Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22277/2013

THE IMMIGRATION ACTS

Heard at Field House
On 17 June 2014
Determination Promulgated
On 27 June 2014

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

DW
(anonymity order made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr D Magne (Solicitor)
For the Respondent: Mr P Deller (Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant whose date of birth is 11 January 1978 is a citizen of Sri Lanka. She appealed a decision made by the respondent on 28 May 2013 refusing her application for further leave to remain in the UK as a Tier 2 (General) Migrant. The appeal was heard before First-tier Tribunal Judge Napthine and promulgated on 26 February 2014. The judge dismissed the appeal on immigration and human rights grounds.

2. This matter comes before me for consideration as to whether or not there is a material error of law in the determination before the First-tier Tribunal.

Background

3. In the reasons for refusal the Secretary of State relied on Appendix A and the codes of practice under paragraph 245HD of the Immigration Rules. The appellant did not meet the requirement at paragraph 245HD(f). The appellant's certificate of sponsorship matched most closely to occupation code 421 which was not on the list of NQF level 6 occupations, as specified in the codes of practice. The skill for the job that the appellant is being sponsored for should be at least NQF level 6. The appellant failed to show that she met the requirements for long residence.

4. In a determination the judge took into account that the Immigration Rules changed on 14 June 2012 and the appellant's occupation now appeared on the list of NQF level 6 occupations. The appellant qualified for the NQF level 4 occupation and was previously granted leave on 15 August 2012 on the basis of that qualification, notwithstanding that she did not meet the requirements of the rules at that time. At paragraph 17 the judge concluded that as the rules had changed before the current application for an extension of leave was made, he was unable to apply the rules existing pre 14.6.2012. At paragraph 19 the judge rejected the submission that by incorporating a period of leave under the statutory "3C leave" the appellant would acquire ten years' lawful residence by 17 March 2014. The judge considered that this was not a circumstance in his contemplation as it was an event in the future. The Judge dismissed the appeal on immigration and Article 8 grounds.

Grounds of Appeal

Ground One

5. The judge failed to consider relevant circumstances in existence at the date of the hearing (Section 86(4) of the 2002 Act) when assessing evidence in calculating ten years' continuous residence. The judge failed to consider leave pursuant to Section 3C Immigration Act 1971 which was within the remit of the Tribunal to determine.

Ground Two

6. The judge erred by failing to properly apply Alvi v SSHD [2012] UKSC 33 which supported the argument that the Secretary of State ought to have applied the Rules in existence as at the date of the application. The changed Rules were not in force and ought not to have been applied. The codes were not incorporated until 19 July 2012.

Ground Three

7. The judge erred in his approach to private life and failed to properly identify what purpose was served by the maintenance of immigration control by relying on the ratio of Philipson v SSHD [2012] UKUT 00039. If paragraph 77D(ii) to Appendix A of the Immigration Rules protected those who have previously been granted leave on the basis of sponsored employment at NQF level 4, then arguably it followed that grants of leave to remain subsequent to 12 July 2012 on the basis of this skills level should also be protected on renewal.

Permission to Appeal

8. First-tier Tribunal Judge Grant-Hutchinson refused permission to appeal on 18 March 2014. At paragraph 2 she endorsed the judge's decision that as at the date of the hearing the ten year period had not been met and accordingly the appellant should make a separate application. She further observed that the period of the appellant's leave expired on 19 April 2013.

9. In paragraph 3 of the decision the judge rejected the argument that the principles of Alvi were not properly applied because the only appeal before the judge was against the respondent's decision dated 28 May 2013 in relation to the appellant's application dated 18 April 2013.

10. Dealing with the Article 8 issue, the judge reasoned that the Tribunal considered evidence of the appellant's private life, made appropriate findings and gave cogent reasons for coming to his decision placing weight on evidence as appropriate.

11. Renewed grounds of appeal requested an oral hearing for the permission application relying on grounds one to three.

12. Upper Tribunal Judge Freeman granted permission to appeal on the papers for the following reasons:

"On Ground one of the renewed grounds, there is a decision which, though not cited in them, may be in the appellant's favour, since it seems to suggest, though with strong reservations on the merits of the individual case, that the necessary ten years' residence, for the purposes of paragraph 276B, may be acquired by someone with only Section 3C leave pending appeal: MU ('statement of additional grounds'; long residence; discretion) Bangladesh [2010] UKUT 442."

Rule 24 Response

13. In a response dated 14 May 2014 the respondent opposed the appeal. At the date of hearing the appellant was not eligible for lawful residence under paragraph 276B Immigration Rules and which was distinct from the issue under the current appeal. The grounds of appeal have no merit and amount to a disagreement with the cogent findings of the judge who considered the evidence available to him and came to a conclusion based on the evidence, Rules and relevant law.

Error of Law Hearing

14. Mr Magne produced three bundles; bundle A submitted on 13 November 2013, bundle B submitted on 13 December 2013 and bundle C containing a skeleton argument and legal authorities. In addition he produced a list of references in support of grounds one and two only and set out his detailed arguments in a skeleton argument. Mr Magne addressed me at length cross referring at each stage to evidence in support identified in the bundles. I do not propose to repeat here the detailed submissions. In summary the first ground was the failure to apply the principles of Alvi and Adelola and that the judge erred by reaching a contrary decision as to the application of changes in the Rules with regard to the occupational codes. The second ground pertained to the argument that "3C leave "was a matter arising at the date of hearing and ought to have been taken into account by the judge in calculating the period of lawful leave. Mr Magne submitted that the judge erred in the determination by referring to changes in the Rules whereas in fact it was not the Rules that had changed rather guidance, which did not have the force of law. He submitted that the appellant made her application before new Rules came into operation which accounted for the previous grant of leave on 15 August. The respondent applied Rules in existence as at the date of her application. With regard to the 3C point Mr Magne submitted that the appellant had acquired ten years' lawful residence less 28 days (a permissible period to be disregarded) and that her leave under 3C was entirely foreseeable by dint of the operation of procedural and statutory Rules having regard to the dates by which the determination was to be promulgated. It was not a speculative event but was a relevant matter arising before the Tribunal.

15. Mr Deller submitted that the simple fact was that the appellant was unable to meet the requirements of the Rules which included the NVQ level 6 occupation at the time she renewed her application. The Rules are subject to alteration and change from time to time and what happened previously was irrelevant to the decision applying the requirement of an NVQ level 6.

16. Mr Deller forcefully submitted that it would be remarkable if the combination of Section 85(4) 2002 Act together with "3C leave" resulted in giving the Tribunal power to waive the need to meet calculable periods of time where those requirements were not met. The judge could not be expected to rely on the concept of 3C leave and take a decision that was speculative and not a foregone conclusion. The statutory provision exists to afford protection where ground of appeal have been issued and a lawful decision is awaited.

Discussion and Conclusions

17. I find no merit whatsoever in the second ground of appeal notwithstanding MU (cited above). The issue in MU concerned the serving a statement of additional grounds in response to a Section 120 notice and contemplated that an appellant may accrue ten years' lawful leave (including leave extended by Section 3C of the 1971 Act) while his appeal was pending. I find the argument put by Mr Magne is somewhat different in complexion and although MU was not relied on at the First-tier Tribunal, the issue is pursued on the basis that 3C leave was a matter arising at the date of hearing and ought therefore to have been in the judge's consideration. I find no material error of law in the judge's determination. The judge clearly stated in his determination that it was open to the appellant to make a fresh application under the Rules in the event that she met the required period of lawful residence. As at the date of hearing it was by no means a certainty that the appellant would in future acquire ten years' lawful leave having regard to the effect of 3C leave and having regard to the statutory and procedural powers covering hearings and promulgation of determinations. It is plain that the judge considered the argument, rejected the same and gave sound reasons for so doing at [19] of the determination.

18. With regard to the first ground of appeal I find that the judge made his decision having considered all the arguments put before him and reached a conclusion open to him namely, that at the time the decision was made the Secretary of State applied the Rules in force at that date. The judge found no support for the argument that the provisions applicable at the date the application for leave under Tier 2 was made, ought to have applied. He relied on Miah v Secretary of State for the Home Department [2013] QB 35. Mr Magne pursued his appeal with force and made meticulous references in support however, I conclude that the force of his argument was essentially a disagreement with the decision made by the Secretary of State rather than any error of law on the part of the Tribunal judge.

Decision

19. I dismiss the appeal. The determination shall stand.

Signed Date 24.6.2014

Deputy Upper Tribunal Judge G A Black

Anonymity direction made

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 24.6.2014

Deputy Upper Tribunal Judge G A Black