Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26901/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 18 May 2016
On 01 August 2016

Before

UPPER TRIBUNAL JUDGE DEANS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR SYED ADEEL HASSAN
Respondent

Representation:
For the Appellant: Mr T Wilding, Senior Home Office Presenting Officer
For the Respondent: Mr S Bukhari, Bukhari Chambers Solicitors

DECISION AND REASONS
1) This is an appeal by the Secretary of State against a decision by Judge of the First-tier Tribunal Scott allowing an appeal under the Immigration Rules by Mr Syed Adeel Hassan (hereinafter referred to as "the claimant").
2) The claimant was born on 11 September 1981 and is a national of Pakistan. He arrived in the UK in August 2004 as a student. After various extensions as a student he was granted leave to remain as a Tier 1 (Post-Study) Migrant until January 2014. He made an application in time for indefinite leave to remain in the UK on the basis of long residence. This application was refused by the Secretary of State on 22 April 2014.
3) In the view of the Secretary of State the claimant did not qualify for indefinite leave on the basis of long residence in terms of paragraph 276B of the Immigration Rules. In terms of paragraph 276B(i)(a) the claimant had to show that he had at least 10 years' continuous lawful residence in the UK. In terms of paragraph 276B(v) the claimant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less would be disregarded, as would any period of overstaying between periods of entry clearance, leave to enter or leave to remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28 day period. In terms of paragraph 276A, "lawful residence" means residence which is continuous residence pursuant, so far as this application is concerned, to existing leave to enter or remain.
4) In considering the application the Secretary of State noted that both at the date of the application and the date of the decision the claimant had been in the UK for less than 10 years. In addition, in terms of lawful residence, one of his grants of leave had expired on 30 September 2007. An application for leave made on 25 September 2007 had been rejected as invalid on 5 October 2007 due to missing supporting documents. The claimant received this notice of rejection on 9 October 2007. He made a valid application for leave on 14 November 2007, 40 days after the rejection of his invalid application and 36 days after he was deemed to have received notice of that rejection on 9 October 2007. The valid application was granted on 13 July 2008.
5) In part because of this gap in 2007 the Secretary of State found that the claimant did not have continuous lawful residence for 10 years or more. Account was taken of Home Office published guidance to the effect that short gaps of lawful residence of no more than 28 days will be ignored and that discretion may be exercised in relation to a single application more than 28 days out of time where there are exceptional circumstances. Examples of exceptional circumstances given in the guidance are a postal strike, hospitalisation, or administrative error by the Home Office. As the claimant had not referred to any exceptional circumstances, it was decided that the exercise of the discretion did not arise in this case.
6) The Secretary of State went on to consider the application under Appendix FM and under paragraph 276ADE but the claimant did not meet any of the requirements of these provisions.
7) Finally, the Secretary of State considered the claimant's position as an "informal carer" for his aunt, Mrs Saleha Khan, who is a British citizen and suffered an accident in 2006. It was noted that the aunt has NHS carers who visit her 3 times a day. She lives alone and is able to mobilise with a stick. There are other nieces and nephews present and settled in the UK who could assist her. The claimant visits her on an occasional basis only. There were no sufficiently compelling or compassionate circumstances to justify granting leave outside the Rules.
8) At the hearing before the First-tier Tribunal it was not disputed by the claimant that his application of 14 November 2007 was made 36 days out of time, which was 8 days beyond the 28 day period which falls to be ignored under the Immigration Rules. The question was one of whether discretion in the Home Office guidance ought to have been exercised in favour of the claimant.
9) The Judge of the First-tier Tribunal accepted that at the time the claimant overstayed he had ceased living at his uncle's house, where notification of the rejection of his application of 25 September 2007 was sent. After he left that address he became aware that an attempt had been made to deliver a registered letter to him there, but he did not know its contents and it was 10-12 days later that he went to collect the Royal Mail delivery card from his uncle's house and go to the appropriate office to collect the letter. He delayed because he was attending college at the time. By the time he received notice of the rejection of his original application he had lost more than 8 days, the period by which he later exceeded the 28 day period. There were obstacles in the way of the claimant obtaining the necessary documents to support a fresh application, including the illness of his parents in Pakistan. The Judge of the First-tier Tribunal accepted that the claimant progressed matters as quickly as possible. The judge concluded that discretion ought to have been exercised in favour of the applicant and the appeal should therefore be allowed.
10) The application for permission to appeal was made by the Secretary of State on the basis that there were no exceptional circumstances to warrant the appeal being allowed. The failure by the claimant to produce the relevant documents with his first application and the fact that he had changed his address did not constitute exceptional circumstances. The claimant was under an obligation to notify any change of address to the Home Office and his failure to do so should not count in his favour, especially given his experience by making six earlier claims.
11) Permission to appeal was granted on the basis that it was arguable that the decision of the First-tier Tribunal did not set out what evidence the judge had taken into account or make any finding as to whether there was anything exceptional which would have justified the Secretary of State exercising her discretion differently.
12) A further issue was raised at the start of the hearing before me. The Judge of the First-tier Tribunal had found in favour of the claimant in terms of a discretion which was not conferred by the Immigration Rules but was conferred by Home Office guidance outside the Rules. In terms of section 84(1)(f) of the Nationality, Immigration and Asylum Act 2002, the judge had power only to allow the appeal where the person taking the decision should have exercised differently a discretion conferred by the Immigration Rules. Where the discretion was outside the Rules, it was open only to the judge to make findings of fact and then ask the Secretary of State to exercise her discretion outwith the Rules.
Submissions
13) Mr Wilding referred to the Home Office guidance of 8 May 2015 on long residence. The claimant could only succeed if the discretionary power in the guidance was ignored but the decision maker did consider the guidance. Mr Wilding relied on the case of Abdi [1996] Imm AR 148. The finding of the Secretary of State was that there was nothing exceptional about this case.
14) Mr Wilding continued that the judge had compounded the error by allowing the appeal under the Immigration Rules. The claimant had not been here for 10 years residence. The best decision the judge could have made from the point of view of the claimant was that the Secretary of State's decision was not in accordance with the law. Mr Wilding said he was not sure if a case was being pursued under Article 8.
15) The point was made that the claimant has now been in the UK for 11 years. Mr Wilding pointed out that this appeal pre-dated the coming into force of the Immigration Act 2014. Even if the claimant could show more than 10 years' residence there was still the question of the gap in 2007.
16) For the claimant, Mr Bukhari submitted that the decision of the Judge of the First-tier Tribunal although short was complete. The judge accepted that at the date of decision there was less than 10 years residence. The judge considered the gap of 36 days and looked at the circumstances. In finding in favour of the claimant the judge was not making a discretionary decision but deciding whether discretion was correctly exercised. In his first application the claimant made a simple error by failing to submit a bank statement, which he had in his possession. Although the Secretary of State referred to the claimant as having made six applications, he had only made one before 2007. It was for the judge to decide whether there were exceptional circumstances in relation to the gap while the claimant made a further application. These circumstances were not within the claimant's control. The examples given in the guidance were only examples. The guidance was not part of the Immigration Rules.
17) Mr Bukhari continued that the judge had not usurped the decision of the Home Office. The judge had said the decision ought to be different. The judge was not exercising discretion but simply passing judgment on the wrong exercise of discretion.
18) Mr Bukhari said an Article 8 case was advanced but because of the decision under 276ADE the Article 8 case was not expounded upon before the First-tier Tribunal. The judge limited the decision to the Immigration Rules. If, however, the claimant did not meet the Rules then compassionate grounds ought to be considered. The claimant had been on track for 10 years residence for settlement. There were no criminal convictions or other problems. His disabled aunt relied heavily upon him. The claimant was her main carer. If the decision was set aside, Mr Bukhari said he would seek a further hearing under Article 8.
19) Mr Wilding responded that it was clear the Judge of the First-tier Tribunal had exceeded his powers. The discretion in question was outside the Rules. The lawfulness of the decision would only be in question if the policy had not been considered. It was pointed out that half a page of the refusal letter was taken up with the exercise of this discretion. Mr Wilding said the judge could not reach this decision on his own and certainly could not allow the appeal under the Immigration Rules.
20) Finally, Mr Bukhari submitted that even if there was no case under Article 8, there should be consideration of the appeal under paragraph 276ADE(vi) on the basis that the claimant had lost all ties with his country of origin.
Discussion
21) The decision of the Judge of the First-tier Tribunal is clearly based on an error of law. The judge had no jurisdiction to allow the appeal on the basis of a discretion exercisable outside the Rules. As Mr Wilding contended, the judge could only have found that the Secretary of State's decision was not in accordance with the law because, for example, the Secretary of State had failed to have regard to a relevant factor, or had failed to exercise a discretion, or had made a misapprehension of a material fact. None of these errors apply in this case, nor any other error affecting the legality of the Secretary of State's exercise of discretion. Accordingly, the basis of the decision of the Judge of the First-tier Tribunal is wrong in law. The judge had no power to allow the appeal on the basis stated and the decision must be set aside.
22) Mr Bukhari submitted that if the decision of the First-tier Tribunal were to be set aside, there should be a further hearing in relation to paragraph 276ADE(vi) and Article 8. Mr Bukhari was not, however, able to point to any relevant factor under either of these provisions which had not been taken into account by the Secretary of State or would be likely to lead to a different decision from the decision made by the Secretary of State.
23) Taking 276ADE(vi), at the time of the Secretary of State's decision of 22 April 2014 this applied to a person aged 18 years or above who has lived continuously in the UK for less than 20 years but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK. The Secretary of State in the refusal letter pointed out that the claimant is aged 32 and had spent the vast majority of his life, approximately 23 years, resident in his country of origin, namely Pakistan. It was reasonable to expect that the claimant would be able to re-adjust to life in Pakistan and to obtain employment within a reasonable period. The claimant had returned to Pakistan to visit family who still lived there. It was not accepted that he had severed all ties.
24) As far as Article 8 was concerned, the Secretary of State was aware of the claimant's relationship with his aunt, who is aged 71 and claiming Disability Living Allowance. She was visited by carers 3 times a day and the claimant's visits to her were described as occasional. Although it might be the claimant's and his aunt's desire for the claimant to be considered as a care assistant, this would not be a sufficiently compelling and compassionate factor to justify a grant of leave to remain in the UK.
25) At the hearing before me it was said by Mr Bukhari that the visits by carers 3 times per day was an error and that in fact the carers visited 3 times per week.
26) I note that the reference to carers visiting 3 times a day is made in a letter dated 13 September 2013 from the Department of Clinical Gerontology of King's College Hospital. This states that the claimant's aunt has back pain and lives alone. It is said that her nephew visits her occasionally and will try to help her out but she was finding life quite a struggle at the moment.
27) Another letter from the same Department, dated 3 September 2012, states that the claimant's aunt lives alone and is independently mobile with a stick. She has a private carer once a week and goes to the mosque regularly.
28) The evidence before the Tribunal showed that the claimant did not live with his aunt and showed, in addition, that his visits to her were occasional, even if much appreciated. Her other nephews and nieces were said by the claimant to be busy with their immediate family and to live some distance away. Nevertheless, it is difficult to see that the claimant's case under respect for private or family life contained any compelling circumstances as described in SS (Congo) [2015] EWCA Civ 387. On the basis of the evidence the First-tier Tribunal would not have been able to find that the claimant's removal was disproportionate and for this reason the appeal under Article 8 would be bound to fail. No application was made for the submission of further evidence at the hearing before me.
29) Because on the available evidence the appeal would not succeed either under paragraph 276ADE(vi) or under Article 8, there is no purpose to be served by having a further hearing, either before the Upper Tribunal or the First-tier Tribunal on these issues. The First-tier Tribunal could not have reached a decision in favour of the claimant if the tribunal had been properly directed as to the law.
Conclusions
30) The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
31) I set aside the decision.
32) I re-make the decision by dismissing the appeal.
Anonymity
33) The First-tier Tribunal did not make an order for anonymity. I have not been asked to make such an order and I see no reason of substance for making one.
Fee Award Note: this is not part of the determination
As the appeal has been dismissed no fee award can be made.

Signed Date

Upper Tribunal Judge Deans