Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24858/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 December 2016
On 9 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

THE Secretary of State FOR THE HOME DEPARTMENT

Appellant
and

MR MASUN PRASAD FERNANDO NAINABADUGE
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr S Walker, Home Office Presenting Officer
For the Respondent: Ms A Vatish, Counsel instructed by Law Lane Solicitors

DECISION AND REASONS

1. The respondent is a citizen of Sri Lanka born on 12 November 1984 who entered the UK as a student in April 2004.
2. On 10 March 2015 he applied for indefinite leave to remain in the UK on the ground of continuous lawful residence for at least ten years under Paragraph 276B of the Immigration Rules.
3. On 24 June 2015 his application was refused.
4. The respondent appealed and his appeal was heard by First-tier Tribunal Judge Thomas. In a decision promulgated on 18 July 2016 the judge found that the respondent did not satisfy the requirements of Paragraph 276B of the Immigration Rules as he did not have lawful leave in the UK between 30 June 2006 and 5 September 2006. However the judge allowed the appeal under Article 8 ECHR outside the Rules on the basis that the respondent's removal would be a disproportionate interference with his right to family and private life in the UK.
5. The grounds of appeal submit that the First-tier Tribunal did not have jurisdiction to allow the appeal under Article 8 because the respondent is entitled to live in the UK as a family member of an EEA national and there was no basis for showing that refusal of indefinite leave to remain would lead to a breach of Article 8.
6. Before me, Mr Walker relied on and reiterated the argument in the grounds of appeal. Ms Vatish, in response, argued that this was not an EEA application. It was an application for indefinite leave to remain under the Rules and therefore the judge was entitled to assess the case under Article 8.
7. In response to a question from me both parties agreed that the respondent now satisfies the requirements of Paragraph 276B. Both parties accepted the judge's finding at paragraph 16 that the respondent has been in the UK lawfully since 5 September 2006 which means that as of 5 September 2016 the ten year residence requirement has been satisfied.
Consideration
8. Section 82 of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014 provides for a right of appeal against the refusal of a human rights claim. Section 84 states that an appeal of a refusal of a human rights claim "must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998".
9. On 24 June 2015 the Secretary of State refused the respondent's application for leave to remain. In her letter ("the Refusal Letter"), the Secretary of State set out reasons why the appellant failed to satisfy requirements for leave to remain on the basis of family or private life under Appendix FM and Paragraph 276ADE.
10. The Refusal Letter stated that the respondent was entitled to appeal against the refusal of his human rights claim on the ground that the decision was unlawful under section 6 of the Human Rights Act. It was correct for it to do so. The legal framework introduced by the Immigration Act 2014 provides for statutory appeals against refusals of human rights applications. Having made such an application, and it having been refused, the respondent had a right of appeal.
11. The fact that the respondent is entitled to live in the UK in any event as a family member of an EEA national is relevant to the merits of the appeal but it does not affect whether the Tribunal had jurisdiction to hear the appeal, which arises from the refusal of a human rights claim.
12. Although not relevant to this decision, I note that both parties were in agreement that the respondent now satisfies the ten year residence requirement under the Immigration Rules.

Decision
A. The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
B. The appeal is dismissed.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 6 January 2017