Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30937/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 November 2016
On 16 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

sukhbir singh saroya
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. E. Wilford, Counsel instructed by ATM Law Solicitors
For the Respondent: Ms A. Fijiwala, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Nicholls, promulgated on 18 May 2016, in which he dismissed the Appellant's appeal against the Respondent's decision to refuse further leave to remain.

2. Permission to appeal was granted as follows:

"The grounds argue that, although the Appellant initially requested his appeal be determined on the papers, on the day that the deadline for submission of papers to the Tribunal expired, he requested an oral hearing. A copy of the email is provided. In the circumstances the Judge should not have determined the appeal on the papers.

It appears that this request never came to the attention of the Judge and that a procedural unfairness may have arisen. Permission is therefore granted."

3. The Appellant attended the hearing. I heard oral representations from both representatives following which I reserved my decision.

4. The Rule 24 response states that the copy of the request for the oral hearing and fax transmissions had not been seen by the Respondent. At the outset of the hearing Ms Fijiwala was provided with copies of the email and fax transmissions.

Submissions

5. Mr. Wilford submitted that the request for an oral hearing had been both emailed and faxed to the Tribunal. He referred me to the case of MM (unfairness - E & R) Sudan [2014] UKUT 00105 (IAC), in particular paragraph 15 and the reference to the case of R v Chief Constable of Thames Valley Police ex parte Cotton [1990] IRLR 344. He submitted that, in the case of a defect, it was incorrect to adopt a two stage process but that they were two elements of a single question, namely whether there was procedural unfairness. If a procedural irregularity or impropriety was identified which made no difference to the outcome then there was no unfairness caused.

6. He submitted that, if the Appellant could establish a case where the outcome would have been different, there was unfairness. It had not been advanced that the Appellant could succeed under the immigration rules but that the decision was a breach of his rights under Article 8. The Appellant had been granted 60 days to find a new college but had been unable to do so. The judge had concluded that there was no unfairness because he had been granted 60 days, and it was not disproportionate to expect him to return home and seek entry clearance from abroad. It was not purely a minimal possibility that the judge could have concluded, having heard from the Appellant, that in his circumstances the decision to refuse to grant further leave constituted an interference in his Article 8 rights. For that reason, determination on the papers in ignorance of the oral evidence had led to a procedural impropriety.

7. Ms Fijiwala relied on the Rule 24 response. She submitted that there was no material error. The judge had considered the case as had been put forward by Mr. Wilford. There had been no unfairness to the Appellant as he had been granted 60 days to find a new college. The judge had considered Article 8. She submitted that the judge could have gone further and found that the right to education was not covered by Article 8, with reference to the cases of Patel [2013] UKSC 72 and Nasim and Others (Article 8) [2014] UKUT 25 (IAC). The judge had found that the Appellant could return to the United Kingdom to study further. He had considered section 117B. She submitted that there was no other outcome that the judge could have reached on the case put forward.

8. In response Mr. Wilford submitted that it was inappropriate to argue that there was no right protected by Article 8 regarding education. The question was whether or not any judge would inevitably have dismissed the appeal. The decision failed to take into account the amount of time that the Appellant had been present in the United Kingdom, which was since October 2009. The judge had found that he would have developed a private life. He submitted that, in order to find unfairness, the Tribunal did not have to be satisfied that the Appellant would probably have been successful, but only that there was a possibility that he would have been.

Error of Law

9. I have carefully considered the evidence before me of the Appellant's decision to elect an oral hearing in place of the paper consideration initially requested. I find that on 5 May 2016 the Appellant's representatives emailed the Tribunal asking for the case to be converted to an oral case. I find that they also faxed the Tribunal on the same date with the same request. A transmission verification report was received from the Tribunal. I therefore find that there is evidence before me that, within time, the Appellant requested an oral hearing but that the evidence of this request was not put before the judge prior to him making his decision on the papers.

10. I have considered the case of MM. In paragraph 15 it states

"We distill the following principles from Cotton:

1. The defect or impropriety must be procedural in nature. Cases of this kind are not concerned with the merits of the decision under review or appeal. Rather, the superior court's enquiry focuses on the process, or procedure, whereby the impugned decision was reached.

2. It is doctrinally incorrect to adopt the two stage process of asking whether there was a procedural irregularity or impropriety giving rise to unfairness and, if so, whether this had any material bearing on the outcome. These are, rather, two elements of a single question, namely whether there was procedural unfairness.

3. Thus, if the reviewing or appellate Court identifies a procedural irregularity or impropriety which, in its view, made no difference to the outcome, the appropriate conclusion is that there was no unfairness to the party concerned.

4. The reviewing or appellate Court should exercise caution in concluding that the outcome would have been the same if the diagnosed procedural irregularity or impropriety had not occurred."

11. There is evidence before me that there was a procedural defect in the way in which the Appellant's case was handled as it was dealt with on the papers, whereas the Appellant had asked for an oral hearing. In order to establish whether there was unfairness resulting from this procedural irregularity, following the case of MM, I need to consider whether this had any material bearing on the outcome of the case.

12. It is accepted that the Appellant could not meet the requirements of the immigration rules. In paragraph 7 of the decision the judge stated that it was not a case where it was argued that the Appellant could meet the requirements of the immigration rules, and this was confirmed at the hearing before me. Therefore the procedural irregularity can make no difference to the decision that the Appellant did not meet the requirements of the immigration rules.

13. Having accepted that this was not a case where the immigration rules could be met, it fell to the judge to consider whether the decision was a breach of the Appellant's rights under Article 8, which he did in paragraphs 8 and 9.

14. Paragraph 8 states:

"The only ground of appeal now available to the Appellant is that the decision to refuse him further leave to remain is unlawful because it is in breach of his human rights, presumably under article 8 of the ECHR. There is no evidence of any substantial problem in him returning to India and then submitting an application for entry clearance once he has arranged a course of study. He argued in his statement that he is partway through his studies and should be allowed to complete them. That can hardly be the case because his own evidence shows that he began by studying for a diploma in business, moved on to the examinations of the ACCA and then switched to a diploma in tourism and hospitality management. This is not a consistent line of studies and there is no evidence to show that the Appellant has completed the majority of his course and only requires a short time before final completion. He has submitted no evidence of the expenditure that he has made, nor how he has been supported during this time."

15. The judge sets out the evidence relating to the Appellant's studies. He puts no weight on the statement of the Appellant that he is partway through his studies and should be allowed to complete them, given that the evidence shows that he has swapped courses from business, to accountancy, and finally to tourism and hospitality management. The judge is aware of the argument made by the Appellant that he should be given a short amount of time to complete his studies, but he dismisses this argument because of the inconsistent line of study.

16. In paragraph 9 he states:

"It is likely that the Appellant will have developed a private life in the UK because of the time that he has been here but I have no details of any particular or individual features other than those associated with the courses of study. Even the places where the Appellant wished to study are substantially different, varying from London to Newcastle. I consider the five questions posed by the House of Lords in Razgar and find that the decision by the Respondent will interfere with such private life as the Appellant has developed in the UK but I have no evidence to show that it is of even the limited seriousness required to engage article 8 in this appeal. If article 8 is engaged, I confirm that I would answer the first four questions in the affirmative but that I also find that the interference with the Appellant's article 8 rights is justified and proportionate having regard to the substantial weight of the control of immigration. That public interest was confirmed by the provisions of section 117B(1) NIAA 2002."

17. It was not submitted at the hearing before me that at, an oral hearing, the Appellant would have given evidence as to any other aspects of his private life apart from that of education. It was submitted that it was wrong of the judge to have found that it was not disproportionate to expect him to return to India and seek entry clearance for the purposes of further study, and that there was not a purely minimal possibility that the judge could have concluded that the decision to refuse to grant further leave was an interference in his Article 8 rights with reference to his need to find a further college and to complete his education. These issues are all concerned with the Appellant's education. It has not been suggested there are any other issues relevant to consideration of the Appellant's Article 8 rights. Reference was made to the length of time that the Appellant has been in the UK, but this is not enough in and of itself to make a material difference to the outcome as he has only been here since 2009.

18. I have considered the cases provided by Ms Fijiwala. Paragraph 57 of Patel states:

"However, such considerations do not by themselves provide grounds of appeal under article 8, which is concerned with private or family life, not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under article 8."

19. There was no challenge to the judge's finding that the Appellant was not partway through a consistent course of study given the evidence of the different areas of study undertaken. There is therefore no suggestion that the decision of the Respondent interferes with a long and consistent course of study such that the money invested by the Appellant on such a course of study will be wasted, but for a short grant of leave. Neither has it been submitted that there are any substantial difficulties for the Appellant in returning to India in order to seek entry clearance from there. Even had the Appellant been following a consistent course of study, Patel makes clear that the opportunity to complete this course of study is not in and of itself is right protected under Article 8.

20. The head note to Nasim and others (Article 8) states:

"The judgments of the Supreme Court in Patel and Others v Secretary of State for the Home Department [2013] UKSC 72 serve to re-focus attention on the nature and purpose of Article 8 of the ECHR and, in particular, to recognise that Article's limited utility in private life cases that are far removed from the protection of an individual's moral and physical integrity."

21. The grounds of appeal before the First-tier Tribunal are in very general terms. There is no reference to any compelling or otherwise exceptional circumstances in the Appellant's case, such as to suggest that this was a case which concerned the "protection of an individual's moral and physical integrity". There was no reference to any such circumstances at the hearing before me. In the witness statement provided by the Appellant for the appeal, which it can reasonably be assumed would have been adopted by him as his evidence in chief at an oral hearing, there is no reference to any such issues. I therefore find that, even had the Appellant's appeal been determined with an oral hearing, rather than on the papers, he would not have succeeded under Article 8.

22. Taking into account the Appellant's circumstances, and the case law relating to private life under Article 8, I find that the procedural irregularity caused by the failure to convert the Appellant's appeal from a determination on the papers to an oral hearing made no difference to the outcome, and I therefore conclude that there was no unfairness to the Appellant.

Notice of Decision

The decision does not involve the making of a material error of law and I do not set it aside.

The decision of the First-tier Tribunal stands.

No anonymity direction is made.

Signed Date 14 November 2016

Deputy Upper Tribunal Judge Chamberlain