Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28725/2012

THE IMMIGRATION ACTS

Heard at Bradford
Determination Promulgated
On 12th September 2013
and 11th December 2013
On 6th January 2014

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Before

DEPUTY UPPER tribunal JUDGE KELLY

Between

Mr tabrizi behrooz moui
(anonymity not directed)
Appellant
and

the secretary of state for the home department
Respondent

Representation:
For the Appellant: Ms S Khan, Counsel instructed by
For the Respondent: Mr Divnycz, Home Office Presenting Officer

DETERMINATION AND REASONS
Introduction
1. The appellant is an Iranian national who was born on the 23rd July 1960. He appeals from the decision of the First-tier Tribunal (Judge Mensah) to dismiss his appeal against the respondent's refusal of his application for indefinite leave to remain, made on the basis of his long residence in the United Kingdom.
Background
2. The background facts of the appeal have never really been in doubt, and may be summarised as follows. The appellant arrived in the United Kingdom on the 20th August 1976 and has continuously resided here ever since. He was initially granted leave to remain as a visitor for a period of two months. This was subsequently extended, for the purpose of study, until the 30th June 1977. On the 22nd November 1983, the respondent ordered the appellant's deportation on the ground that he had remained in the United Kingdom without leave since the 1st July 1977. For reasons that have yet to be fully determined, that order was not enforced. The appellant made the instant application on the 3rd April 2012, and this was refused on the 23rd November 2012 (hereafter, "the decision"). At the same time the respondent served him with notice that a decision had been taken to remove him from the United Kingdom.
3. The respondent considered the appellant's application under paragraph 276B(i)(b) of the Immigration Rules, which requires (amongst other things) that the applicant -
? has had at least 14 years continuous residence in the United Kingdom excluding any period spent in the United Kingdom following service ? of a notice of intention to deport him from the United Kingdom ? [emphasis added]
4. The respondent's official (hereafter, "the decision-maker") was not satisfied that the appellant had resided in the United Kingdom for a continuous period of 14 years and in any event relied upon the period that is excluded from the calculation by the words I have emphasised in the preceding paragraph. In considering whether the appellant's removal breached the appellant's right to respect for private and family life under Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, the decision-maker applied paragraph 276ADE and Appendix FM of the Immigration Rules. This was notwithstanding the fact that those provisions were applicable only to applications that were made on or after the 9th July 2012.
Proceedings before the First-tier Tribunal
5. The appellant's case appears to have been argued in the First-tier on the basis that he qualified for long residence under paragraph 276B(i)(a): i.e. 10 years lawful residence in the United Kingdom. This was notwithstanding the fact that, whilst it was the appellant's case that he had resided for upwards of 30 years in the United Kingdom, less than a year of this had been with leave to remain. There also appears to have been some confusion in the First-tier as to whether the respondent had ordered the appellant's deportation due to his conviction for a criminal offence or (as was in fact the case) by reason of his overstaying his leave to remain. Finally, it seems to have been accepted that the Tribunal had power to revoke the order for deportation order of the 22nd November 1983. Having noted these misconceptions, it is now appropriate to turn to the key passages in the judge's determination:
11. I do not accept the appellant can meet the requirements of the Immigration rules (sic) for long residence because I accept he did not have 10 years lawful residence and I accept a deportation order was validly issued against him because the Home office (sic) have produced it. I do not accept the appellant did receive this if he remained at the last address he gave to the Home office (sic). The appellant chose to withdraw his appeal and go into hiding and accepts this. In those circumstances I find the appellant's applications under long residence under the rules fail.
12. I do however accept the appellant entered the UK in 1976 and has been living with his brother and sister in law every since. I heard evidence from the family and have considered letters. I accept the appellant gave a false name in order to access the NHS and I accept he has remained hidden from the authorities. The family admit they have hidden him from the authorities and did not inform the authorities he was still living with them. The appellant lied at the hearing when he told me he had never worked and I prefer the evidence of his brother who told me he had worked on and off in Pizza shops.
13. The appellant and his brother were fairly vague on the details of the conviction and the appellant's legal representatives did not file any documentation regarding the criteria for making a deportation order in 1983. In fact they failed to file any evidence to suggest the decision was not completely lawful. I therefore find there is no evidence before me to support the submission the deportation order should not have been made in 1983.
14. It has been argued it should be revoked because the appellant did not serve a prison sentence. Whilst this is a condition for a mandatory decision to issue a notice of intention to deport today, I have insufficient evidence before me about the conviction to be able to safely consider whether it should be revoked. I therefore refuse to revoke the deportation order. I have been given no reasons why the conviction, sentencing judges (sic) remarks etc. have not been placed before me by the appellant's representatives as it is the appellant who seeks to assert it should be revoked.
15. Despite the above on the evidence before me I accept the appellant has spent the last 30 years living "on and off" with his brother and supporting himself on and off whilst working in Takeaways. I do not accept that his relationship with his brother and his brother's family is anything more than the normal ties of adult family members or that he is anything more than an Uncle (sic) to his nephew. I accept he may be closer to them because he has lived with them on their own evidence "on and off" but this does not in my view make the relationship anything more than one would expect from normal family ties.
6. In light of the above findings, the judge went on to consider whether the appellant's removal would constitute a breach of his right to respect for private and family life. She concluded that the appellant's predicament was "completely of his own making", and considered that in all the circumstances removal was necessary and proportionate in securing the economic well being of the country by means of immigration controls.
My decision concerning the First-tier Tribunal's error of law
7. As Ms Khan pointed out, the judge clearly did not understand the context in which the Secretary of State made deportation orders prior to the introduction of "administrative removal", by Section 10 of the Immigration and Asylum Act 1999. However, this is not in my view material to the grounds upon which the Ms Khan now bases the appeal to the Upper Tribunal. Those grounds are essentially twofold; namely, that the judge -
(i) did not make a clear finding as to whether and when the appellant had been served with notice of the deportation order that had been made on the 22nd November 1983; and
(ii) ought in any event to have found that the removal decision of the 23rd November 2012 had retrospectively revoked the deportation order of the 22nd November 1983, so as to render it void ab initio.
Both grounds are of course central to the operation of the exclusion period for the purpose of calculating the period of long residence under paragraph 276B of the Immigration Rules. I will consider the second ground first.
8. Ms Khan submitted that even if (which she did not accept) the appellant had been served with notice of the deportation order of the 22nd November 1983, it did not have the effect of 'stopping the clock' when calculating the period of residence under the Rules. This submission was based entirely upon a passing remark made by Sullivan J (as he then was) at paragraph 91 of R v SSHD ex parte Popatia [2000] EWHC 556, in which he observed that, "re-service [upon an absconder] necessarily implies revocation of an earlier order". However, that remark was made within the context of the Secretary of State making a conscious decision to reconsider the merits of the appellant's removal in light of the changed circumstances that had arisen since the making of the original deportation. This much is in my view clear from paragraph 94 of the judgement. In this case, however, there is no evidence that the decision-maker was even aware of the existence of the earlier order, still less that he addressed his mind to the question of whether its enforcement, almost exactly 20 years later, continued to be appropriate.
9. However, even if the removal decision of the 23rd November 2012 did imply revocation of the earlier order, there is in my view no basis for suggesting that its revocation acted retrospectively. Ms Khan expressed some surprise when I put this proposition to her at the hearing, and she invited me to direct disclosure of the relevant Immigration Directorate Instructions as an aid to interpretation. However, not only do I regard the proposition as self-evident, but support for it can be found for it within the terms of the Immigration Rules themselves. Thus, paragraph 390 (which deals with applications to revoke a deportation order) requires the decision-maker to consider, amongst other things, whether there has been a material change of circumstances since the making of the original deportation order. Those words are wholly inconsistent with the notion that revocation has a retrospective effect. On the contrary, they clearly show that revocation is intended to reflect developments that have occurred since the circumstances that gave rise to the making of the order. Moreover, I am satisfied that the purpose of the long-residence provisions is to allow for the settlement of those who, unaware of the Secretary of State's intention to remove them, may have gained a measure of psychological security from the fact of their long residence. That purpose would be entirely negated were I to accept Ms Khan's submission concerning effect of revocation. I am therefore satisfied that the only circumstance in which a duly served notice of deportation might not 'stop the clock' would be in the event of it being quashed upon judicial review.
10. Ms Khan was however on much firmer ground in relation to her complaint that the judge failed to make a clear finding as to whether notice of the deportation order had been served upon the appellant. Such a finding was necessary because service of notice of an intention to deport is explicitly required by paragraph 276B in order to 'stop the clock'. Paragraph 11 of the judge's determination, particularly its second sentence, is extremely difficult to follow. Her reference to the deportation order having been "validly issued against him" appears to gloss over the question of service. There is no reference to the question of which party bears the burden of proving service (Mr Divnycz accepted that it is the respondent). In all the circumstances, I am not satisfied that the judge addressed her mind to an issue that was potentially determinative of the appeal.
11. Having indicated to the representatives at the hearing on the 12th September 2013 that I intended to remake the decision in relation to the service of notice of the Secretary of State's intention in 1983 to deport the appellant, Mr Diwnycz informed me that he wished to serve additional evidence upon the appellant in relation to that issue. I considered that it was obviously unfair to expect the appellant to meet this evidence at such short notice, and I therefore adjourned the hearing of this aspect of the appeal to the first available date after six weeks that would be convenient to Ms Khan. The matter was thus re-listed before me on the 11th December 2013 in order for me to determine whether there had been effective service of the deportation on the appellant so as to "stop the clock" and thus prevent the appellant acquiring a right of residence by reason of 14 years' continuous residence in the United Kingdom.
The evidence
12. In addition to the documentary evidence that had been before the First-tier Tribunal, I received a further bundle of documents from the respondent containing documents variously dated between the 12th August 1981 and the 4th October 1987, and a further bundle of documents from the appellant containing his witness statement dated the ? and further statements from Mr Mohamed Moui Tabrizi (the appellant's brother) and Mrs Beverley Moui Tabrizi (his brother's wife).
13. I heard oral testimony, in each case given in English, from the appellant, Mr Mohamed Moui Tabrizi, and Mrs Beverley Moui Tabrizi. I thereafter heard helpful submissions from each of the representatives before reserving my decision, which appears below.
Legal self-directions
14. The burden of proving that there was effective service of the deportation order rests upon the respondent and the standard of proof is a balance of probabilities.
15. The representatives agreed that the requirements for service of a deportation order were, at the material time, to be found in the Immigration Appeals (Notices) Regulations 1972. These required that written notice of the decision should be given "as soon as practicable" (Regulation 3) and that service may be by post in a registered letter or by the recorded delivery service to his last known or usual place of abode (Regulation 6).
16. I am bound to be selective in my references to the evidence in explaining the reasons for my findings. However, I wish to emphasise that I considered all the evidence in the round in arriving at my conclusions.
Findings
17. There is no direct evidence - such as formal proof of posting - that notice of the decision to deport the appellant was served upon him. There is however a significant body of circumstantial evidence to show that notice of the decision was delivered by post to the appellant's last-known address, at 15 to 21 Victoria Centre, Nottingham, NG1 3PN, on a date that was sometime prior to the 14th July 1984. It is necessary at this stage to summarise that evidence before I turn to consider the evidence that is put forward by the appellant and his witnesses by way explanation for it.
18. I find that the following primary facts are established by the documents that are set forth, in chronological order, in the respondent's most recent bundle of documents.
19. On the 22nd July 1980, the appellant was convicted at Bolton Magistrates Court of an offence of attempting dishonestly to obtain a G.C.E. ('O' level) certificate by sitting an examination in the name of another. He was sentenced to a fine and ordered to pay costs. Attempts to enforce that sentence at the appellant's then address in Bolton proved fruitless.
20. On the 22nd July 1981, the appellant withdrew his appeal against an earlier decision to refuse him leave to remain in the United Kingdom as a student. He did however ask for a review of the original decision. This was refused on the 17th September 1982. The appellant's Member of Parliament then intervened on his behalf. Consequently, on the 13th December 1882, the appellant was visited by an immigration officer at the flat in which he was then living with his brother and sister-in-law, namely, 15 to 21 Victoria Centre, Nottingham (above). In the course of the interview that followed, the appellant said that he had no fear of returning to Iran because his father continued to reside and operate a haulage business there without difficulty. The appellant was also questioned about the studies he was supposedly undertaking at that time. Having made appropriate enquiries, however, the immigration officer concluded that there was nothing to indicate that the appellant was genuinely studying in the United Kingdom and thus no reason why he should not return to Iran. He therefore recommended that the earlier refusal to grant the appellant further leave to remain should be maintained. On the 10th March 1983, the then Home Secretary (David Waddington) informed the appellant's MP of this decision by letter. That letter concluded by saying that the appellant "must now make arrangements to leave the United Kingdom forthwith, failing which he will be deported". A similar but much shorter letter was sent to the appellant on the 17th March 1983 at his last known address, 15 to 21 Victoria Centre, Nottingham.
21. The Secretary of State signed an order for the appellant's deportation on the 22nd November 1983. On the same day, he also signed a letter addressed to the appellant giving notice that the decision had been made to deport him. It is the question of whether this second document was served upon the appellant that lies at the heart of this appeal.
22. Directions for the appellant's removal were issued to the Chief Constable of Nottingham on the 6th December 1983. These were later superseded by further directions, issued on the 28th February 1984. It is reasonable to suppose that the police made some effort to execute those directions.
23. On the 14th July 1983, the appellant's brother (Mohamed Moui) wrote to the Home Office. His letter was received by the Home Office on the 19th July 1984. The address of the sender is given as '15-21 Victoria Centre, Nottingham, NG1 3PN'. The opening sentence reads: "I am writing on behalf of my brother, Behrooz Moui Tabrizi, concerning his deportation order". Mohamed Moui appealed for the appellant to be allowed to remain in the United Kingdom until circumstance in Iran had improved, and he stressed that the appellant did not wish to remain in the United Kingdom indefinitely. It stated that the appellant was aware that the Home Office was looking for him, but stated that his fear was "so great that he does not know what to do for the best".
24. The Home Office eventually replied to Mohamed Moui's letter on the 20th November 1984. After apologising for the delay in replying (it would seem that some things never change) a Home Office official informed Mohamed Moui that the Home Secretary had concluded that there were insufficient compassionate circumstances to justify granting the appellant exceptional leave to remain. It concluded by stating that the appellant should make immediate arrangements to leave the United Kingdom failing which, "arrangements will continue to enforce his departure".
25. Enquiries continued with a view to enforcing the deportation order against the appellant, all to no avail. On the 23rd September 1987, an immigration officer and a police officer attended at what was then the last known address of Mohamed Moui; namely, 149 Tenbury Crescent, Aspley Estate, Nottingham. Upon speaking to a neighbour, they discovered that the family were no longer residing at that address. However they were given a Sheffield telephone number: 305882. On calling that number, the officers spoke to a person who identified herself as the appellant's sister-in-law. She claimed that she and her husband had not had any contact with the appellant for at least two years, and that neither of them was aware of his current whereabouts. She was thus unable to assist with their enquiries.
26. The oral testimony of the appellant, his brother, and his sister-in-law, may be summarised as follows.
27. The appellant says that he moved out of his brother's flat at 15 to 21 Victoria Centre, Nottingham, during the summer of 1983. This was because his sister-in-law was pregnant and there would be no room for him once the baby was born. The appellant therefore moved to a flat above a shop in Sutton-in-Ashfield near Mansfield, Nottinghamshire. He did not inform the Home Office of this change of address. Although he could be contacted by telephone (there was a telephone in the shop below his flat) he did not have any contact at all with his brother until about 1984 or 1985, when his brother and sister-in-law came to visit him, together with their eldest daughter who was by then aged about 12 months. The appellant was unaware that his brother had written to the Home Office on his behalf in July 1984 prior to his letter being disclosed during the course of these proceedings. Contrary to what is stated in that letter, the appellant was unaware at that time that the Home Office were looking at him.
28. Mohamed Moui Tibrizi is the appellant's brother. He does not recall writing the letter of the 14th July 1984. However, he acknowledges that he must have done so because it is written in his hand. He had never received written notice of his brother's deportation, whether by post or otherwise. He must have used the term 'deportation' in his letter as a result of hearing it being used in connection with others who had been removed from the United Kingdom. However, he did at one time see a letter from the Home Office in which it was stated that the appellant should leave the United Kingdom. Although he no longer has any recollection of writing it, he speculates that his letter to the Home Office was prompted by that letter. It was certainly not the case that the appellant had asked him to write it. He cannot now recall whether he told his brother of the letter at the time. It is however unlikely, as he did not have any contact at all with him for a period of between 1 and 2 years after the appellant moved to Sutton. There was one occasion thereafter when he visited the appellant in his flat above a shop in Sutton. He recalls that his wife received a telephone call from the Home Office concerning the appellant's whereabouts. This occurred after he moved, in 1986, to Sheffield. He thereafter invited the appellant to join him in Sheffield in order to help in his takeaway.
29. Beverley Tibrizi is the wife of Mohamed Moui Tibrizi. She has no recollection of speaking by telephone to an Immigration Officer in September 1987. She does however acknowledge that the telephone number (Sheffield 305802) on which the Immigration Officer says that he spoke to a person identifying herself as the appellant's sister-in-law, is in fact her landline telephone number. She knew that the appellant had to return to Iran but not that he was the subject of a deportation order. Her husband had told her that if Home Office officials discovered the appellant's whereabouts they would send him back to Iran. She was aware that prior to him joining her family in Sheffield, the appellant had been living in Sutton-in-Ashfield. It follows from this that any suggestion by her that she was unaware of his whereabouts would not have been true. However, neither she nor her family ever visited the appellant at his flat in Sutton.
30. I do not believe a word of the evidence that I heard from the appellant and his two witnesses. The only possible reason for Mohamed Moui Tibrizi writing the letter that he did in July 1984 was because both he and his brother had received notice of the fact that an order had been made for the appellant's deportation. The letter states that it is written on behalf of the appellant and makes explicit reference to the Home Office's intention to deport him. Moreover, Mohamed Moui was at that time still residing at the address to which the Home Office would have sent notice of the decision to deport the appellant. This provides overwhelming circumstantial evidence of service of notice of deportation. Furthermore, I have no doubt it was the fact of such service that precipitated the appellant's decision to leave his brother's flat in Nottingham in order to avoid enforcement, rather than (as he claims) the impending addition to his brother's family. I am prepared to accept that Mohamed and Beverley Tibrizi only visited the appellant on one occasion whilst he was hiding at an address in Sutton-in-Ashfield. No doubt they were wary of leading the authorities to the appellant's door. I have no doubt, however, that the appellant and his brother maintained regular telephone contact with each other. In the absence of any suggestion that there had been a rift between them, there was not reason for them not to have done so. Moreover, upon reading Mohamed Tibrizi's letter as a whole, it is clear that it was written at the appellant's request. I am further satisfied that an Immigration Officer spoke to Beverley Tibrizi by telephone in September 2007, and that she on that occasion untruthfully stated that neither she nor her husband had had any form of contact with the appellant for over two years. I find that her claim at the hearing that she never visited the appellant in Sutton-in-Ashfield (which was contrary to what was said by both the appellant and her husband) was the result of her desire to give an account that was, so far as possible, consistent with that which she had given to the Immigration Officer in that telephone interview. I therefore find as a fact that the appellant was served with written notice of the deportation order on a day between the 22nd November 1983 and the 14th July 1984.
Analysis
31. The effect of service of notice of the deportation order on the appellant by, at the latest, the 14th July 1984, had the effect of 'stopping the clock' for the purpose of the appellant qualifying for leave to remain by reason of his long residence in the United Kingdom. By that time, he had resided in the United Kingdom for a period of rather less than eight years. This was slightly over one half the period of residence required by paragraph 276B and slightly over one third of the period that is required by paragraph 276ADE. It follows that the respondent's decision was in accordance with Immigration Rules.
32. I have heard little by way of evidence concerning the appellant's relationship with his minor nephews/nieces, and there is no evidence that his relationship with his adult brother extends beyond the ordinary emotional ties of an adult sibling. I have heard no evidence as to whether the appellant has surviving family members who are resident in Iran. Nevertheless, in view of his long residence in the United Kingdom, I am satisfied that the consequences of the appellant's removal to Iran are of sufficient gravity to surmount the modest hurdle necessary for engagement of Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. The lawful basis for the appellant's removal is Section 3(5) of the Immigration Act 1971, and I am satisfied that it is necessary in a democratic society in order to maintain the economic well being of the country through the consistent application of immigration controls. Moreover, having regard to the fact that the appellant's long residence in the United Kingdom has been very largely achieved through what I find were his determined efforts to evade those immigration controls, I am satisfied removal would be proportionate to that end.
Decision
33. The First-tier Tribunal made a material error of law and its decision is set aside. The appeal against the decision to refuse the appellant's application for indefinite leave to remain and to remove the appellant to Iran is nevertheless dismissed, and the Secretary of State's decision accordingly stands.

Anonymity was not directed in the First-tier Tribunal and is not therefore directed in the Upper Tribunal.

Signed Date: 4th January 2014

Deputy Judge of the Upper Tribunal