Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/22053/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 March 2017
On 9 March 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

Secretary of State FOR THE HOME DEPARTMENT
Appellant
and

YIBER GANJOLLA
(NO ANONYMITY DIRECTION)

Respondent

Representation:

For the Appellant: Mr P Nath, Home Office Presenting Officer
For the Respondent: No appearance

DECISION AND REASONS

1. This is the appeal of the Secretary of State but I will refer to the original appellant, a citizen of Kosovo born on 8 October 1978, as the appellant herein.

2. The appellant arrived in this country on 29 July 1998. On 2 April 2015 he applied for leave to remain on the basis of private life. This application was refused on 28 May 2015.

3. The appellant appealed and his appeal came before a First-tier Judge on 13 September 2016 as a paper appeal, the representatives being without instructions. Notice of hearing had been served on the appellant’s last known address. In the absence of any explanation for the appellant’s absence the judge decided to proceed with the appeal under rule 25.

4. Before me, again the appellant did not appear and I was satisfied notice of hearing had been served at his last known address. I was further satisfied that it was in the interests of justice to proceed under Rule 38.

5. The appellant in his witness statement said he had arrived in the UK on 29 July 1998 and claimed asylum. This application was refused on 27 May 2000. He had become appeal rights exhausted on 4 December 2000. He then absconded for 9 years. Since his arrival in the UK he had not left the country for 17 years. He had not had any contact with anyone in Kosovo since his arrival and had lost ties with his own country. He had worked until 2005 paying national insurance and since that time he had worked doing cash in hand jobs. He had made friends in the United Kingdom and had adapted to the British way of life. He had not claimed benefit and had not been a burden on the state. Apart from the statement from the appellant there were other statements before the First-tier Judge.

6. The judge said he could not make a proper assessment of the appellant’s credibility in his absence. There was no documentary evidence before him to confirm that the appellant had been living in the United Kingdom continuously for 17 years. While the judge was prepared to give the appellant the benefit of the doubt and accepted “that he no doubt has built up a private life in the form of building a network of friends who have supported him…” the judge was not satisfied that the appellant had lost ties with Kosovo or that there were significant obstacles to his integration to a new life there.

7. The judge found that the appellant had worked and lived in the United Kingdom with full knowledge of having no leave to remain and while he did have friends who had supported him in every respect the judge attached little weight to the relationships that had been formed during a period when the appellant was aware of his immigration status being precarious. It had not been suggested in submissions from the solicitors or in the appellant’s witness statement that he met the requirements of the immigration rules.

8. In considering the appellant’s claim outside the rules, the judge referred to SS (Congo) [2015] EWCA Civ 387 and Dube (SS 117A-117D) [2015] UKUT 90 (IAC). The judge concluded his determination as follows:

“10 On the totality of the evidence before me, I do not find that there are compelling or exceptional circumstances in this case that render the appellant’s removal a disproportionate interference to his family or private life.

11. In carrying out the balancing exercise, I have regard to the fact the appellant has established a private life over the course of the last 17 years. I have attach [sic] little weight to the friendships formed during the time, given the appellant had no leave and made no effort at regularising his status. I find on the totality of the circumstances in this case, there are no factors that accumulatively, render the respondent’s decision a disproportionate interference with the appellant’s private life. I do not find that there are any factors in this case do [sic] constitute compelling factors that render the appellant’s removal a disproportionate response to the interest of immigration control. I dismiss the appeal under Article 8 of ECHR.”

9. Under the heading “Notice of Decision” the judge said:

“I dismiss the appeal under Article 8 of [sic] ECHR Grounds.”

However these words were followed by a second “Notice of Decision” and under it the judge wrote “I allow the appeal under the immigration rules.”

Under the heading “Fee Award” the judge stated: “as I have allowed the appeal I have decided to make a fee award.”

10. The Secretary of State argued that the judge had reached inconsistent findings given that no representations had been made in relation to the rules and it was quite clear that the judge had not intended to allow the appeal under the rules. In the alternative it was submitted that the conclusion reached was unsustainable because there were absolutely no findings relevant to any application under the rules.

11. Permission to appeal was granted by a First-tier Judge who commented that that there appeared to have been a slip of the pen but the decision to allow the appeal could not sit with the earlier explicit findings.

12. Mr Nath invited me to find a material error of law and dismiss the appeal.

13. It is quite clear when the determination is read as a whole that the judge intended to dismiss the appeal under the immigration rules and indeed in paragraph 8 of the determination the records that “There is no suggestion in the appellant’s statement or his solicitor’s submissions that he meets the requirements of the Immigration Rules”.

No arguments to the contrary have been advanced on the part of the appellant.

14. Accordingly the determination is flawed by a material error of law in that the decisions are inconsistent and cannot stand. There is no challenge to the body of the determination and the reasoning could only have led to the appeal failing on all grounds.

15. I set the decisions aside and substitute fresh decisions:

1. The appeal is dismissed under the immigration rules
2. The appeal is dismissed on Article 8 grounds
Anonymity Order
The First-tier Judge made no anonymity directions and I make none.
Fee Award
The First-tier Judge made a fee award but this appears to have been a mistake. I make no fee award.

Signed Date 8 March 2017

G Warr
Judge of the Upper Tribunal