request set out therein by a letter dated 23rd October 2010 relying upon policy guidance issued on 23rd July 2010 in response to the decision in Pankina. She points out that as Judge Jordan noted no decision was made on that application by 22nd November 2010 when a new policy was introduced and to the judge’s finding at paragraph 29 that the applicant fell within the category of claimant capable of benefiting from the policy and the Secretary of State’s duty was to treat the applicant as an individual whose appeal had been dismissed on maintenance grounds and to treat her exceptionally and reconsider her application in line with the judgment in Pankina provided a request to that effect had been made. She points out that in paragraph 43 albeit that the judge refuses the judicial review through lack of evidence of funds that she met the eligibility criteria for reconsideration under the November policy and consequently the 2010 decision is erroneous and that she would therefore have had the benefit of having her leave extended. Consequently she submits that the Appellant’s 3C leave is applicable and is extended by the request for consideration.
10. She states that it is important to give due consideration as to how Immigration Judge Walters has dealt with the Appellant’s status and her entitlement to work after she became an overstayer. She takes me to paragraphs 26, 27, 49 and 50 of the judge’s decision and submits that such findings are wrong and she was not an overstayer and that that is an issue that has been addressed in granting permission by Judge Grant-Hutchison.
11. She relies on all grounds and submits that the judge has applied the wrong test when considering proportionality. She notes that the judge has acknowledged that the Appellant has family life, then gone on to find that removal is necessary and appropriate and submits that if she is going to do that she must explain why. She notes that the Secretary of State relies on paragraphs 49 and 50 of the judge’s decision. The question is when addressing proportionality, firstly has the judge applied the correct test and secondly has she adequately explained why removal is justified in the circumstances. Further so far as relocation is concerned whilst it is more likely to be to India it could be to St Lucia and the judge has given in her submission only a cursory assessment of relocation. For all those reasons she submits there are material errors of law and that the judge has made findings of fact that are not correct and she asked me to overturn the decision and to remit the matter back to the First-tier Tribunal.
12. In response Mr Tarlow submits that taken as a whole the determination can stand and if there has been an error with regard to the Appellant’s ability to work that has not been mentioned in the conclusion to be found at paragraph 50. That disposes of the matter. He submits that the arguments under paragraph 3(C) are a red herring. He asked me to find that there is no material error of law.
The Law
13. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
14. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.

Findings on Error of Law
15. The principal thrust of the submissions made by the Appellant is that by full consideration of the decision of Upper Tribunal Jordan the Appellant had 3C leave and this was not properly considered by the judge, thus constituting findings of fact which were in error. It is pertinent to note that there seems to have been very little reference if any in the decision of the First-tier Tribunal Judge to the judicial review proceedings judgment of Upper Tribunal Jordan. I accept that Miss Nnamani is familiar with that appeal as she appeared before Judge Jordan and that she was not the attending Counsel for the First-tier Tribunal. The judge has made her findings on factual evidence that the Appellant’s right to work ceased when she became appeals right exhausted on 14th April 2010 and thus became an overstayer with no right to work. I acknowledge that if looked at against the findings of Judge Jordan who has given very detailed consideration to the historical facts of this case, in paragraphs 1 to 24 he found that the applicant fell within the category of claimant capable of benefiting from the policy as she met the eligibility criteria for reconsideration under the November policy but it is acknowledged that the Appellant did not meet the maintenance (funds) grounds of her original application.
16. The First-tier Tribunal Judge’s decision is well constructed. The lodging of judicial review proceedings do not as a matter of law extend an applicant’s rights under 3(C) Immigration Act 1971. Judge Walters consequently made findings that he was entitled to and has given reasons. The decision therefore discloses no material error of law. I agree with Mr Tarlow that in any event the judge has explained his reasons at paragraph 50 and the findings of UTJ Jordan do not negate the findings of the First-tier Tribunal.
17. The second issue is whether the judge has applied the correct test of proportionality. This is extensively addressed by the judge who has considered the statute and the facts of this case before making suitable findings. The decision discloses no material error of law.

Notice of Decision
The decision of the First-tier Tribunal Judge discloses no material error of law and the appeal of the Appellant is dismissed and the decision of the First-tier Tribunal Judge is maintained.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris 12th April 2017

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris 12th April 2017