Tribunal decisions

The decision

IAC-AH-LR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23196/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th November 2016
On 4th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

yalu rosse marie umaday diaz
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Subramanian
For the Respondent: Mr E Tufan

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge R Sullivan, promulgated on 22nd June 2016 following a hearing at Taylor House on 10th June 2016. In the determination, the judge dismissed the appeal of the Appellant, thereupon the Appellant applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a woman born on 29th April 1958 and is a citizen of Bolivia. She appealed against the decision of the Respondent dated 4th June 2015, refusing her application to remain in the UK on human rights grounds. The basis of the decision is that the Appellant did not have ten years' continuous lawful residence in the UK because she had in the past made applications for leave to remain which were more than 28 days out of time. She had not passed the "Life in the UK" test. Moreover, there were no very significant obstacles to her reintegration in Bolivia. There were no circumstances that would justify the grant of leave outside the Immigration Rules.
The Judge's Findings
3. The judge found that the Appellant, had arrived in the UK on 28th December 2000, did not have ten years' continuous lawful residence for the following two reasons. First, on 30th April 2003 she made an application for leave to remain in the UK which was 30 days out of time. This meant that her leave was not extended by the operation of statute. She then made two further applications which resulted in the grant of leave to her on 21st June 2013. This meant, however, that she was without leave for approximately two months and 22 days. This exceeded the period of overstay discounted by paragraph 276B(iii) of the Rules. Second, on 6th November 2014, the appellant's application for leave to remain in the UK was made approximately three years seven months and six days out of time. This meant that her last leave to remain was not extended by statute. She was without leave in the UK and has been, since 31st March 2011.
The Hearing
4. At the hearing before me on 24th November 2016, Mr Subramanian relied on the Grounds of Appeal before Judge Sullivan and the permission grounds for this Tribunal. He submitted that the refusal letter is dated 4th June 2015, and although at the bottom of page 3 (of 8) it is said that, "consideration has been given to your application ?," there is only one reference to the 2003 decision. Even though the Appellant did not satisfy the "Life in the UK" test there was a failure by the Secretary of State to exercise a discretion. The judge did not express an opinion on the failure by the Secretary of State to do so. On the day of the hearing before Judge Sullivan, the Respondent authority was unrepresented. However, at paragraph 21 of the determination, the judge rightly considered the Home Office guidance of 8th May 2015. At page 22 of this guidance it is made clear that periods without leave may be disregarded. However, the judge did not decide whether the discretion was exercised rightly or wrongly and should have done so.
5. Second, Mr Sullivan submitted that once it is recognized that in March 2011 the Appellant had accumulated ten years of lawful leave, then page 11 of the guidance comes into effect which states that once the ten years' continuous lawful residence has been built up then there is no limit afterwards on when a person can apply for further leave. The judge failed to appreciate the fact that the Appellant was ill and that was the reason even though she had accrued ten years of lawful residence, for her failure to take further steps. Indeed, at paragraph 30 of the determination, the judge accepts that she is not an expert to assess medical evidence, and yet goes on at paragraph 33 to conclude that the Appellant's condition was not serious. Yet, there was enough medical evidence, even in the Respondent's bundle, to confirm the Appellant's illness from 2011 to 2014. These matters all went to the Appellant's favour.
6. For his part, Mr Tufan submitted that there were a bundle of out of time applications made by the Appellant (see page 2 of the refusal letter). On 30th April the Appellant's application for leave to remain was 30 days out of time. On 6th November 2014, her application was over three years out of time. Second, that left the matter of whether discretion should be exercised, but there has to be "serious illness" and the threshold described for this is defined as being "high". The illness really has to be exceptional and even though the Appellant's mother died that did not bring it within that definition. Third, even if everything was in perfect order, the Appellant still would not succeed because she had not satisfied the "Life in the UK" test, and it had still not been completed. Any long term illness must "seriously restrict" the ability to comply with the Rules. Finally, as with Article 8, any suggestion that the judge had failed to follow the Razgar test is now superseded by the fact that the position in Singh & Khalid and in SS (Congo) now governs so that there have to be "compelling circumstances" before one can go outside the Rules, and there is nothing exceptional here.
7. In reply, Mr Subramanian submitted that at page 8 of the guidance it is made clear that if the Appellant satisfies paragraph 276B(i), (ii) and (v), then a further extension of leave must be granted on the basis of long residence. Second, as far as Article 8 is concerned, the judge could not possibly have overlooked the fact that the Appellant had been in the UK for eleven years of lawful stay during which time she had built up a private life which must be taken into account. Third, the guidance makes it clear that if the Appellant does not have any criminal convictions then there is no public interest in requiring her to return. He asked me to make a finding on an error of law and remit this matter back to the First-tier Tribunal again.
8. I am satisfied that the making of the decision by the judge did not involve the making of an error of law such that I should set aside the decision (see Section 12(1) of TCA 2007). My reasons are as follows. First, it is simply not true that the judge did not have regard to the exercise of discretion, or otherwise, by the Respondent Secretary of State. The judge expressly refers to the Home Office guidance published on 8th May 2015 (see paragraph 21). Consideration is then given to the fact that the guidance refers to short gaps in lawful residence of no more than 28 days, and it is observed that "this was not such a case", before reference is made "to the availability of discretion where there are exceptional reasons to explain why a single application was more than 28 days out of time".
9. The judge then goes on to look at various examples of exceptional reasons, such as a postal strike, hospitalisation or administrative error by the Home Office. What is important is the observation by the judge that, "there is nothing in the application form or its covering letter to suggest that when making her application the Appellant offered any explanation for the late submission of the April 2003 application".
10. Indeed, there appeared to have been an attempt by those representing the Appellant to gloss over matters that were clearly relevant to the late application in that the judge notes how it is that, "on the contrary in the covering letter her solicitors represented that the Appellant 'entered on 28th December 2000 and has been legal without any break until 31st March 2011'" (paragraph 23).
11. Rather than not give any consideration, the judge gave the fullest consideration to the issue of the exercise of discretion by the Respondent Secretary of State and cannot be faulted in her approach to this matter.
12. Second, the Appellant has not satisfied the "Life in the UK" test requirement, and as Mr Tufan pointed out, if one has regard to page 10 of 48 of the Home Office "knowledge of language and life in the UK" document it is made clear here that the Appellant's condition must be such as to amount to "long term illness or disability that severely restricts their ability to learn English or to prepare for life in the UK test". The judge dealt with this matter appropriately given the proper consideration towards all the relevant matters and there is no error of law in this respect either.
Notice of Decision
13. There is no material error of law in the original judge's decision. The determination shall stand.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 4th January 2017