Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29991/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 March 2017
On 18 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

bilal ahmed
(anonymity direction NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Lee of Counsel instructed by ATM Law Solicitors
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge O’Brien promulgated on 16 September 2016.

2. The Appellant is a citizen of Pakistan born on 6 November 1976. It is his case that he first arrived in the United Kingdom on 11 August 1997 and has not left this country since that date. He acknowledged in a ‘method of entry’ interview that he entered on a passport to which he was not entitled, and as such he has in substance acknowledged that he is an illegal entrant. He remained in the UK unlawfully and it was not until July 2012, just before a significant change in the Immigration Rules, that he made an application to regularise his immigration status.

3. On 5 July 2012 the Appellant attempted to make an application supported by a cheque. That cheque was returned, and the Appellant says that he first learnt about this from the friend upon whose account the cheque had been drawn, and thereafter on 21 July 2012 - before he had received any communication about this issue from the Secretary of State - he sent some postal orders to the Home Office to cover the cost of the fee of his application. On 5 September 2012 the Respondent wrote to the Appellant informing him that his application had been considered to be invalid. Later, the postal orders were also returned to the Appellant.

4. The Appellant took no action in respect of these circumstances. There is nothing I can see in any of the evidence that was before the First-tier Tribunal offering any sort of explanation as to why no action was taken, but nonetheless that seems to be incontrovertible. The Appellant essentially acquiesced in the circumstances of July 2012.

5. For completeness I should note that it was on 9 July 2012 that the regime of the Immigration Rules changed, that is to say four days after the purported application was initially submitted and some few days before the postal orders were sent.

6. As I say, it is incontrovertible that at the time the Appellant essentially acquiesced in the circumstances of 2012. It appears that it was not until 2014 that any issue was raised with the Secretary of State in respect of the Appellant’s application. There is on file a letter from the Secretary of State dated 18 November 2014 responding to a letter from the Appellant’s current representatives dated 14 May 2014 addressing the question of the validity or otherwise of the Appellant’s purported application of 5 July 2012. The letter of 14 May 2014 raising these issues has not been filed in these proceedings. Be that as it may it is apparent that almost two years elapsed before the Appellant did anything about what has become, on his case, a core issue in the way he now advances his claim.

7. Following the above events, on 5 January 2015 the Appellant made an application for indefinite leave to remain. On 13 August 2015 the Respondent refused the application for reasons set out in a ‘reasons for refusal’ letter (‘RFRL’) of that date.

8. The Appellant’s application of 5 January 2015 was supported by a covering letter which may be found at Annex B of the Respondent’s bundle before the First-tier Tribunal. That letter in part refers to the correspondence from the Secretary of State dated 18 November 2014, and concludes in these terms in respect of what had gone on hitherto, “It is submitted as applicant has submitted his application prior to the change of Rules his application should therefore be considered under the prevailing Rules at the time of submission of application”. That would appear in terms to be an attempt to invite the Secretary of State to treat the application made on 5 July 2012 as a valid application and therefore to apply the pre-9 July 2012 Immigration Rules to the Appellant’s case. The Secretary of State did not do so. The Appellant has not pursued that line of argument any further; indeed it may be seen that by the time the matter was before the First-tier Tribunal the emphasis of the Appellant’s argument had shifted. He was no longer arguing that the previous Rules should be applied directly to his case but rather arguing that they should sound loudly by analogy in any consideration of his case under Article 8.

9. In this context the key submission of the Appellant before the First-tier Tribunal may be seen at paragraphs 35-36 of the Decision of the First-tier Tribunal Judge in which he sets out the submissions being made by the Appellant’s Counsel:

“35. ...It was submitted that the Respondent should have given the Appellant the opportunity in July 2012 to rectify the situation but did not. It was submitted that but for the Respondent’s negligence in dealing with the application the Appellant would have been granted indefinite leave to remain on the basis of 14 years’ continuous residence in the United Kingdom.

36. The fact that the Appellant’s presence in the United Kingdom for that period of time had been illegal was beside the point; the 14-year rule existed to regularise the immigration status of people who had established lengthy but unlawful presence in the United Kingdom. The 14-year rule recognised the fact that people remaining in the United Kingdom for lengthy periods of time required Article 8 rights. Because the Appellant had satisfied the rules prior to 9 July 2012 and had made an in-time application it was submitted that this appeal should be allowed under Article 8 outside the rules.”

10. This, then, was the core of the case that was put to the First-tier Tribunal; and indeed it is very much the core or backbone of the arguments that are now advanced before the Upper Tribunal in respect of error of law.

11. In my judgment the Appellant’s submissions before the First-tier Tribunal amounted to an attempt to make the so-called ‘14 year rule’ apply to his case by analogy, or at least to accord potential success under a Rule that no longer applied very significant, if not determinative, weight in his case. It seems to me that this argument is bad in principle.

12. The real question for the Secretary of State, and in turn the First-tier Tribunal, was in the first instance whether the Appellant could satisfy the then extant Rules, that is to say the Rules post- 9 July 2012 applicable at the date of his application on 5 January 2015. In that regard, bearing in mind that he had not advanced any arguments in respect of family life, it would require the satisfying of paragraph 276ADE(1). The benchmark of proportionality under paragraph 276ADE(1) is a 20 year period of residence unless a number of specified particular circumstances apply. For material purposes in the context of this appeal, and bearing in mind the Judge’s findings in respect of ties with Pakistan which are not the subject of direct challenge before me, the Appellant could not have availed himself of the so-called ‘7-year route’ under 276ADE.

13. So, the first question for both the Secretary of State, and in turn the First-tier Tribunal, was a consideration of the case under the Rules with reference to the yardstick of 20 years. If the Appellant could not succeed under the Rules - and it is no part of his case that he could - it was then a matter of considering whether there were factors about his case that would make his removal disproportionate. This involves a consideration of whether there were any circumstances about his private life that would defeat the prospect of departure, notwithstanding the failure to complete 20 years.

14. In my judgment it could not be said that those matters in the other side of the scale - that is to say those matters such as the public interest element in maintaining effective immigration control - that were to be balanced against the Appellant’s private life, were in any way be diminished by reason of the contentious issue that in 2012 the Appellant might have been able to make a successful application. Nor does the contended ‘missed opportunity’ bolster the objective quality of the Appellant’s actual private life as at the date of the hearing.

15. The reality is the Appellant did not successfully make a valid application and acquiesced in the Secretary of State’s rejection for a period of at least two years before raising it, and considerably longer before actually making a further application. The Appellant’s argument is essentially to invite an evaluation of his case premised on an understanding of proportionality that had shifted by reason of the significant change – with Parliamentary approval – presaged by the replacement of the so-called 14 year rule with paragraph 276ADE(1) which took as its ‘baseline’ a longer period of presence in the UK. In my judgment the First-tier Tribunal Judge explicitly understood this and rejected the premise of the Appellant’s submissions at paragraph 55 of his decision where he said:

“The fact remains that this is not an appeal against the Respondent’s disposal of the 2012 application. The Appellant’s remedy lay elsewhere and should have been sought considerably earlier. This appeal is against a decision taken on 13 August 2015, by which time the 14-year route was no longer available to applicants for indefinite leave to remain.”

16. In my judgment there is no error of principle or law in the approach adopted by the First-tier Tribunal in that regard.

17. Mr Lee has pointed out to me that what the Judge said at paragraph 55 does not appear easily reconcilable with what the Judge said at paragraph 58 - “Having found that the July 2012 application would have been unsuccessful, I conclude that there are no compelling reasons to consider the instant application under article 8 outside the rules” – which suggests that if the Judge had thought the Appellant would have succeeded in 2012 the Judge thought this might sound under Article 8. Even if it might be said that paragraph 58 does not sit comfortably with paragraph 55, in my judgment that in no way invalidates the essential correctness of what is said at paragraph 55.

18. In all the circumstances it seems to me that the submissions pursued by the Appellant throughout the appeal process are fundamentally flawed and to that extent I do not find any error in the Judge’s rejection of this line of argument.

19. The Appellant has also raised a line of challenge in respect of the First-tier Tribunal Judge’s fact-finding, and in particular with regard to a period of three months between 5 July 1998 and 1 October 1998. The significance of this period is that the Appellant had been able to produce some documentary evidence purportedly indicating his presence in the United Kingdom from 1 October 1998, but in order to establish 14 years presence in the United Kingdom at the date of his attempted application of 5 July 2012 it was necessary to also consider the period from 5 July 1998 up to the commencement of the documentary evidence.

20. This period of about three months has been the subject of a particular focus both before the First-tier Tribunal and in the context of the challenge before the Upper Tribunal. Of course if the ‘14 year’ argument were open to the Appellant these three months would be critical. However, in the context of a proportionality assessment that takes 20 years residence as the typical yardstick for proportionality, the three months become of considerably less relevance – to an extent that in my judgment they could not have tipped the balance in the opposite direction to the conclusion of the First-tier Tribunal.

21. Nonetheless a line of challenge is pursued in respect of the Judge’s fact-finding with regard to this period of time. It is appropriate in due deference to the arguments that have been advanced before me that I should address it irrespective of whether ultimately it is material.

22. In this regard complaint is specifically made as to what is said at paragraph 53 of the First-tier Tribunal’s decision. Paragraph 53 is in these terms:

“There is no, or certainly no reliable, documentary evidence establishing the Appellant’s presence in the United Kingdom before 5 July 1998. The documentation from Prestige Cars only establishes his presence in the United Kingdom from 1 October 1998. No other documentation assists with a crucial period. In conclusion, I am not persuaded on the balance of probabilities that the Appellant has been present in the United Kingdom at any point prior to 1 October 1998. It follows that the Appellant’s application on 5 July 2012 would have failed even had a valid application been made.”

23. Mr Lee argues, in development and amplification of the grounds of appeal upon which permission has been granted, that the Judge at paragraph 53 was in effect rejecting the Appellant’s oral evidence without explaining why. It is argued that the mere absence of supporting documentary evidence cannot be determinative, and implicitly the Judge must have not been satisfied in respect of the Appellant’s oral evidence, but that the Judge has not adequately articulated any reason as to why that should be the case.

24. In this regard I accept Mr Melvin’s submission that the passage at paragraph 53 needs to be looked at holistically in the context of the overall Decision of the First-tier Tribunal Judge.

25. The Judge has set out the Appellant’s evidence in some detail in the earlier part of the Decision, and a careful reading makes it clear that there were aspects of the evidence in respect of which there were some difficulties. For example at paragraph 16 it is said, “The Appellant did not know why the wage slips provided showed his tax code and national insurance number but no deductions for tax or national insurance”. At paragraph 18 it is said, “He was unable to explain why the identity number on his identity card differed from that on his birth certificate”. At paragraph 22 it is said, “The Appellant did not know who had paid £991 to Mr Anwar on 5 July 2012”. It is also to be noted that submissions were made by the Respondent’s Presenting Officer in respect of the Appellant’s claim to have obstacles to returning to Pakistan. At paragraph 32 the Presenting Officer’s submission is recorded in these terms, “On the Appellant’s own case he received assistance from his family in Pakistan to obtain a birth certificate, which undermined his claim [to] fear his family if returned to Pakistan.” The Judge at paragraph 57 seems to have accepted the substance of that submission, “Insofar as it is argued by the Appellant that there are insurmountable obstacles to his integration into Pakistan arising from the problems he has with his family, I reject that suggestion”.

26. The Appellant’s evidence in respect of the period between July and October 2012 was not based on any supporting documentary evidence but was rooted in his own testimony and the testimony of two witnesses who had provided witness statements in support of his case. The Judge records at paragraph 9 of the Decision that those witnesses were said to be unable to attend. It is nonetheless noted at paragraph 10 that notwithstanding their non-attendance the Appellant wished to proceed on the basis of their written statements.

27. The Judge considers the Appellant’s supporting evidence and case in respect of this period of time at paragraphs 49-52, before stating the conclusions at paragraph 53 which I have already quoted. At paragraphs 49-52 the Judge says this:

“49. Dealing firstly with whether the Appellant has established 14 years’ continuous residence in the United Kingdom or had so by 5 July 2012, none of the witnesses who gave oral evidence today in support of the Appellant were able to testify to knowing him prior to 1999. There are written witness statements from individuals claiming to have known the Appellant at least 14 years prior to the application on 5 July 2012; however, I am unable to place much, if any, weight on these statements given that the individuals concerned did not attend to be cross-examined by the Home Office.

50. In particular, I am unimpressed by the failure of a Muhammad Ali and Iftekhar Ali to attend today. Muhammad Ali claims to have been unwell by reason of ‘the flu’ subsequently described as ‘flu like illness’. However, it would appear that he was only signed off work from 29 August 2016 to 2 September 2016, hardly a serious ailment. Moreover, none of the medical documentation indicates that Mr Muhammad Ali would have been unfit to attend Tribunal. Therefore, I am utterly unconvinced that there is a reasonable explanation for this key witness not to have attended.

51. In respect of Iftekhar Ali, I have been shown the text conversation which suggests that he was in Frimley Park Trust, Wexham, on the morning of the hearing and would meet the Appellant at Tribunal. However, no details of the claimed emergency were given at the hearing or afterwards and no application was made to put the matter back or to adjourn the matter. Again, Iftekhar Ali was an important witness on the Appellant’s own case for establishing the date of his arrival in the United Kingdom, and I am unsatisfied that there is a reasonable explanation for his non-attendance.

52. Therefore, I place little weight at all on the witness statements of Iftekhar Ali and Muhammad Ali.”

28. The language used by the Judge, in particular in respect of the non-attendance of the witness Muhammad Ali, is quite ‘muscular’. This is clearly an indication that the Judge was unimpressed with the failure of these supporting witnesses to attend and allow themselves to be cross-examined by the Secretary of State.

29. In all such circumstances it seems to me looked at holistically – and with regard in particular to the paragraphs leading up to paragraph 53 - that the Judge was perfectly entitled to reach the conclusion he was “not persuaded on the balance of probabilities” that the Appellant’s case that he had been present in the United Kingdom since at least 5 July 1998 was made out on all of the available evidence.

30. This is a case where the Judge has at a number of points through the decision considered matters in the alternative - and indeed he does so when he comes to his final evaluation of proportionality. The Judge initially states at paragraph 58 that he does not consider that there are compelling reasons to go on to consider Article 8 outside the Rules because he has rejected the factual premise of the Appellant’s potential application in July 2012 being an application that could have succeeded by reason of the Appellant being unable to demonstrate fourteen years’ prior residence. However, at paragraph 59 the Judge goes on to consider matters in the alternative - “If, however, I am wrong in either conclusion...” It follows that the premise of the Judge’s considerations from paragraph 59 onwards is to accept the core of the Appellant’s claim as to the primary facts, i.e. that he had been present in the United Kingdom for as long as he claimed.

31. In my judgment what follows at paragraphs 59-61 is very clearly a proportionality balancing exercise based on the acknowledgment that the Appellant had private life established over a substantial period of residence in the United Kingdom. Indeed the fact that the Judge was undertaking a Razgar type analysis seems to be underscored by the reference to the present decision having been made “in accordance with the law and in furtherance of the legitimate objective of maintaining effective immigration controls”.

32. I am satisfied that there is nothing in substance in error in the brief alternative consideration given at paragraphs 59-61 of Article 8 outside the scope of the Immigration Rules.

33. Accordingly, for the reasons given, I conclude: that the First-tier Tribunal Judge appropriately disposed of, or rejected, the line of argument that was put at the core of the Appellant’s case; in any event the Judge made sustainable findings to the effect that the Appellant had not demonstrated to his satisfaction his residence was as long as claimed, such that the Judge was entitled to conclude that the Appellant could not have succeeded even if he had made a valid application before 9 July 2012; in any event the Judge gave adequate consideration to Article 8 in its widest sense and reached an adverse conclusion. I find no error of law and the decision of the First-tier Tribunal Judge stands.

Notice of Decision

34. The decision of the First-tier Tribunal contained no error of law and stands.

35. The Appellant’s challenge is dismissed.

36. No anonymity direction is sought or made.

The above represents a corrected transcript of ex tempore reasons given at the conclusion of the hearing.

Signed: Date: 12 April 2017

Deputy Upper Tribunal Judge I A Lewis