Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23536/2012
IA/23538/2012

THE IMMIGRATION ACTS

Heard at Birmingham
Determination Promulgated
On 6 June 2013
On 7 June 2013

Before

UPPER TRIBUNAL JUDGE PITT

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Ojutule kennedy edeni

helen melekwe edeni

Respondents

Representation:

For the Appellant: Ms Plaess, Senior Home Office Presenting Officer
For the Respondent: Not represented

DETERMINATION AND REASONS

1. Both respondents are citizens of Nigeria. The first respondent was born on 20 June 1974. The second respondent was born on 3 June 1974. The respondents are married.
2. For this purposes of this determination I refer to the respondents as the appellants and to the Secretary of State for the Home Department as the respondent, reflecting their positions before the First-tier Tribunal. I also refer only to the case of the first appellant as that of the second appellant, his dependent in this matter, is on all fours.
3. This is an appeal by the appellant against the decision of First-tier Tribunal Judge Mulvenna dated 11 March 2013 which allowed the appeal of the appellant for leave to remain as Tier 1 (Post Study Work) Migrant.
4. Mr Edeni was present at the hearing. I explained the nature of the hearing to him. He asked some preliminary questions and provided additional evidence which was copied for Ms Plaess. Ms Plaess relied on the grounds of appeal. Mr Edeni set out his view of the history of his application and his degree thesis. Where relevant, I refer to what he said below.
5. I was then in a position to make a decision on the error of law.
6. I was satisfied that the decision of Judge Mulvenna disclosed an error on a point of law. It was my view that as of the date of the decision on 11 October 2012, Mr Edeni had not been awarded his MPhil degree, a requirement of paragraph 245F of HC 395 (the Immigration Rules). There was no dispute that minor corrections had been required in order for the degree to be awarded. There was also no dispute that the external examiner had not checked the minor amendments as of 11 October 2012. This was only confirmed in an email from the University of Birmingham dated 24 October 2012.
7. Mr Edeni sought to argue that he could still be considered as having been awarded the degree by 11 October 2012 as it was as certain as it could by that time that he would be awarded the degree as the changes required were minor. He also maintained that it was not his fault that the external examiners’ checks had not taken place by that date. I did not find that the requirements of the Immigration Rules allowed for anything other than the degree having been formally awarded by 11 October 2012, the date of the decision (taking into account that the case of Khatel & Others (s85A: effect of continuing application) Nepal [2013] UKUT 44 (IAC) extends the “date of application” up until the time that the respondent makes a decision on that application). Mr Edeni had not been awarded his degree by 11 October 2012. The email from the University of Birmingham dated 24 October 2012 stated that “the degree of MPhil can now be awarded” and “I have sent an award letter … today”.
8. I therefore found that Judge Mulvenna made an error on a point of law at [12] in finding that the Immigration Rules were met and that this error was such that the decision had to be set aside and re-made.
9. For same reasons, I had to refuse the appeal under the Immigration Rules for leave as a Tier 1 (Post Study Work) Migrant. Mr Edeni had to show that as of the date of application that he had been awarded his degree. Even taking the date of application as extending up until 11 October 2012, he had not been awarded his degree by that date. He therefore could not meet the requirements of paragraph 245F. The respondent was not required to wait until the degree had been awarded before making a decision. The respondent had already delayed making a decision for 6 months by 11 October 2012. The respondent did not act in any way unfairly in making a decision that date.
10. I considered the appeal brought under Article 8 of the ECHR. Mr and Mrs Edeni have a family life together in the UK, having come here in 2008 and lived together since then but I did not find that the respondent’s decision amounted to an interference with that family life that met even the low threshold required to engage Article 8 further. The couple can return to Nigeria together and continue their family life together there as they have in the UK. Mr Edeni drew my attention to the fact that Mrs Edeni has had surgery in the UK in connection with the couple’s wish to have children. There was nothing to suggest that they could not continue such medical procedures in Nigeria. I did not find that matter indicated that there would be an interference with their family life on return to Nigeria such that Article 8 was engaged.
11. I also did not find that it had been shown that the appellants had a private life that engaged Article 8. As conceded by Ms Plaess, they are highly impressive people. The appellant has obtained an MPhil related to the treatment of whiplash injuries and is working in a related field. His wife is studying. Both have undertaken a great deal of voluntary work here through their church and in the community, assisting prisoners and others. It remains the case that they both came with limited leave, that essentially being in order for Mr Edeni to obtain his MPhil. Those studies have been completed. They could not have had a reasonable expectation of further leave in order for him to obtain relevant work experience or for Mrs Edeni to study. At beset, that would always have had to have been dependent on the law and their circumstances at the time that any further application was made. The studies for which Mr Edeni came to the UK have ended and the possibility of a private life that might arise for a student that is set out in CDS (PBS: “available”: Article 8) Brazil [2010] UKUT 00305 (IAC) does not arise here.
12. I refused the appeals under Article 8 of the ECHR.

13. I should add that the respondent’s decision of 11 October 2012 contained an order under Section 47 of the Immigration, Asylum and Nationality Act 2006. It has been found by the Upper Tribunal in Adamally and Jaferi (section 47 removal decisions: Tribunal Procedures) [2012] UKUT 00414 (IAC) that such an order made in these circumstances is not in accordance with the law but that the unlawfulness does not infect the decision to refuse to vary leave to remain. I found that the First-tier Tribunal made an error on a point of law in failing to find the Section 47 removal decision to be not in accordance with the law. I also set aside that part of the decision and re-make it, finding, in line with Adamally and Jaferi, that the removal decision was not in accordance with the law. If the respondent wishes to remove Mr and Mrs Edeni, she will have to re-make that decision. I can only suggest, notwithstanding my formal legal findings under the Immigration Rules and Article 8, that she think seriously about whether she wishes to do so, rather than inviting the couple to make fresh applications, given the concession from Ms Plaess that they are highly impressive people, the potential benefits to the UK of their continued presence being obvious.
Decision
14. The decision of the First-tier Tribunal disclosed an error on a point of law and is set aside.
15. I remake the appeals as follows:
(i) The appeals under the Immigration Rules for further leave to remain as a Tier 4 Student are refused.
(ii) The appeals under Article 8 of the ECHR are refused.
(iii) The Section 47 orders are not in accordance with the law.

Signed Date: 6 June 2013

Upper Tribunal Judge Pitt