Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27467/2012

THE IMMIGRATION ACTS

Heard at Birmingham
Determination Promulgated
On 25 April 2013
On 14 June 2013

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Sudager Singh
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DETERMINATION AND REASONS

1. The appellant, Sudager Singh, was born on 10 November 1974 and is a male citizen of India. The appellant entered the United Kingdom on 30 December 2001 when he claimed asylum. His application was refused after he failed to attend for interview. Subsequently, the appellant appealed to the Adjudicator who dismissed his appeal on 3 October 2002. Thereafter, the appellant absconded. On 13 May 2009, the appellant made an application for leave to remain “on human rights grounds”. The application was refused by a decision dated 13 June 2012. He appealed to the First-tier Tribunal (Judge Reed) which, in a determination promulgated on 22 October 2012, “allowed the appeal to the limited extent that the decision was not otherwise in accordance with the law”. A further decision was then taken on 9 November 2012 to refuse the appellant’s application for leave to enter the United Kingdom on the grounds that his removal would not place the United Kingdom in breach of its obligations under the Human Rights Act 1998. The appellant appealed that decision to the First-tier Tribunal (Judge T R P Hollingworth) which, in a determination promulgated on 6 March 2013, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. Granting permission, Judge Kamara, wrote:
“Taking into consideration the respondent’s failure to comply with the directions to file and serve evidence in relation to the legacy policy, along with the fact that the appellant’s previous appeal was allowed to the limited extent that the respondent ‘reconsider the appellant’s circumstances in accordance with the published policies for legacy cases’ and that this was not done, I find that it is arguable, on the evidence before him, that the judge erred in concluding the appellant ‘could never be a candidate under the scheme’ because of his understanding that the legacy provisions applied only to those cases which had not been finally concluded.”
3. Judge T R P Hollingworth considered the “so-called legacy provisions” at [28] et seq.:
“The purpose of the so-called legacy provisions was to resolve unresolved asylum cases where the claim for asylum was made before 5 March 2007. And, where for a variety of reasons, the claim had not been finally concluded (see paragraph 4 of Mohammed [2012] EWHC 3091 (Admin)). Included within the class were cases where the asylum claim had been refused, but where the appellant had not yet left the UK or whether (sic) further representations had been made. The Directorate responsible for such cases was set up in the summer of 2006.
The reality was there was no decision outstanding in relation to the appellant. Any decision about his refugee status was resolved after a full Tribunal hearing in 2002. Furthermore, it was resolved against him. In circumstances where he was not found to be a refugee. In my judgment the letter from Jasvir Jutla of 13/5/09 is disingenuous. Because it does not refer to any asylum decision at all. The application’s position therefore in May 2009 according to them, amounted to a completely fresh claim based on Article 8.”
4. The respondent’s refusal letter of 9 November 2012 states:
“Furthermore, it was stated in the determination [of Judge Reed] that proper consideration had not been given to your client’s case under the “legacy” programme as it had never been referred to the former Case Resolution Directorate (CRD) nor its successor, the Case Assurance and Audit Unit (CAAU). This is not, however, unique to your client’s case. There are several casework units throughout the UK Border Agency and there is no policy or rules that are unique to the CRD or CAAU; they apply equally to all those casework units and therefore the same policy and rules will be followed. CRD was established as an additional casework unit to those units already in existence in order to help deal with the backlog that had arisen. As such, your client’s case would not be transferred to CAAU and will continue to be considered at its current location that has, prior to and throughout the existence of CRD and CAAU, considered post-appeal representations from failed asylum seekers or other persons with no lawful basis of stay in the UK.”

5. Judge Reed, at [7] of his determination wrote:
“Although the caseworker who dealt with this matter and wrote the refusal letter has referred to the legacy policy and paragraph 353B of the Immigration Rules, it is clear that the appellant’s case had never been referred to either CRD or the CAAU. It should have been. There was nothing to indicate that any proper attempt was made by the decision maker to deal with the case under the respondent’s legacy policy.”
6. The Senior Home Office Presenting Officer submitted that Judge Reed had been under a misapprehension, namely that the appellant’s case had to be referred to a specialist unit (the CRD or its successor, CAAU) as a legacy case. As the refusal letter made clear, the same policies applied to all the casework teams operating within the UK Borders Agency not only to the CRD or CAAU. She submitted that being referred for consideration as a legacy case did not in any way entitle the appellant to any form of amnesty or an immediate grant of leave to enter/remain. The Senior Home Office Presenting Officer provided me with a copy of a Home Office document which she told me is an introduction to the work of the CRD:
“The Case Resolution Directorate (CRD) was set up to deal with case records outstanding before the new asylum model (NAM) took over assessing asylum claims. These cases are called “the legacy”. CRD aims to conclude these cases by July 2011. Each case will be considered on its merits and in line with existing policy and law. If the case is unmeritorious the Agency will remove the individuals from the United Kingdom.
The legacy is defined as all asylum cases that are incomplete or not being processed by regional asylum team. All new cases lodged after March 2007 are processed by these teams as are some that were lodged between March 2006 and March 2007. Further representations which amount to a fresh claim from an individual, who already has an unresolved asylum claim before March 2007, will be considered by CRD. This instruction applies only to cases which fall within this definition …”
7. The Senior Home Office Presenting Officer referred me to the Administrative Court decision in Mohammed [2012] EWHC 3091 (Admin). Echoing the “introduction” document which I have quoted from above, Mr Stephen Morris QC, sitting as a Deputy High Court Judge, noted at [4]:
The Claimant's case is what is commonly referred to as a "legacy case". A "legacy case" is an unresolved asylum case, where the claim for asylum was made before 5 March 2007, and where, for a variety of reasons, the claim had not been finally concluded. Included within the class are cases where the asylum claim had been refused, but where the applicant had not yet left the UK or where further representations had been made. The CRD was set up in the summer of 2006 specifically for the purpose of dealing with such legacy cases. The Claimant's case fell to be dealt with by the CRD. The CRD closed on 1 April 2011 and outstanding cases were transferred to a new unit within the UK Border Agency ("UKBA"), the Case Assurance and Audit Unit ("CAAU").
8. The court in Mohammed found the decision of the Secretary of State to have been Wednesbury unreasonable. It directed the Secretary of State to make a fresh decision on the representations made by the claimant in a letter. The judge noted that the former paragraph 395C of the Immigration Rules had been deleted from those Rules and replaced by a new paragraph (353B). The judge said this at [107]:
The question arises as to whether, when giving further consideration to the Claimant's case following the quashing of the decision in the 7 February 2011 letter, the Defendant should consider the matter under the present rule, or under the rule existing at the time of the decision which I have found to be Wednesbury unreasonable. At the outset it struck me as potentially unfair for the Claimant to be prejudiced by the more stringent rule in paragraph 353B where, had the Defendant acted properly in February 2011, it is possible, at least, that she would have benefited from the more generous provisions of paragraph 395C. Subsequent to the hearing, I invited and have received further written submissions from the parties on this issue.
9. At [120] et seq., the judge concluded:
Applying the above principles, I reach the following conclusions.
Following the quashing of the decision of 7 February 2011, it is now for the Defendant to reach a fresh decision exercising her own discretion. It is not for this court to grant any remedy directly nor even to direct the Defendant to grant leave to remain in the present case.
However, the Defendant should make that decision in the light of this judgment. The following factors apply to consideration of that decision. First, in principle, the current rules, including paragraph 353B, apply and are not displaced. Secondly, nevertheless, the Defendant has a discretion not to remove the Claimant under s.10 IAA 1999 and to grant some form of leave to remain. Thirdly, in exercising that discretion the Defendant should seek to correct any injustice that may have arisen as a result of a combination of the unlawful decision in February 2011 and subsequent "repeal" of paragraph 395C. Thus, in my judgment, the Defendant should consider now whether, applying paragraph 395C and the Ch. 53 EIG guidance as it was in February 2011 (and in particular giving proper weight to the length of residence), she would have granted the Claimant leave to remain under paragraph 395C and if so, should then take into account now the need to correct any resulting injustice. In this way, the Defendant will be able both to apply current rules and to correct any injustice that may have arisen from the decision which I have decided to quash
10. The Senior Home Office Presenting Officer submitted that, given that the appellant was not entitled, as a “legacy” applicant, to any kind of amnesty, the most that he could expect was to have his further representations considered under the (more generous, but now “repealed”) Rule 395C. That is exactly what the author of the refusal letter of 9 November 2012 has done at [4] et seq. Judge T R P Hollingworth had not subjected the respondent’s application of paragraph 395C to his own analysis although he should have done so. However, it was submitted that this was not a material error in the light of the judge’s analysis of the Article 8 ECHR issues.
11. Mr Mahmood, for the appellant, both in his skeleton argument and in his oral submissions did not accept that Judge Reed’s direction (that a new immigration decision should be made by the CRD or CAAU under the “legacy provisions”) had ever been put into effect. As a consequence, Judge T R P Hollingworth’s determination was vitiated and there would need to be a new hearing.
12. I am satisfied that [3] of the refusal letter of 9 November 2012 sets out accurately the position regarding legacy cases and the involvement in those cases of the CRD and its successor, the CAAU. What is said in the letter appears to be backed up by the “introduction” document produced by the respondent. I consider that Judge Reed was not helped by the Presenting Officer who herself appears to have been uncertain as to the nature and extent of the legacy policy. This led Judge Reed to remit the matter to the respondent on a basis which was not in accordance with the respondent’s own policies. I also agree with Senior Home Office Presenting Officer who sought to explain the contents of the refusal letter in the context of the decision in Mohammed. In Mohammed, the court found that the only prejudice suffered by the claimant who had been entitled to be considered as a “legacy” case was that he was that he should have his own circumstances considered under the (more generous) provisions of the now deleted paragraph 395C. Mr Mahmood, although he was unable to explain how the legacy policy might have materially assisted his client, could do no more than submit that Judge Hollingworth’s determination should be set aside and the matter reconsidered. In the light of what the Senior Home Office Presenting Officer had told the Tribunal about the legacy system, I do not consider anything at all would be achieved by such a course of action.
13. It would have been helpful if the author of the letter of 9 November 2012 had made it clear at [4] why the provisions of paragraph 395C were considered rather than those of the new paragraph 353B. However, I find it likely that the respondent was seeking to apply the principles in Mohammed.
14. The refusal letter considers at length part (ii) of paragraph 395C concerning length of residence in the United Kingdom. It notes that the appellant had been resident for almost eleven years but that he had delayed in making representations and that he had absconded and failed to report to the UK Border Agency in accordance with the terms of his temporary admission. It records that the appellant had “remained here clandestinely for the majority of [his] time in the UK” and that he had been “untruthful in respect of [his] personal details”. It was “considered that your client’s length of residence is not sufficiently compelling to justify allowing him to remain in the UK”.
15. Judge T R P Hollingworth, although he did not address paragraph 395C directly, touched on those matters in his determination. I find that the judge erred in law in not addressing paragraph 395C but, because I find that the judge was aware of all the relevant facts and addressed many of these in his analysis of the Article 8 ECHR appeal, I exercise my discretion not to set aside his determination. I do so because I do not consider it likely that Judge T R P Hollingworth (or any other judge of the First-tier Tribunal rehearing the case) would find that a proper application of paragraph 395C to the facts should have led the Secretary of State to grant any form of leave to this appellant. The observations of the respondent contained in the refusal letter are, in my opinion, entirely valid.
16. A challenge is also made to the judge’s analysis of Article 8 ECHR. I agree that there are problems in the judge’s analysis which is at times muddled. The appellant has a relationship with his partner, Ms Renard. That fact was accepted by the judge [61]. However, the judge noted that the relationship was “not of long duration”. There are no children of the relationship nor is there any suggestion that the parties would marry. At [64], the judge wrote:
“It therefore follows that this is not a Chikwamba or Beoku-Betts case. In that as at the date of the appeal, the appellant cannot show a relationship akin to marriage. So that there is no guarantee that if he is required to return to India and makes an out-of-country application to return based on his relationship with Ms Renard that it is bound to succeed. It will be a case of the Respondent Department (sic) to consider any application on its merits.”
17. That paragraph is problematic. It is not clear what the judge means by “a relationship akin to marriage” or why individuals who are parties to a relationship (which the judge found to be the case) but who are not married should be deprived of the protection provided by Article 8. In those circumstances, it is also not clear why the principles of Beoku-Betts should not apply.
18. However, the judge somewhat redeemed his analysis in the subsequent paragraphs of his determination. He makes the valid point at [67] that Ms Renard “has commenced any relationship in the knowledge that the appellant may have to be removed if his application to remain fails”. While he does not cite the case, he is here referring to principles which were enunciated in KONSTATINOV v. THE NETHERLANDS - 16351/03 [2007] ECHR 336 (26 April 2007):
The Court further reiterates that, moreover, Article 8 does not entail a general obligation for a State to respect immigrants' choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State's obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion. Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would be precarious from the outset. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (see Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 39, ECHR 2006 ..., with further references).[48]
19. The judge noted that the relationship had been formed whilst the appellant had no status in the United Kingdom as an immigrant and after he had absconded from the terms of his temporary admission. He also wrote at [68]:
“It is arguable if the appeal fails, the partner could accompany the appellant to India if she wishes. Whilst it is true to say that she has extended family in the United Kingdom and has, of course, lived all her life here, that is precisely what the appellant herself did. While such a position would not be easy, nevertheless, the partner appears to make any continuing family life conditional upon it being confined to the United Kingdom.”

The Senior Home Office Presenting Officer submitted that the judge’s finding that it would be reasonable for Ms Renard to accompany the appellant to India effectively disposed of the Article 8 appeal. Mr Mahmood, on the other hand, submitted that the principles of Sanade and others (British children - Zambrano - Dereci) [2012] UKUT 00048(IAC) were violated by the judge’s approach. Ms Renard, as a British?EU citizen could not reasonably required to leave the United Kingdom and reside outside the European Union.

20. Ms Renard is not the appellant’s spouse but I am aware that what the Tribunal says in Sanade may equally apply to non-spouses. However, the judge has made the very valid points that (i) the relationship is of reasonably short duration, (ii) the parties have entered the relationship in the full knowledge of the appellant’s immigration history and his lack of status and (iii) that the appellant and Ms Renard should not have expected or continue to expect that her relationship with the appellant may only be pursued within the United Kingdom. The Senior Home Office Presenting Officer submitted that the dismissal of the Article 8 appeal was an outcome available to the judge and that his findings on the particular facts in this appeal were not perverse. I agree with that submission. I acknowledge that a different Tribunal may have come to a different result but it was open to the judge to dismiss the Article 8 appeal for the reasons which he has given. Although his application of the jurisprudence and his statement of the principles governing the operation of Article 8 is, at times, inelegantly expressed, I am satisfied that his findings are valid and I can find no reason to interfere with the outcome. For these reasons, the appeal is dismissed.

DECISION
21. This appeal is dismissed.

Signed Date 2 June 2013

Upper Tribunal Judge Clive Lane