Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/25548/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 7 June 2013
On 24 June 2013

Before

UPPER TRIBUNAL JUDGE PINKERTON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

Mr Rolando Clifford Pyanee
(anonymity direction not made)

Respondent

Representation:

For the Appellant: Ms M Tanner
For the Respondent: Mr A Miah

DETERMINATION AND REASONS

1. The parties are hereafter referred to as they were before the First-tier Tribunal so that Mr Pyanee is the appellant and the Secretary of State for the Home Department is the respondent.
2. Part of the immigration history of the appellant is that on 5 August 2010 he was granted leave to remain in the United Kingdom until 16 April 2012 as a student dependant. Prior to the expiration of his leave the appellant made a further application for leave to remain as a Tier 2 (General) Migrant. That application was refused and a decision was also made to remove him from the United Kingdom by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006. Although the application was made on 21 November 2011 it was almost a year before the decision to refuse the application was made on 1 November 2012.
3. The appellant appealed that decision under the Rules and also included the claim that his removal would disproportionately interfere with his and his family’s Article 8 right to private life.
4. The appeal came before First-tier Tribunal Judge Ian Howard. In a determination promulgated on 10 April 2013 the appeal was dismissed under the Immigration Rules but allowed under Article 8. The judge found furthermore that the removal decision under Section 47 was not in accordance with the law. There is no challenge to that part of the decision.
5. The respondent sought permission to appeal the decision and this was granted. The judge granting permission noted that the First-tier Tribunal Judge had dismissed the appeal under the Immigration Rules and therefore it was not relevant that the respondent took issue with part of his reasoning for so doing. However, the judge granting permission had this to say in relation to the other ground seeking permission to appeal:-
“...
3. The grounds also contend that the judge’s Article 8 decision was flawed. This was because the judge failed to give consideration to the new Immigration Rules before allowing the appeal. It is also argued that the appellant had no legitimate expectation to remain in the United Kingdom and the best interests of his children would always be served by them being with their parents.
4. The determination makes no reference to the new Immigration Rules introduced on 9 July 2012 in HC 194 nor does it apply the guidance of the Upper Tribunal set out in MF (Article 8 – new Rules) Nigeria [2012] UKUT 00393 (IAC) relating to the consideration of the new Rules. Therefore it is arguable that the determination does not show that the judge considered whether the application could succeed or fail under the new Rules. Even if the application would have failed and the judge was right to assess whether the decision was contrary to the appellant’s Article 8 rights generally, the decision does not show that the judge considered the greater specificity which the new Rules give to the importance the Secretary of State attaches to the public interest. It is not possible to say that, if the judge had given the matter such consideration, his decision would have been the same.”
6. I heard submissions from both parties, made full notes in relation to them and have taken them into account in this determination. I add that the appellant’s solicitors lodged a reply to the grounds seeking permission to appeal. However, the matters raised in the reply merely seek to uphold the decision of the First-tier Tribunal Judge without referring to any fresh issues that need to be considered by me.
7. For the first time in this appeal Mr Miah raised the point before me that because the application was made prior to 9 July 2012 when the new Immigration Rules (setting out a number of mandatory requirements) came into force those Rules did not apply. There was therefore no requirement for the Ftt Judge to refer to them. This was not an aspect that Ms Tanner was able to address, particularly given no notice whatever, but having briefly considered the situation I decided that I did not need to come to a conclusion on that point for the reasons set out below.
8. Although the appellant in this appeal has not specifically raised Article 8 in the Tier 2 application form – indeed there appears to be no invitation for him to do so – there is reference in the form to his current status being that of a Tier 4 dependant, and also a reference to his wife and children. Article 8 was thereafter raised in the Notice of Appeal.
9. The judge nowhere referred to the new Rules and nor, seemingly, was it argued before him that they either did or did not apply to this application. If they applied then it was an error for the judge not to consider them and how their applicability impacted upon this appellant. As is set out in the head note to MF as a result of the introduction of the new Rules (assuming for the moment that they apply to this application) consideration by judges of Article 8 outside the Rules must be informed by the greater specificity which they give to the importance that Secretary of State attaches to the public interest. An example is then given of the new Rules setting out thresholds of criminality by reference to terms of imprisonment so that Article 8 private life claims can only succeed if the applicant not only has certain periods of residence but can also show that their criminality has fallen below the thresholds.
10. It is difficult to compare such a scenario with the one in this appeal. If the judge erred did he do so in such a way that his decision should be set aside and a fresh one substituted for it? It appears that the appellant cannot benefit under the new Rules, but the Secretary of State has not considered Article 8 ECHR at all and whether her discretion should be exercised in relation to it. I have come to the conclusion that in the circumstances of this appeal and even assuming that the new Rules apply to this application those Rules are not conclusive of the Article 8 assessment. As the judge did in this appeal a fact sensitive enquiry was conducted by him following which the judge concluded, as he was entitled to do, that the proposed interference in the life of the applicant was disproportionate to the legitimate public end sought to be achieved. This is for the reasons given in paragraphs 29-37 of the determination.
11. It is my finding therefore that whether or not the judge erred in failing to take into account the new Rules, and I am by no means certain that he did so, this is an appeal where the judge was entitled to conclude that the appellant should succeed under Article 8 ECHR nevertheless. Even on the assumption that the judge should have considered the greater specificity which the new Rules give to the importance the Secretary of State attaches to the public interest that interest would not have required a different decision to be substituted for the original one.
12. The decision of the Ftt Judge is upheld.
13. No anonymity direction is made. None was sought and in the particular circumstances I see no need for one.

Signed Date

Upper Tribunal Judge Pinkerton