Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24347/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination & Reasons Promulgated
On 16 March 2017
On 28 March 2017

Before

Deputy Upper Tribunal Judge MANUELL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MRS CORDELIA EBELE NNACHI
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr P Armstrong, Home Office Presenting Officer
For the Respondent: Ms A Evans, Counsel
(instructed by Obadiah Rose Solicitors )

DETERMINATION AND REASONS

Introduction

1. The Appellant (the Secretary of State) appealed with permission granted by First-tier Tribunal Judge Foudy on 4 January 2017 against the decision of First-tier Tribunal Judge Wilsher who had allowed the Respondent’s appeal against the Appellant’s decision dated 13 May 2014 to refuse to grant the Respondent leave to remain outside the Immigration Rules and to remove her. The decision and reasons was promulgated on 23 February 2016. Unfortunately this was the second time the appeal had been heard, as an error of law had been found when another First-tier Tribunal Judge had first heard the appeal. It is accordingly with great regret that the tribunal must order a further rehearing, as will be explained below.

2. The Respondent is a national of Nigeria, born on 6 October 1957. She had entered the United Kingdom as a visitor on 13 June 1997 and failed to leave the United Kingdom when that visa expired. She formed a relationship with a British Citizen, whom she married on 1 July 2003. The Respondent’s daughter from a previous relationship had been born on 23 December 1992. The daughter entered the United Kingdom on 23 October 2000. Eventually the daughter was granted leave to remain in her own right, on 27 November 2013. The Respondent made various applications seeking to regularise her stay but none was valid save an application made on 11 January 2010. That application was refused on 15 June 2010, without right of appeal to the First-tier Tribunal, yet the Respondent remained as an overstayer. On 22 March 2011 the Respondent sought reconsideration of the decision of 15 June 2010. By the time that was done, the Respondent’s daughter was over 18 and had, as already noted, been granted leave to remain. On 13 May 2014, the Secretary of State refused to grant the Respondent leave to remain, having considered Appendix FM in force from 9 July 2012 under the new Immigration Rules, and the applicable Article 8 ECHR considerations for both family and private life.

3. Judge Wilsher found that the Respondent was unable to satisfy the requirements of Appendix FM as a partner: there were no insurmountable obstacles to the continuation of the Respondent’s family life with her husband in Nigeria, nor were the financial requirements met. EX.1 was not applicable: see [7] of the decision and reasons.

4. The judge however allowed the Respondent’s appeal on the basis that she met the parent requirements of Appendix FM. The judge found that the decision maker had taken the Respondent’s daughter’s age as at the date of the decision, rather than the date of application. The daughter had been 17 as at the date of the application in January 2010. The judge’s reasoning is set out at [8] of the decision and reasons and need not be repeated here.

5. Permission to appeal to the Upper Tribunal as sought by the Secretary of State was granted by Judge Foudy because she considered that it was arguable that the judge had erred when finding that he was dealing with a 2010 decision, rather than a decision made in 2014 by which time the Respondent’s daughter was long an adult.

Submissions – error of law

6. Prior to the commencement of submissions the tribunal clarified with the parties that the decision under appeal to the First-tier Tribunal was that dated 13 May 2014, which was an immigration decision falling with section 82 of NIA 2002, in contrast to the decision taken in 2010.

7. Mr Armstrong for the Secretary of State relied on the grounds of onwards appeal and submitted that this was a clear case of legal error in relation to what was in substance an Article 8 ECHR claim. as the grant of permission to appeal indicated. By the time of the reconsideration the Respondent’s daughter was very much an adult. The judge had misdirected himself as the 2010 application was no longer relevant and had been determined. The Immigration Rules had changed from 9 July 2012. The request for reconsideration was in effect a new application. In any event, if that were wrong, the Respondent failed to meet the requirements of the Immigration Rules as she had been in the United Kingdom as a visitor and had no leave as a parent. The decision should be set aside and remade at a fresh hearing.

8. Ms Evans for the Respondent submitted that the judge had been entitled to find that the Secretary of State for the Home Department should have considered the position as at the date of the original application, when the Respondent’s daughter was under the age of 18. The reconsideration request was not an application. The judge had signalled his intended approach at the hearing (see [5] of the decision and reasons) and had recorded no objection from either side. In effect a concession had been made by the Home Office. The decision and reasons and reasons should be upheld.

9. In reply Mr Armstrong pointed out that there had been no evidence before the judge that the financial requirements had been met.

The error of law finding

10. The tribunal had the benefit of a constructive dialogue with the representatives during submissions. In the tribunal’s view, while there are attractions in the approach taken by Judge Wilsher, he was mistaken to find that the decision dated 13 May 2014 was simply a continuation of a process begun on 11 January 2010, when the Respondent made a further attempt to seek leave to remain on the basis of marriage to a person present and settled in the United Kingdom. The application dated 11 January 2010 was refused on 15 June 2010. As already noted above, there was no notice of immigration decision and so no right of appeal to the First-tier Tribunal. It is well established in law that there was no obligation on the Secretary of State to issue removal directions when refusing an application from an overstayer. The Secretary of State’s decision was complete in itself at that stage, absent a judicial review application.

11. According to the Respondent’s solicitors, the request to reconsider that decision was made by letter dated 22 March 2011. There the solicitors agreed that the Respondent should have returned to Nigeria to marry her husband but argued that this was not possible because of the husband’s health (a contention incidentally rejected by Judge Wilsher). It was admitted that the Respondent had worked in the United Kingdom illegally. A 14 year claim was also advanced.

12. It appears that the Secretary of State did not respond to that letter until 4 April 2014, when up to date information was sought from the Respondent’s solicitors. In effect the Secretary of State was seeking to know reasons why the Respondent should not be removed, which point was emphasised by the service of the section 120 NIA 2002 “one stop notice”. It was a new phase, potentially the long delayed enforcement phase.

13. As the Respondent was an overstayer with no leave to remain of any kind, there were no transitional provisions applicable to her and so the reconsideration, a voluntary act on Secretary of State’s part, was to be performed on the basis of the facts as at the date of the fresh decision and in accordance with the Immigration Rules post 9 July 2012 which address Article 8 ECHR. It had, of course, been open to the Respondent to seek a judicial review of the earlier decision of 15 June 2010 (which carried no right of appeal, as noted above) or indeed because of Secretary of State’s delay in responding to the request for reconsideration made in 2011. It appears that the Respondent had no intention of exploring the other obvious option, namely returning to Nigeria and having her husband sponsor her lawful return to the United Kingdom by means of a valid entry clearance application. The Respondent evidently elected to take her chances that the Home Office would have insufficient resources to remove her, or would take a long time to get round to enforcement.

14. As the Respondent’s solicitors were well aware on 12 April 2014, by then the factual situation had changed considerably. The Respondent’s daughter had by then obtained leave to remain in her own right: see §4 of that letter. The thrust of the letter dated 12 April 2014 was to reiterate that the Respondent should have been granted leave to remain on the basis of having spent more than 14 years in the United Kingdom. That, of course, was misconceived as the Respondent had not applied for long residence leave before the change in the Immigration Rules to require 20 years’ continuous residence.

15. The tribunal accordingly concludes that the decision before the First-tier Tribunal of 13 May 2014 was a free standing, fresh decision, and not a continuation or revival of an earlier completed application. The situation was very different from (for example) a revisiting of an original decision which been ruled unlawful. The fact that Judge Wilsher had indicated that he was minded to treat that decision of 2014 as relating back to the 2010 application and that the Home Office Presenting Officer did not object was not capable of creating a concession which was contrary to the true situation, i.e., a fresh, free standing decision based on the fcats as they stood at the date of the new decision. The tribunal finds that the First-tier Tribunal’s decision and reasons must be set aside for material error of law.

16. The result is that the Respondent’s Article 8 ECHR appeal must be reheard. Rightly or wrongly, the Respondent’s counsel was not in a position to proceed following the error of law hearing. There was no up to date evidence, for example, of the relationship between the Respondent and her adult daughter, now 24 years of age, or of the Respondent’s private life in the United Kingdom. The tribunal is bound to say that it is not clear in the light of Judge Wilsher’s findings why the Respondent has not returned to Nigeria to make an entry clearance application under Appendix FM of the Immigration Rules, which might well be the practical solution, but that is a matter for the Respondent and those advising her. On balance, it seemed to the tribunal that it was not possible to redecide the Article 8 ECHR claim fairly without current evidence.

17. There was no application for an anonymity direction and the tribunal sees no need for one.

DECISION

The making of the previous decision involved the making of an error on a point of law. The tribunal allows the onwards appeal to the Upper Tribunal, sets aside the original decision and directs that the original appeal should be heard again before a differently constituted First-tier Tribunal, at Taylor House, not before First-tier Tribunal Judge Wilsher, on a date to be fixed.

Signed Dated 17 March 2017

Deputy Upper Tribunal Judge Manuell