Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22739/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 February 2017
On 27 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

Jowell Richard mitchell
(anonymity direction NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Hulse of Counsel instructed by Paul John & Co.
For the Respondent: Mr S Whitwell, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision of First-tier Tribunal Judge Emerton promulgated on 3 October 2016 dismissing the appeal of Jowell Mitchell against a decision of the Respondent dated 5 June 2015.

2. The Appellant is a national of Jamaica born on 17 November 1997. He entered the United Kingdom in May 1998, when he would have been only 6 months old, in the company of his mother and was granted six months’ leave to enter as a visitor. He has remained in the UK ever since. He became an overstayer upon the expiry of his leave and it was not until 1 April 2013, when he would have been 15 years old, that an application was made for leave to remain. The Appellant was granted 30 months’ leave to remain on 28 May 2013, valid until 28 November 2015.

3. The letter informing the Appellant of the grant of leave to remain is contained in the Respondent’s bundle before the First-tier Tribunal at Annex A. In material part the letter says this:-
“Consideration has been given under paragraph 276ADE of the Immigration Rules and you have been granted leave within the Immigration Rules under paragraph 276BE because we are satisfied that (iv) you are under the age of 18 and have lived in the UK continuously for 14 years. We are further satisfied that your mother is settled in the UK and has sole care of you.”

4. I pause to note that whilst it is explicit that the grant of leave is pursuant to the Appellant satisfying the requirements of 276ADE, and the grant and period of leave comes pursuant to paragraph 276BE, the language used in the final sentence of the paragraph quoted above does not mirror paragraph 276ADE so much as partially reflect some of the requirements of paragraph 298 of the Immigration Rules.

5. The letter of 28 May 2013 informing the Appellant of the grant of leave went on to provide information as to the future possibilities in respect of making applications for further leave to remain. Under the heading ‘What this means for you’ the letter said, in part, this:-
“In order to qualify for settlement you must have completed a continuous period of at least 120 months in the United Kingdom on with limited leave granted because of your family life.
Providing you continue to meet the relevant legislation at the time of application, you should apply for further leave prior to the expiry of your current leave via a charged application. Subject to meeting that criteria you will be given a further period of leave of 30 months.
You may need to make further applications and you will need to satisfy the Immigration Rules to take your leave to the necessary 120 months required for settlement.”

6. There is also provided in the letter further information in respect of the conditions attached to the Appellant’s leave, and in respect of future applications. It is to be noted that what is set out in that letter is an accurate reflection of the scheme of the Immigration Rules - the Immigration Rules of course being the primary mechanism by which the public interest in maintaining effective immigration control is implemented and protected.

7. I pause to note that the grant of leave to remain to the Appellant to 28 November 2015 took the Appellant’s leave beyond his 18th birthday which occurred on 17 November 2015. Upon reaching 18 he would have been able to place reliance upon paragraph 276ADE(v), and in accordance with the contents of the decision letter of 28 May 2013 would likely have been able to secure further limited leave to remain. In the alternative, if his application for limited leave to remain was made prior to his 18th birthday, he could have again relied upon paragraph 276ADE(iv) in respect of which the Secretary of State had expressed herself satisfied as of 28 May 2013.

8. However, on 2 April 2015, well ahead of the expiry of his leave, an application was made for indefinite leave to remain. The application letter is set out at Annex B of the Respondent’s bundle, and the SET(O) application form is set out at Annex C. The application is couched in the following terms in the representative’s letter of 2 April 2015:-
“We are instructed to act on behalf of the above named person with regard to his application for indefinite leave to remain in the United Kingdom as the dependent of a person who has got the certificate of entitlement to the right of abode.”

9. The letter went on to explain that the Appellant’s mother indeed had a Certificate of Entitlement to the Right of Abode and that “she wishes to apply for indefinite leave for her son to remain in the UK”.

10. It was also said in that letter that the Appellant had established a private and family life under Article 8 during the time he has spent in the UK.

11. I note from the accompanying documentation that nothing in particular was provided in support of the application, and nothing in particular was set out in the SET(O) application form in respect of the family’s finances.

12. The Appellant’s application was refused by the Respondent on 5 June 2015 for reasons set out in a ‘reasons for refusal’ letter (‘RFRL’) of that date. The RFRL identifies that the Appellant was seeking indefinite leave to remain outside the Rules and refers to the supporting evidence. It then says this:-
“Your case has been considered on an exceptional basis outside the Immigration Rules and therefore having considered all the circumstances of your particular case, it has been concluded that you have provided insufficient evidence which might justify allowing you to remain here on compelling and compassionate grounds on an indefinite basis. On 28 May 2013 you were granted 30 months leave to remain valid until 28 November 2015. You were granted 30 months as you met the requirements of paragraph 276ADE(iv) of the Immigration Rules. Our letter to you dated 28 May 2013 states the following ...”
There is then set out one of the passages from the previous letter advising the Appellant that he was, in effect, embarked upon a ten year route to settlement. The letter of 5 June 2015 then continues:-
“You have not completed 120 months in the UK with limited leave and you have not completed your current period of granted leave which does not expire until 28 November 2015. You therefore have extant leave and it is considered that there are no sufficiently compelling or compassionate circumstances to justify allowing you to remain in the UK outside the Immigration Rules on an indefinite basis. The Secretary of State therefore is not satisfied that leave to remain is being sought for a purpose covered by the Immigration Rules and is not prepared to exercise discretion in your favour. Your application is therefore refused under paragraph 322(1).”
The letter goes on again to indicate that the Appellant’s current leave remains and says this:-
“However, you hold leave to remain in the United Kingdom until 28 November 2015 and therefore, although your application has been refused, you are not required to leave the United Kingdom at this stage. This decision therefore does not constitute a breach of your Human Rights.”

13. It may be seen that at that time - upon receipt of the decision letter of 5 June 2015 - the Appellant still had some five months or so of his leave remaining. It was open to him at that point to make an application for further limited leave to remain, as had been advised in the leave grant letter of 28 May 2013, such advice being repeated in the letter of 5 June 2015.

14. However, the Appellant did not make any further applications for limited leave to remain, but instead appealed to the IAC.

15. The First-tier Tribunal Judge dismissed the appeal for reasons set out in his Decision and Reasons. The Appellant then sought permission to appeal to the Upper Tribunal, which was granted by First-tier Tribunal Judge Osborne on 25 January 2017.

16. In considering the appeal First-tier Tribunal Judge Emerton gave careful consideration to the circumstances leading to the decision of 5 June 2015 and the scope of the appeal before him. It is common ground before me today that the Respondent’s decision, having been taken on 5 June 2015 in respect of an application that raised issues of human rights and was otherwise treated as an application outside the Rules, was such that the appeal fell to be considered by reference to the available grounds under section 84 of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014. In other words, the ground of appeal available to the Appellant was that at Section 84(2) “An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under Section 6 of the Human Rights Act 1998”. The relevant passage in the Human Rights Act is at section 6(1) which is in these terms, “It is unlawful for a public authority to act in a way which is incompatible with a Convention right”. It is important in this context to understand that the effect of the Respondent’s decision was not that the Appellant was required to leave the United Kingdom, but that he was left with extant leave to remain and the opportunity of applying for variation or extension of that leave in due course. He was in reality in exactly the same position as if he had never made the application for indefinite leave to remain.

17. The Judge had the benefit of assistance from counsel for the Appellant and a Presenting Officer at the hearing. Although it is apparent that the counsel appearing for the Appellant had only recently been instructed, it also appears that she was able to identify the difficulties that the appeal entailed. The Judge says this at paragraph 2 of his decision:-
“Counsel had only recently been briefed, and she (like me) had evidently spotted that there was a problem with the appeal, in that the Appellant had evidently applied for indefinite leave to remain, when not yet eligible to do so; although it would appear that he might qualify for leave to remain under paragraph 276ADE, he had not applied for that. The Presenting Officer suggested that the only basis for allowing the appeal would be that the decision was unlawful, but the law had been correctly applied. The Appellant had applied while still under 18, when he still had leave to remain. Counsel suggested that the Appellant would need to rely upon Article 8 outside the Rules, and that what he should have done was to apply to extend leave under paragraph 276ADE, then to have applied for indefinite leave when eligible, which he would almost certainly have qualified for. I pointed out that there had been no decision to remove, as the decision was taken when there was still leave to remain, and asked the parties to comment on whether, if I decided that I had to dismiss the appeal, there would be a further right of appeal against any removal decision.”
It appears that neither of the representatives were able to assist the Judge in that matter, but in my view that was not relevant to the actual issues that were before the First-tier Tribunal.

18. Again, in terms of the scope of the appeal and the nature of the decision under challenge, the Judge - it seems to me accurately - identified at paragraph 13 the key element of the Respondent’s decision, which he expressed in these terms:-
“The Appellant had extant leave and there were no sufficiently compelling or compassionate circumstances to justify allowing the Appellant to remain in the UK outside the Rules on an indefinite basis.”

19. Indeed, as Mr Whitwell has pointed out during the course of submissions before me, the Presenting Officer also directed the Judge’s attention to the nature and scope of the issues that arose on appeal. This may be seen at paragraph 21:-
“The Presenting Officer, in her oral submissions on behalf of the Respondent, reiterated that leave to remain under 276ADE expired on 28 November 2013 [sic. – this is clearly a slip and should read 2015], and it had been made clear that the Appellant would need 120 months leave before he could apply for indefinite leave to remain (or settlement). If his solicitors made the wrong application, that had no bearing on the issues in this appeal. He had applied for ILR, when not eligible to do so, and that was the application which had been considered. He had been illegally in the UK until 28 May 2013, when his position had been regularised. The refusal letter was correct: he could not qualify yet for settlement. The Appellant did not use a ‘right of abode’ application form, and there were in any event no submissions as to how the Appellant might be eligible for that reason. That was not in fact the application pursued. In sum, the Appellant wanted to settle in the UK, but was not yet eligible.”
Continuing at paragraph 22:-
“... there were no exceptional circumstances justifying indefinite leave outside the Rules. The appeal was against the refusal of indefinite leave to remain, and should not be broadened to a wider consideration of whether the Appellant should be allowed to remain in the UK. The only matter to be determined was whether the Respondent was right to refuse indefinite leave to remain, and also whether there were compelling circumstances justifying granting indefinite leave to remain outside the Immigration Rules. There were not.”

20. The Judge picked up on the substance of the Respondent’s decision and the submissions of the Presenting Officer, and said this at paragraph 25 under the heading ‘My Consideration of the Case:-
“I have set out the background to the case in some detail, as well as the parties’ arguments. I consider that the reasoning in the refusal letter, and the Presenting Officer’s oral submissions at the hearing, are cogent and well-reasoned. I adopt that reasoning.”

21. The Judge went on to consider the counter-arguments advanced, noting however that Counsel had done “her best for her client, but there was not really very much which could be said”.

22. The Judge also made reference to expressions of expectation offered by both the Appellant and his mother as to his being granted indefinite leave to remain, commenting that neither of them had “set out a coherent argument” as to why the Appellant should be granted that particular status. It was noted that:-
“There is no coherent argument in the original application, in the grounds of appeal, or in their witness statements. Counsel has been instructed, but she has been unable to come up with anything better, albeit she has attempted to argue that there would be exceptional circumstances relating to Article 8”.

23. It seems to me, regrettably, that the Appellant’s application of 2 April 2015 was fundamentally misconceived. It is clear on the face of the covering letter that the Appellant was seeking to secure indefinite leave to remain for the sole reason that his mother possessed a Certificate of Entitlement to the Right of Abode. The application does not suggest for a moment that there was some mechanism under the Immigration Rules that would entitle the Appellant to an entitlement to indefinite leave to remain. The difficulty is that the application, beyond asserting that the Appellant’s mother is in possession of the right of abode, does not remotely articulate by what mechanism the Appellant would be consequently entitled to indefinite leave to remain. As the Judge points out, nor does any argument find articulation in the grounds of appeal or before the First-tier Tribunal Judge in submissions. Ms Hulse today, in turn, has acknowledged that she has been unable to identify any mechanism by which the mother’s right to abode would confer an entitlement to the Appellant to have indefinite leave to remain. It may well be that the Appellant’s mother, and possibly the Appellant’s advisers, have been influenced or have become confused by the fact that the Appellant’s mother’s other children have been granted British citizenship. However, as Ms Hulse has indicated during the course of submissions, all of those children were born in the United Kingdom and therefore it is understandable that they would have been entitled to citizenship pursuant to the British Nationality Act 1981 by virtue of being born in the UK to a person settled in the UK. That is not the case for the Appellant. As I say, there is nothing advanced at any stage, up to and including the decision of the First-tier Tribunal, to suggest by what mechanism the Appellant could have been granted indefinite leave to remain.

24. For the first time in these proceedings, some suggestion of a potential entitlement to indefinite leave to remain is made by reference to paragraph 298 of the Immigration Rules in ground 1 of the grounds submitted in support of the application for permission to appeal to the Upper Tribunal.

25. In my judgement paragraph 298 cannot avail the Appellant for the following reasons. The citation of paragraph 298 is incomplete in the grounds and only makes reference to 298(i)(c). It is to be accepted, and indeed was accepted by the Respondent in the decision of May 2013, that the Appellant’s mother had sole care of him. However, there is more to paragraph 298 than the requirement of sub-paragraph (i). There was no evidence advanced and no articulation of any case in respect of the maintenance and accommodation requirements of paragraph 298, either in the application or before the First-tier Tribunal. In all those circumstances it seems to me that it is too late in the day to be raising arguments in respect of paragraph 298 which, in any event, on its face does not avail the Appellant because there was simply no evidential foundation to demonstrate that he satisfied its requirements.

26. In short, the Appellant made an application asserting an entitlement on a foundation that quite simply does not give rise to any entitlement for indefinite leave to remain. It is hardly surprising that the Respondent refused that application, and it is hardly surprising that the Appellant’s Counsel before the First-tier Tribunal was unable to articulate any argument in respect of entitlement.

27. The error of approach by those advising the Appellant in his application, and possibly also in the understanding of the Appellant’s mother with regard to the consequences or the benefits of her right of abode, is compounded to some extent by the focus in part in the Grounds of Appeal before the Upper Tribunal upon arguments premised on the Appellant’s removal from the United Kingdom. So, for example, at Ground 4 under the heading ‘Exceptional circumstances - private life’ a submission is advanced that ultimately says this:-
“The Appellant has stayed in the UK for almost eighteen years now and therefore it was proper to consider whether his removal from the UK is proportionate and is in accordance with the Razgar test”.
This was not a case where the Appellant was facing removal, and again it seems to me that there is no substance in any criticism of the Judge not having considered the case on that basis.

28. Ms Hulse before me today has suggested a number of exceptional circumstances in the Appellant’s case: in particular she has emphasised that he arrived in the UK as a baby, that his other family members all have a right to remain, or more particularly that they have citizenship. She has also raised the prospect under the 120 month route of the Appellant having to make a number of further applications with concomitant expense, and she has also raised the spectre of uncertainty on the premise that the Immigration Rules may change at any time. It seems to me that that really is to reargue the case that was considered by the First-tier Tribunal and none of the claimed exceptional circumstances now advanced satisfy me that the First-tier Tribunal Judge fell into any error of law. In any event, for my part, I cannot see that any of those matters raised by Ms Hulse are genuinely exceptional to an extent that they justify granting the Appellant indefinite leave to remain as opposed to allowing him to continue on the slower route to indefinite leave by successive grants of limited leave. Ms Hulse’s submissions may find greater purchase in a removal case, but this is not a removal case.

29. In all of the circumstances it seems to me that the First-tier Tribunal Judge adequately and properly dealt with an appeal brought on a misconceived basis against a decision rejecting a misconceived application. I find no error of law and the decision of the First-tier Tribunal Judge will stand.

30. There has been some discussion before me today as to where that leaves the Appellant. Discussion has included consideration of whether the Appellant currently enjoys statutorily extended leave pursuant to section 3C of the Immigration Act 1971. I note that the Presenting Officer before the First-tier Tribunal, as recorded at paragraph 24 of the First-tier Tribunal Judge’s decision, considered that the Appellant did not have statutorily extended leave because when his application had been refused he had outstanding leave. Without deciding the matter – in respect of which I did not here detailed submissions – I offer the tentative view that it does seem that the Presenting Officer’s view is soundly based in the wording of the statute.

31. Looking forwards, Mr Whitwell has identified that there is no requirement to make an application under paragraph 276ADE that an applicant have outstanding leave; accordingly, even if the Appellant now finds himself without leave there is, on the face of it, no obstacle to him making an application again under paragraph 276ADE which might then hopefully get him back onto the ‘slow track’ of the 10-year route to settlement. Whether or not he will have to, in effect, start over again because of the disruption in his leave is really not a matter for me to consider, but it may be a matter that he wishes to be alert to and obtain appropriate advice. Inasmuch as the Appellant’s continuity of leave may have been disrupted by the making of the application of 2 April 2015 - and more particularly thereafter the pursuit of an appeal rather than the making of a further in-time application for limited leave to remain - it seems to me ultimately that is a matter between him and his legal advisers and I say nothing further on the point.

Notice of Decision
32. The decision of the First-tier Tribunal contained no error of law and stands.

33. No anonymity direction is sought or made.

The above represents a corrected transcript of an ex tempore decision given at the conclusion of the hearing.

Signed: Date: 23 March 2017

Deputy Upper Tribunal Judge I A Lewis