Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28111/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 20 January 2017
On 23 January 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

Rada Chalgynchieva
[No anonymity direction made]
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the appellant: Mr P Richardson, instructed by Adam Bernard Solicitors
For the respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Rada Chalgynchieva, date of birth 26.5.80, is a citizen of Kyrgyzstan.
2. This is her appeal against the decision of First-tier Tribunal Judge Nicholls promulgated 28.7.16, dismissing on immigration grounds her appeal against the decision of the Secretary of State, dated 30.7.15, to refuse her application made on 11.3.15 for leave to remain in the UK on the basis of the 10-years' long residency provisions of the Immigration Rules.
3. The Judge heard the appeal on 22.7.16.
4. First-tier Tribunal Judge Saffer refused permission to appeal on 21.11.16, on the basis that in the absence of removal directions the First-tier Tribunal had no need to consider whether removal would breach article 8 ECHR, and that even if the judge had gone on to consider article 8 outside the Rules it is not clear what compelling circumstances would have justified engagement of article 8.
5. However, when the application for permission appeal was renewed to the Upper Tribunal, Upper Tribunal Judge O'Connor granted permission on 15.12.16, observing that the only ground of appeal available to the appellant was on human rights.
6. Thus the matter came before me on 20.1.17 as an appeal in the Upper Tribunal.
Error of Law
7. In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the decision of Judge Nicholls should be set aside.
8. Judge Nicholls found that the appellant could not meet the requirements of the Rules and thus dismissed the appeal.
9. Judge O'Connor granted permission to appeal on the basis that it is arguable that the First-tier Tribunal Judge failed to understand that the only ground available to the appellant was one based on the application of article 8 ECHR. "It is arguable that, as a consequence, the First-tier Tribunal failed to lawfully consider such ground - as pleaded in grounds 1 & 2 of the grounds of challenge."
10. In granting permission Judge O'Connor also addressed ground 3, but stated, "It is difficult to see any merit in ground 3, given the terms of section 3C of the 1971 Act at the relevant time and that the making of an EEA application is not an application for leave to remain. Neverthless, he did not refuse permission on that ground.
11. The appellant first entered the UK with leave to remain as a student in 2005. Her leave was subsequently extended through to February 2010. An application made in March 2010 for further leave to remain as a student was refused, but an out of time application made in July 2010 was granted, so that her leave was varied to expire 15.10.12. Mr Richardson relies on the circumstances of the appellant's difficulties in getting a CAS and that she had to take legal action in order to do so.
12. In October 2012 the appellant applied for an EEA residence card as confirmation of a right to reside in the UK as the family member of an EEA national. The application was refused on 16.7.13, although the appellant claims she never received that decision.
13. On 11.3.15 she made the application for settlement in the UK on the basis of 10 years' lawful residence, which was refused 30.7.15 and which is the subject of this appeal.
14. It is clear from the above chronology that the appellant could not meet the requirements of paragraph 276B of the Immigration Rules, as she had not accumulated 10 years' continuous lawful residence in the UK. She was without any leave between 1.3.10 and 22.8.10, and since 16.10.12, the day following the expiry of her last valid leave. That she made an application for an EEA residence card is irrelevant to the computation of lawful residence, as 3C does not apply to an application made under the Immigration (EEA) Regulations 2006, as amended. An application under the regulations is for recognition of an existing status and not for leave to remain. It follows that the application could not possibly succeed under the long residence provisions of the Immigration Rules. In the circumstances, there is no merit in ground 3. In any event, it was not pursued by Mr Richardson.
15. The covering letter for the application, dated 10.3.15, makes clear that the application made was for indefinite leave to remain on the basis of 10 years' long residence and was made on form SET(LR), as required. The body of the letter sets out why it was considered she met the requirements of paragraph 276B of the Immigration Rules. The grounds of application for permission to appeal to the Upper Tribunal point out that that the appeal before the First-tier Tribunal was an appeal against the refusal of a human rights claim and pursuant to section 82, as amended, could only be brought on human rights grounds. Mr Staunton accepts this.
16. The refusal decision of the Secretary of State also sets out why the appellant does not meet the requirements of Appendix FM in respect of family life or 276ADE in respect of private life. The appellant failed to provide any evidence that she was in a subsisting relationship with the person claimed to be her family member in the EEA application, or indeed with anyone else. The application implied that she was a single person, with no spouse or partner, or child in the UK. It is clear from [9] of the decision of the First-tier Tribunal that the appellant accepted that although the marriage had not been terminated, she was no longer in any subsisting relationship.
17. The grounds of appeal to the First-tier Tribunal relied on the long residence provisions, but in the alternative raised article 8 ECHR private life, stating that if she were to be returned to Kyrgyzstan it would be an infringement of her article 8 rights, continuing, "It cannot be considered reasonable for her to leave the UK and establish a new life in Kyrgyzstan. The appellant has established a private life in the UK with a large support network of family and friends." She did not claim any family life in the UK.
18. Judge Nicholls noted at [20] that there was no specific evidence placed before or submissions made to the First-tier Tribunal relating to article 8 ECHR and that, in any event, there was no removal decision, and thus concluded there was no need to consider article 8 ECHR outside the Rules at all. Judge was in error to disregard article 8, simply because there was no removal decision. However, it is clear from the decision and the judge's record of hearing that although it appears in the grounds of appeal to the First-tier Tribunal, article 8 was not addressed by the appellant's representative at the appeal hearing. In the circumstances, I am satisfied that the judge was not obliged to address it. In Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195 it was held that, in the circumstances of the instant case, the Claimant had abandoned the Article 8 claim referred to in the appeal notice, before the First-tier Tribunal when no evidence or argument was placed before the First-tier Tribunal in support of it.
19. In any event, I am not satisfied that consideration of article 8 private life would or could have made any difference to the outcome of the appeal on the facts of this case.
20. Mr Richardson submitted, correctly, that although there was no immigration grounds of appeal against the 276B decision, whether in fact the appellant met those requirements 'informs' any article 8 assessment. However, not only was there a gap beyond 28 days in 2010 but the appellant's last leave expired in 2012.
21. Mr Richard may be right in pointing out by reference to the Home Office Long Residence Guidance that at [18] the judge was in error in stating that the 10 years' long residence requirements cannot be met by a person exercising a right of residence under the EEA regulations. Clearly it can. However, the appellant has not demonstrated that she had any such entitlement of residence. Her application for an EEA residence card was refused. The fact that she may not have received a decision in respect of the same, does not assist the appellant at all. It remains the case that she has not had any valid leave since 2012 and could not possibly reach the 10 years' requirement, even exercising generous degree of discretion. It follows that there is nothing within the long residence considerations that could assist the appellant on article 8 grounds.
22. There was on the facts of this case no basis for the judge to consider article 8 ECHR outside the Rules. The appellant has identified no SS (Congo) compelling circumstances to justify consideration of article 8 private life outside the Rules on the basis that those circumstances are inadequately recognised within the Rules and that it would be unjustifiably harsh to remove the appellant.
23. The appellant entered the UK as a student and, pursuant to section 117B of the 2002 Act, her immigration status was at the highest precarious and at least from 2012 unlawful. Little weight should be accorded to any private life she may have developed in the UK. As a student she must have understood that she had no entitlement to remain in the UK except in accordance with the Immigration Rules and should have expected to return home once her period of study completed. She did not do that and has remained unlawfully. Even if she did have a relationship to justify an EEA residence card, she is no longer in that relationship and still has not left the UK.
24. I am satisfied that even if article 8 private life was considered, and bearing in mind that the appellant does not rely on any family life, it is undoubtedly the case that on any Razgar stepped assessment, balancing on the one hand the appellant's rights to private life and on the other the legitimate and necessary aim of the state to protect the economic welfare of the UK through immigration control, the proportionality balancing exercise would demonstrate that a removal of the appellant from the UK was entirely proportionate and not disproportionate.
25. There was no merit in this appeal; it could not have succeeded. There were some errors of law in the decision of the First-tier Tribunal, but they were not material and would not have affected the outcome of the appeal, which was dismissed.
Conclusions:
26. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal stands and the appeal remains dismissed on all grounds.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Deputy Upper Tribunal Judge Pickup

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order pursuant to rule 13(1) of the Tribunal Procedure Rules 2014.
Given the circumstances, I make no anonymity order.

Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The appeal to the Upper Tribunal and the First-tier Tribunal have both been dismissed.

Signed

Deputy Upper Tribunal Judge Pickup

Dated