Tribunal decisions

The decision

IAC-HW-AM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26768/2014

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 16th November 2016
On 8th December 2016

Before

DEPUTY upper tribunal JUDGE RENTON

Between

GURMUKH SINGH
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Mohzan of City Law Immigration Ltd
For the Respondent: Mrs H Aboni, Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The Appellant is a male citizen of India born on 25th July 1974. The Appellant first entered the UK illegally on 8th February 1999. He then applied for asylum but absconded. His asylum application was refused in November 2001, but the Appellant was not heard of again until he was discovered working illegally in April 2011. The Appellant applied for leave to remain on the basis of long residence on 6th July 2012. That application was refused for the reasons given in the Respondent's letter of 5th June 2014. The Appellant appealed, and his appeal was heard by First-tier Tribunal Judge Frankish (the Judge) sitting at Stoke on Trent on 11th June 2015. The Judge decided to dismiss the appeal for the reasons given in his Decision of that date. The Appellant sought leave to appeal that decision, and on 21st September 2015 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The Judge dismissed the appeal against the refusal of leave to remain on long residence grounds as he found that the Appellant had not been resident in the UK for the sufficient period of time as a consequence of the service upon him of removal directions in January 2006. That decision was not challenged in this appeal. As regards Article 8 ECHR, the Judge found that the Appellant did not qualify for relief under the Immigration Rules, and outside of those Rules, the Judge decided that the decision of the Respondent was proportionate. The Judge applied the format given in the decision of R (Razgar) v SSHD [2004] UKHL 27, and took account of the factors referred to in Section 117B Nationality, Immigration and Asylum Act 2002.
4. At the hearing, Mr Mohzan referred to his Skeleton Argument and submitted that the Judge had erred in law in coming to these conclusions. The Judge had misapplied the provisions of Section 117B of the 2002 Act when he wrote that he could attach no significance to the Appellant's private life in the UK. Further, the Judge had not carried out the balancing exercise necessary for any proper assessment of proportionality as required by Razgar, and he had failed to consider the provisions of paragraph 276ADE of HC 395.
5. In response, Mrs Aboni referred to her Rule 24 response and argued that there had been no such errors of law. The Judge had considered the Appellant's private life rights fully. He had not referred to paragraph 276ADE of HC 395, but that was not a material error because the Appellant would fall foul of paragraph 276ADE(1)(i) as a consequence of his history of absconding. There had been no misapplication of Section 117B(4) of the 2002 Act. The Judge had been correct to attach little weight to the Appellant's private life which had been established when the Appellant was present in the UK unlawfully. The Judge had been right therefore to consider it insignificant.
6. I find no error of law in the decision of the Judge which I therefore do not set aside. Although the Judge did not specifically consider the provisions of paragraph 276ADE of HC 395, he did, at paragraphs 27 and 28 of the Decision deal with all aspects of the Appellant's private life. He did so correctly in the context of the provisions of Section 117B of the 2002 Act. In the light of Section 117B(iv) he was right to attach little weight to it, or as he put it to give it little significance. That being the case, the Judge carried out a sufficient consideration of all the circumstances for an assessment of proportionality. The only error of law of the Judge was to consider Article 8 ECHR outside the Immigration Rules as he made no finding that there were compelling circumstances not already considered allowing him to do so, but in the context of this appeal that does not amount to a material error of law.
7. For these reasons I find no error of law in the decision of the Judge.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside that decision.
The appeal to the Upper Tribunal is dismissed.
Anonymity
The First-tier Tribunal did not make an order for anonymity. I was not asked to do so, and indeed I find no reason to do so. I do not make an order for anonymity.

Signed Date

Deputy Upper Tribunal Judge Renton