Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27051/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 March 2017
On 16 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

THE Secretary of State FOR THE Home Department
Appellant
and

MR IMRAN HAMEED
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr S Staunton, Senior Home Office Presenting Officer
For the Respondent: Mr C Pulman, Counsel instructed by Sky Solicitors Limited

DECISION AND REASONS
Background
1. The challenge before me was one in relation to jurisdiction and validity of appeal. The appellant in this case is the Secretary of State and the respondent is Mr Hameed. However, for the purposes of this decision I refer to the parties as they were before the First-tier Tribunal where Mr Hameed was the appellant. Mr Imran Hameed is a citizen of Pakistan born on 1 April 1983, who entered the United Kingdom on 20 November 2006. He applied for further leave to remain on a number of occasions and was last granted leave on 12 April 2015. It is not disputed that on 2 April 2015 he made an in-time application. This application was made on form FLR(O) and the covering letter with the application indicated that the application was made on the basis of “legitimate expectation” and that the appellant asked that he be granted extended leave for a “short period until September 2015” to enable the appellant to obtain a new CAS and to continue with his studies and then make a formal application under Tier 4 Rules.
2. The respondent refused that application on 14 July 2015. The Secretary of State in that decision asserted that the appellant did not succeed under the Immigration Rules and the respondent considered the appellant’s application on the basis of family, private life and exceptional circumstances. The respondent went on to certify the appellant’s human rights claim as clearly unfounded under Section 94(1) of the Nationality, Immigration and Asylum Act 2002 as it was asserted the appellant did not meet the requirements for leave to remain on the grounds of family life under Appendix FM or private life under paragraph 276ADE(1) of the Immigration Rules and the appellant had not raised any circumstances considered to be exceptional. The effect of such certification is that there is no in-country right of appeal. Whether the appeal is in fact one that has been certified under s94 and that is properly a matter for the Tribunal to decide, TM (s94 certificate: jurisdiction) Zimbabwe [2006] UKAIT 00005 applied).
3. The appellant nevertheless appealed and in the grounds of appeal addressed as a preliminary issue the right of appeal from paragraphs 9 to 16 contending that he did not make a human rights claim and therefore the respondent was misconceived to certify the human rights claim as unfounded.
4. The Secretary of State was unrepresented before the First-tier Tribunal. The Tribunal considered, at [4], that the appellant relied upon an error of law in his case and the judge noted that “this ground is still available given that his appeal (sic) predates the abolition of the old right of appeal which took place on 6 April 2015”. I am satisfied that the judge was referring to the application rather than the appeal being made before 6 April 2015. Judge of the First-tier Tribunal Wilsher went on in his decision promulgated on 8 August 2016 to allow the appellant’s appeal on the basis that there was an ‘error of law’ (which I take to be a reference to ‘not in accordance with the law’) and remitting the case to the respondent.
5. Grounds for permission to appeal were deemed arguable on the basis that the Secretary of State had certified the appellant’s claim under Section 94 of the Nationality, Immigration and Asylum Act 2002 and that the appellant only had a right of appeal outside of the United Kingdom and that therefore the First-tier Judge had no jurisdiction to hear the appellant’s appeal.
Discussion
6. Mr Staunton relied on the grounds but did not pursue them with any particular force and confirmed that they were confined to the narrow Section 94 certification point. He accepted that if I was not with him on the certification point then the Secretary of State’s appeal fell away.
7. Mr Pulman relied on his skeleton argument and submitted that in order for the Secretary of State’s grounds to succeed it had to be shown that certification was correct as precedent fact. It was not disputed before me that the version of Section 94 of the Nationality, Immigration and Asylum Act 2002 in force at the time (and in force from 3 March 2010 until 19 October 2014) was as follows:
“94. Appeal from within United Kingdom: unfounded human rights or asylum claim
(1) This Section applies to an appeal under Section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).
(1A) A person may not bring an appeal against an immigration decision of a kind specified in Section 82(2)(c), (d), (e) or (h) in reliance on Section 92(2) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) above is or are clearly unfounded.
(2) A person may not bring an appeal to which this Section applies in reliance on Section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.
(3) If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subSection (4) he shall certify the claim under subSection (2) unless satisfied that it is not clearly unfounded.
...”.
8. Mr Pulman argued that therefore the condition precedent that had to be established was that the appellant had made an asylum claim or a human rights claim or both. Mr Pulman submitted that it was not controversial that an application on a FLR(O) form did not necessarily have to be a human rights application and submitted that the grounds relied on by the appellant did not, perhaps unusually, rely on Article 8 grounds but argued that the appellant had spent money and was inconvenienced and had legitimate expectation. Although Mr Pulman accepted that such a legitimate expectation ground could not succeed, that was not the point. The appellant had not made a human rights claim. The appellant was also not asking for a long period or indefinite leave to remain which might be expected in a human rights claim. It is not disputed that the appellant had requested a short period to enable him to make a further application.
9. Mr Staunton did not rebut Mr Pulman’s arguments that the appellant’s application made no mention of human rights, or family or private life and that it had focused (albeit wrongly) upon legitimate expectation, fairness and a failure of the Secretary of State to give notice of the difficulties with his college’s licence.
10. Ashvin Patel v Secretary of State for the Home Department [2011] UKUT 00211 (IAC) considers the principle of fairness and the duty on the Secretary of State to act in accordance with such principles even where such an obligation is not contained in the Immigration Rules.
11. The application by Mr Hameed was one properly based upon Patel issues of fairness and was not a human rights claim. I am also satisfied that the fact that the appellant, subsequent to the respondent’s refusal, added human rights grounds in a generic make weight argument does not alter the grounds of his initial application, R (Mahesh Nirula) [2011] EWHC 3336 (Admin) applied. In the absence of a human rights claim as I am satisfied is the case there is no power of certification and therefore the certification was a nullity.
12. Therefore there is no proper challenge to the validity of the decision of the First-tier Tribunal. Mr Pulman also made a number of arguments in the alternative in relation to the interpretation of Section 94, and the change in rights of appeal under the transitional provisions under Article 9(1)(c)(iv) of the Immigration Act 2014 (Commencement No 3, Transitional and Saving Provisions) Order 2014 (the ‘Transitional Provisions’). I need not consider these here as I am not satisfied that the respondent has demonstrated that this case was properly certified. There were no other grounds before the Upper Tribunal and it was not disputed before me that the judge had properly considered the appeal under the Transitional Provisions.

Notice of Decision
13. The decision of the First-tier Tribunal does not contain an error of law and shall stand.
No anonymity direction was sought or is made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD
No fee award application was sought or is made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson