IA/26898/2012

• Status of case: Unreported
• Promulgation date: 3 Jun 2013
• Last updated on: 26 Nov 2013

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26898/2012


THE IMMIGRATION ACTS


Heard at : Field House
Determination Promulgated
On : 22nd May 2013
On: 3 June 2013

…………………………………


Before

Upper Tribunal Judge McKee


Between

rhonna cervantes serrano

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Mr Rashid Ahmed, instructed by Dias Solicitors
For the Respondent: Mr Philip Mangion of the Specialist Appeals Team


DETERMINATION AND REASONS


1. Miss Serrano has an exemplary work record as an employee of Cumbria County Council, most recently as a Family Placement Officer in their Adoption and Support Services Team. She came to this country in October 2006 to take up work permit employment, and in October 2011 she applied for indefinite leave to remain, which is normally granted after five years in work permit employment. Her application was refused, however, on 8th February 2012, because by then a requirement had been inserted into all Parts of the Immigration Rules that an applicant for indefinite leave should have no unspent convictions. Unfortunately, Miss Serrano did have an unspent conviction. In July 2010 she had been convicted by Keswick Magistrates of certain motoring offences.

2. These offences can certainly be regarded as ‘technical’. Before coming to this country Miss Serrano had been working in Massachusetts, and had acquired three driving licences – a Filipino one, an American one and an international one. She assumed that she would be able to drive in the United Kingdom without taking a further test, and she applied for motor insurance on the basis that she was entitled without more to drive on British roads. (An international licence would only let her do this for one year.) She duly obtained the insurance, and it was only when she was caught speeding that it came to light that she was not licensed to drive in the United Kingdom, and that she had been wrong to tell Swinton Car Insurance that she was so licensed. Miss Serrano pleaded guilty to these offences, for which she incurred a fine. Her crime was scarcely heinous, but the Immigration Rules at that time made no distinction between one offence and another. Any unspent conviction was treated as blocking an application for settlement.

3. Two appeals to the First-tier Tribunal ensued. The first was allowed by Judge Balloch, to the limited extent that the matter was ‘remitted’ to the Secretary of State for a proper exercise of the discretion under paragraph 395C of the Immigration Rules. Another decision was taken on 14th November 2012, but the application was again refused under paragraph 134(vii) of the Immigration Rules, and a concurrent decision was taken to remove the appellant under section 47 of the Immigration Nationality and Asylum Act 2006. The latter decision was ruled unlawful by Judge Mark-Bell on the second appeal, and there is no dispute about that. What caused the matter to come before the Upper Tribunal was his decision to ‘remit’ Miss Serrano’s case again to the Secretary of State for a proper exercise of her discretion to grant leave, this time outside rather than within the Immigration Rules.

4. On behalf of the Secretary of State, Peter Deller of the Specialist Appeals Team drafted grounds on which leave to appeal was granted by Designated Judge Wilson. (Miss Serrano is thus the respondent before the Upper Tribunal, but for convenience I have kept the original designations as they were before the First-tier Tribunal.) Mr Deller’s grounds were drafted with his customary acuity, and were rebutted in a Rule 24 Reply settled by Mr Ahmed, but at the hearing it was agreed on all hands that there was a way round the problem. While Judge Mark-Bell was wrong to ‘remit’ the matter to the Secretary of State for her to exercise her discretion outside the Rules (a discretion which is not reviewable by the Tribunal), there was a discretion inside the Rules which should have been exercised in Miss Serrano’s favour. Paragraph 134 is couched in discretionary terms ~ “indefinite leave to remain may be granted” ~ and so it would be open to the Tribunal under section 86(3)(b) of the 2002 Act to find that the decision on the application should have been exercised differently.

5. I am grateful to both representatives for their co-operation in achieving what is so obviously a fair outcome to this appeal. Judge Mark-Bell did make an error of law which requires the Upper Tribunal to re-make his decision on the appeal against the refusal of indefinite leave. Given the lack of any mens rea on the part of Miss Serrano in an offence of strict liability, and given also that the requirement to have no unspent convictions was deleted from the Immigration Rules shortly after the decision in the instant case, the appeal falls to be allowed outright.




DECISION

The Secretary of State’s appeal is allowed to the limited extent that the First-tier Tribunal erred in purporting to ‘remit’ the decision on Miss Serrano’s application for leave to remain in the United Kingdom. A fresh decision is substituted, allowing her appeal against that decision, with a direction that indefinite leave to remain be granted.


Richard McKee
Judge of the Upper Tribunal
22nd May 2013