Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23193/2015
IA/23194/2015
IA/23195/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On: 1st September 2016
On: 5th September 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

The Secretary of State for the Home Department
Appellant
And

Mehmet [D]
Sevgi [D]
[A D]
(anonymity direction not made)
Respondent

For the Appellant: Mr Harrison, Senior Home Office Presenting Officer
For the Respondent: Ms Khalaf, Chamberlain Immigration Services

DECISION AND REASONS
1. The Respondents are all nationals of Turkey. They are respectively a husband, wife and their minor son. On the 22nd December 2015 the First-tier Tribunal (Judge J Lebasci) allowed their linked appeals against decisions to refuse to grant them Indefinite Leave to Remain following a period of four years' continuous residence in accordance with the European Community Association Agreement with Turkey ('the Ankara Agreement'). The Secretary of State for the Home Department now has permission to appeal against that decision1.

Background
2. The primary Respondent Mr [D] had been living and working in the United Kingdom since at least November 1996. He has latterly been doing so in accordance with the Ankara Agreement.
3. By operation of the 'standstill clause' at Article 41 of the Additional Protocol signed in 1972 the Secretary of State is obliged in such cases to apply the terms of the Immigration Rules as they stood at the date that the United Kingdom acceded to the European Community: HC510, applicable in January 2013. Paragraph 28 of HC510 provides that a person admitted at the first instance to work and who has remained in the United Kingdom for a continuous period of four years, may have the restrictions on the period of stay removed "unless there are grounds for maintaining it". One such ground for maintaining the restriction on stay is if the individual has committed a criminal offence in the 24 months preceding his application. The application for indefinite leave was therefore refused on the grounds that on the 29th July 2013 Mr [D] was convicted of affray and given a sentence of a 12 months' conditional discharge. Since this application was made only 13 months later, it fell to be refused.
4. The First-tier Tribunal accepted that Mr [D] had been convicted of affray within the 24 months prior to the decision being made. The appeal against the decision to refuse indefinite leave to remain was therefore dismissed since the Secretary of State had been entitled to maintain the restrictions on Mr [D]'s stay. The Tribunal went on to consider Article 8 ECHR. It recorded the very positive character references from various members of the community in which Mr [D] lives in Wales, including the local Councillor and MP who both attested to their personal knowledge of how he is successfully running a small business and providing much needed employment to local people. It had regard to the impact that removal to Turkey would have on his wife and child, as well as their extended family, friends and employees. Having further weighed into the balance the facts that Mr [D] has been in the UK lawfully, is financially self-sufficient and the relatively minor nature of his offending behaviour, the Tribunal found that the decision was a disproportionate interference with the family's Article 8 rights and allowed the appeal on Article 8 grounds.
5. The grounds of appeal, drafted on the 30th December 2015, submit that the Tribunal failed to direct itself to the statutory considerations set out at sections 117A-D of the Nationality, Immigration and Asylum Act 2002 and that it had not identified that there were good reasons to go on to consider human rights, a submission for which the Secretary of State relied on the decision in Gulshan [2013] UKUT 00640 (IAC).

My Findings
6. The grounds of appeal are not made out. The fact that the determination does not expressly refer in terms to s117B does not matter since it is apparent that all relevant factors were taken into account in the balancing exercise. The substance of the provision was complied with and any failure to mention the Act was therefore immaterial: Dube [2015] UKUT 90. The strongest point made by Mr Harrison was in respect of s117(5) which mandates that little weight is to be attached to a private life which is established when the individual's status is precarious. He correctly points out that the Tribunal nowhere directs itself to attach little weight to Mr [D]'s private life. However he also had to agree that when that private life is of over 19 years standing it makes little sense to attach no weight to it at all.
7. As for the Gulshan ground, it is now established that neither that case nor Nagre [2013] EWHC 720 (Admin) provided any authority for the proposition that there is a "two stage" test to be applied in considering whether a decision is unlawful under Article 8: R (on application of Sunnassee) v Upper Tribunal (IAC) & Anor [2015] EWHC 1604 (Admin), MM (Lebanon) v Secretary of State for the Home Department [2014] EWCA 984.
8. The real difficulty with the decision is not identified in the grounds. That is that the Tribunal should not have embarked on an Article 8 assessment at all. this was not, contrary to the suggestion in the determination, a removal case. There was no question of this family being removed to Turkey because they continue to exercise treaty rights under the Ankara Agreement. There was no removal decision nor 'section 120 notice'. In those circumstances neither party had any business making submissions on Article 8 at all: Amirteymour & Ors (EEA appeals, human rights) [2015] UKUT 00466 (IAC).
9. Any error in that respect is, at the date of the appeal before me, immaterial. That is because at today's date Mr [D] prima facie qualifies for indefinite leave to remain on two distinct grounds. His single conviction is now well behind him and it is open to him to make a new application for indefinite leave to remain under HC510. He has continued to exercise his treaty rights, has been doing so for well over four years and there is now no reason to maintain the restriction on his stay. Alternatively he now qualifies for leave under paragraph 276ADE (3) of the Immigration Rules since he has been continuously resident in the UK for 20 years. His conviction for the minor offence of affray does not engage any of the 'suitability' provisions. There being no apparent obstacle to him being granted indefinite leave in either capacity there is no utility in the Secretary of State's appeal being allowed on grounds other than those argued.

Decisions
10. The determination of the First-tier Tribunal does not contain a material error of law and it is upheld.
11. There is no order for anonymity.

Upper Tribunal Judge Bruce
2nd September 2016