Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28860/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 17 June 2014
On 2 September 2014

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
APPELLANT

AND

MS SOOK FUN CHOONG
(no anonymity direction made)
respondent

Representation:

For the Appellant: Mr I Maka (Counsel instructed by Southbridge Solicitors)
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS

1. This matter comes before me for consideration as to whether or not there is a material error of law in the determination by First-tier Tribunal Judge I Howard promulgated on 21 May 2014 in which he allowed the appeal outside of the Immigration Rules and under Article 8.

2. The appellant in this matter is the Secretary of State. For ease of reference I shall refer to the parties as the claimant and the Secretary of State.

Background

3. The claimant whose date of birth is 23 April 1967 is a citizen of Malaysia. She appealed against a decision made by the respondent on 15 November 2012 to remove her pursuant to Section 10 of the Immigration and Asylum Act 1999. The claimant previously made an application for leave to remain outside the Rules which was refused on 15 November 2012. Following a hearing before the Tribunal on 13 February 2013, the appeal was allowed to the extent that the matter was remitted to the Secretary of State for a decision to be made under paragraph 134. The decision made on 21st June 2013 included the Secretary of State's reasons for refusing to vary leave. Notice and grounds of appeal were submitted on 10 July 2013.

4. The Secretary of State's decision dated 21 June 2013 found the claimant to be liable for administrative removal because her leave to enter expired on 4 September 2011 and she continued to remain in the UK without lawful leave. In a supplementary letter the Secretary of State set out her reasons for refusing the application under paragraph 134 having regard to the fact that the claimant remained unlawfully in the UK since 4 September 2011 and therefore had not spent a continuous period of five years lawfully residing in the UK (paragraph 134(i) of the Immigration Rules). In addition the Secretary of State relied on paragraph 134(vi) that the claimant failed to meet the English language certificate requirements. The Secretary of State proceeded to consider the claim on the basis of private or family life under paragraph A277C and Appendix FM. The claimant failed to meet the requirements of those Rules. The claim was considered exceptionally outside the Rules with regard to her employment interests but no sufficiently compelling circumstances to warrant leave to remain in the UK were found.

5. In a determination FTJ Howard allowed the appeal notwithstanding that it had been accepted that the claimant did not meet the Immigration Rules under paragraph 134 and having regard to the fact that the most recent grant of leave as a work permit holder had been for 48 months (the Rule requiring 60 months), and as at the time of the application for leave the work permit holder leave had expired. The appeal was pursued on a discretionary basis for a grant of leave outside of the Rules and under Article 8. The determination [15] cited Ukus (Discretion: when reviewable) [2012] UKUT 00307 (IAC) and Philipson (ILR - not PBS:evidence . India [2012]).

6. The Judge applied principles with reference to the headnotes in Ukus and concluded that Section 86(3)(b) Nationality, Immigration and Asylum Act 2002 was applicable. He accepted that the claimant's employers were responsible for errors in her immigration applications. [18]

7. The Judge proceeded to consider Article 8 ECHR having found at [29] the principles in Gulshan were met. He followed the step by step Razgar approach. He placed considerable weight on Philipson having regard to the public interest and concluded that the interference cannot be justified in light of the appellant's employment and contribution in the UK.

Grounds of Appeal

8. The Secretary of State appealed on the grounds that the Tribunal Judge failed to give reasons or adequate reasons for findings on material matters. The Tribunal Judge erred in his approach to the Article 8 assessment. He did not consider the Rules prior to embarking on the Article 8 assessment. He failed to identify compelling circumstances as identified in Gulshan [2013] UKUAT 00640(IAC). The Judge failed to identify exceptional circumstances, leading to an unjustifiably harsh outcome (Gulshan and Nagre [2013]EWHC 720 Admin). It was arguable that the claimant could establish private life in Malaysia and obtain employment there or return to Malaysia from where she can apply for entry clearance to return.

Permission to Appeal

9. First-tier Tribunal Judge P J G White granted permission to appeal on 9 April 2014 on the grounds that;

"(a) While the judge refers to the guidance in Gulshan (paragraph 28) it is arguable that in coming to his conclusion in regard to Article 8 the judge failed to follow the guidance in regard to 'arguably good grounds' and 'compelling circumstances'.

(b) It is arguable that the judge's conclusion that the exercise of the respondent's discretion fell to be dealt with under Section 86(3)(b) of the NIAA2002 (paragraph 16) was erroneous given that the grounds of appeal under Section 84(1)(f) are confined to a 'discretion conferred by the Immigration Rules'. See Ukus at paragraphs 21 and 22."

Error of Law Hearing

10. I heard submissions from both representatives dealing with the two main issues, namely the exercise of a discretion under the 2002 Act and the Article 8 assessment. I was assisted by a skeleton argument produced by Mr Maka raising the point (for the first time) that the old Rules under Article 8 were applicable as this was a pre 9.7.2012 decision. Mr Deller made submissions firstly dealing with the powers under Section 86 NIAA 2002 (2002 Act) Mr Maka conceded that the Tribunal erroneously applied Section 86(3)(b) 2002 Act. On the first ground I am satisfied that there was an error of law as a result of the judge's misinterpretation of section 86(3)(b) 2002 Act and of the principles in Ukus (cited above). The claimant was unable to meet the requirements of the Rules in paragraph 134 and there was no basis for the Tribunal to intervene, in the absence of a statutory power, to decide that the discretion should have been exercised differently.

11. As to the second ground of appeal Mr Deller accepted that the original application was made prior to 9 July 2012 and that the claimant's skeleton argument correctly relied on Edgehill & another v SSHD [2014]EWCA Civ 402 CA. Nevertheless the transitional provisions allowed the Secretary of State to consider applications under the new Rules. He emphasised that this was an area where arguments were developing. Edgehill was a case where the old and new Rules whilst being similar were not the same. Accordingly the Gulshan test was applicable in the event that the new rules applied. Mr Deller submitted that the judge placed too great weight on Philipson (ILR - not PBS :evidence) India [2012] in concluding that factors in the present appeal were capable of meeting the Gulshan test. There was no consideration of compelling or exceptional circumstances and the Secretary of State's position was that the circumstances were not strong enough to pass the Gulshan threshold to justify consideration of Article 8 outside of the Rules. Mr Deller sought to distinguish the present facts from those in Philipson to the extent that in this instance, whilst it was unfortunate that the appellant received bad advice from her employers on two occasions, it nevertheless remained the position that she did not have lawful leave since 2011 and that this was a factor weighing in favour of the public interest.

12. Mr Deller further submitted that in assessing Article 8 the Tribunal Judge relied disproportionately on Philipson. The claimant was a student and working in the UK and her position could not be encompassed as a legitimate expectation rather as a reasonable belief as to her future position. However, the judge's assessment of proportionality was flawed and given concerns as to the judge's initial error with regard to discretion and whether or not the appeal was capable of passing the Gulshan threshold, Mr Deller submitted that the determination was not safe and should not stand.

13. Mr Maka urged a different approach. In summary his main submission was that the old Rules were applicable and should have been applied. The decision made by the Tribunal Judge under Article 8 ECHR was reasonably open to him. Whilst the judge may have erred in law, such errors were not material as his ultimate Article 8 findings were sound and applicable under the old Rules.

14. Mr Deller raised (with some caution) a new matter; that the proportionality issue was flawed as a result of the judge's failure to consider the public interest argument of the absence of lawful leave.

15. Mr Maka opposed the inclusion of this new argument as the Secretary of State failed to apply for appropriate leave to amend the grounds of appeal and it was unfair to raise a point such as this at the late stage of the hearing. In any event the judge considered public interest appropriately.

Findings and Conclusions

16. I find that there was an error of law in the determination by First-tier Tribunal Judge I Howard insofar as he purported to exercise a discretion under Section 86(3)(b) Nationality, Immigration and Asylum Act 2002, where there was no statutory power to decide that the discretion should have been exercised differently. I do not propose to discuss this further, it being quite clear that the claimant failed to meet the Immigration Rules and there was no discretion to be exercised outside of those Rules.

17. With regard to the Article 8 ground of appeal, I am satisfied that as at the time the decision under appeal was made (21 June 2013) the new Rules introduced on 9 July 2012 were in force. The claimant's original application was made on 23 April 2012 and refused on 15 November 2012 following which it was reconsidered by the Secretary of State in the decision dated 23 June 2013. I have some sympathy for the argument put forward by Mr Maka that the private and family life issues ought to have been considered under the "old Rules", however I would have expected that this point should have been raised in the course of the hearing before the First-tier Tribunal. It was conceded by Mr Maka that it was not. I find no reference in the determination to any such point made on behalf of the claimant nor was it specifically raised in the grounds of appeal dated 8 July 2013, although I accept that ground 3 relies on a breach of Article 8 ECHR. There is equally no consideration by the Tribunal Judge of the provisions under the new Rules save for a reference at [28], "It is common ground that the appellant does not meet the requirements of paragraph 276ADE."

18. I have decided to take a somewhat pragmatic approach to this appeal. It seems to me that there is no strong arguable basis for the claimant to complain about the application of the new Rules in light of the fact that this was not raised at the time of the hearing nor specifically in grounds of appeal. The Tribunal Judge can only be expected to deal with issues that are raised before him and whilst I have support for the view put forward by Mr Maka in his skeleton argument relying on Edgehill and Another v SSHD [2014] EWCA Civ 402 CA, this was not a matter raised before the judge. In any event the new rules were in force at the date of decision and therefore applicable.

19. As the new Rules were applicable so too is consideration the guidance in Gulshan. I find that the Tribunal failed to give adequate reasons to show that the Gulshan test was met. I find that the Tribunal Judge placed considerable weight on the Upper Tribunal decision of Philipson which he found to be comparable. That was a case where all the requirements of the Rules were met except for the level of wages which was subject to a change (an increase) since the time that appellant was granted a work permit. I find no consideration of or reference to compelling or exceptional circumstances. I further find that reliance on Philipson was misconceived as the facts in this appeal are distinguishable. Philipson centred on a argument concerning the relevant time at which evidence could be admitted and Article 8 arguments as to legitimate expectation. I find an error of law in the Tribunal's consideration of Gulshan principles.

20. Having regard to the assessment of Article 8 ECHR, I take the view that there is an overemphasis on the decision of Philipson such that the judge failed to carry out a proper assessment having regard to the specific facts of the case before him which most notably include the fact that the appellant was without leave for a period of time and there was no consideration as to the reasonableness of the appellant returning to Malaysia and the potential interference with her private life there. I cannot accept the argument put by Mr Maka that any error was not material. I find an error of law in the assessment of Article 8 ECHR.

21. In light of the fact that I find a number of errors in the determination, I cannot be satisfied that the Tribunal properly engaged with the relevant issues and relevant law. I find material errors of law in the determination having regard to both grounds of appeal.

Decision

22. There is a material error of law in the Tribunal's decision which shall be set aside.

23. The main findings of fact are unchallenged and are preserved. The decision stands to be remade. I direct both representatives to produce and serve written submissions on the Gulshan guidance and Article 8 ECHR within 10 days of the date of issue of this decision and direction.

Signed Date 27.6.2014

Deputy Upper Tribunal Judge G A Black