Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/32114/2015

THE IMMIGRATION ACTS

Heard at Manchester, Piccadilly Decision & Reasons Promulgated
On the 22nd March 2017 On the 12th April 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MR ABBAS UL-HAQ
(Anonymity Direction not made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr McIndoe (Solicitor from Latitude Law)
For the Respondent: Mr McVeety (Senior Home Office Presenting Officer)
DECISION AND REASONS
1. This is the Appellant’s appeal against the decision of First-tier Tribunal Judge Ransley promulgated on the 2nd August 2016 in which she rejected the Appellant’s appeal against the decision by the Respondent to refuse his application for Leave to Remain taken on the 18th September 2015. In her decision, Judge Ransley found that the Appellant did not discharge the burden of proof upon him to show that he met the requirements for Leave to Remain under Paragraph 276ADE(1)(v) of the Immigration Rules in respect of his being aged 18 years or above and under 25 and him having spent at least half of his life continuously in the UK (discounting any period of imprisonment). She further found that there were no exceptional compelling circumstances which would justify granting him Leave to Remain outside of the Immigration Rules and that the Respondent’s decision to remove him was proportionate for the purposes of ECHR Article 8(2) taking into account all of the circumstances in the case including the mandatory factors that had to be required under Section 117B of the Nationality, Immigration and Asylum Act 2002.
2. The Appellant has sought to appeal against that decision for the reasons set out both within the original Grounds of Appeal and the renewed Grounds of Appeal, both of which I have fully taken account of in reaching my decision. It is argued, inter alia, on behalf of the Appellant in the first ground of appeal that First-tier Tribunal Judge Ransley failed to take account of all the material evidence and that she had only considered 6 pieces of evidence, a very small proportion of the Appellant’s bundle which ran to a total of 298 pages and there was significant evidence regarding the Appellant’s residence and life in the UK such as bills, education certificates and medical documents which had not been considered in the assessment made by the Judge and that she had failed to give weight to all material evidence in reaching important facts or findings in respect of the Appellant’s Human Rights. It is argued within the second ground of appeal that the Judge erred in finding that the Appellant had on his own admission no identity document to show his biological age and that the Appellant had not discharged the burden of proof on him that he met the requirements for leave under Paragraph 276ADE(1)(v) as it is said that his date of birth was the 11th January 1991 and that had not been disputed by the Respondent or Judge Hodkinson, in the Appellant’s previous asylum appeal and the Appellant had produced evidence showing his progression in age in the form of photographs and letters of support from teachers and members of the community.
3. Permission to appeal was initially refused by Designated Judge of the First-tier Tribunal Peart on the 2nd November 2016, but was subsequently granted by Upper Tribunal Judge O’Connor on the 12th December 2016, when he found that given the extent of the evidential matrix before the First-tier Tribunal including letters from a school teacher, dentist and other professionals, it was arguable that the First-tier Tribunal’s conclusion that the Appellant had not lived in the UK for over half of his life was either irrational and/or inadequately reasoned, even given the starting point dictated by the earlier conclusion of Judge Hodgkinson and that permission was therefore granted to appeal on all grounds.
4. In the Respondent’s Rule 24 Reply dated the 5th January 2017, it is argued that the First-tier Tribunal Judge directed herself appropriately and that there was no error in the First-tier Tribunal Judge’s approach and the Appellant was a dishonest individual having applied to the Tribunal. It is said his own solicitor declined to rely upon 2 witnesses attending on his behalf and that the Judge had referred to the pieces of evidence referred to by her own representative as being the most pertinent and that the Judge cannot be expected to list and refer to every single piece of evidence in which is supposed to be a concise determination and that the Judge made findings which were perfectly open to her on the evidence.
5. It was on that basis that the case came before me in the Upper Tribunal.
Oral Submissions
6. In his oral submissions on behalf of the Appellant Mr McIndoe said there were 2 grounds of appeal. He argued that firstly Judge Ransley had failed to consider all of the documents in the case and that she had relied upon the oral evidence of the Appellant and 2 witnesses and referred only to a very small number of the documents. Mr McIndoe stated that he had represented the Appellant at the First-tier Tribunal Judge and that he had run through the documents in his submissions and referred to important page numbers. He accepts that the Judge did not need to refer to every piece of evidence but he argued that the body of the evidence between pages 33 and 259 of the Appellant’s bundle ran to a couple of hundred pages and was sufficient to establish the extent of the Appellant’s life in the United Kingdom. He argued that in respect of the more objective items of evidence there was evidence of the Appellant registering with a GP in August 2005 at page 46 of the bundle and there was evidence from a local council and head teachers. In respect of the second ground of appeal he argued that when Judge Ransley found there was no reason to depart from the previous finding of First-tier Tribunal Judge Hodgkinson who considered the Appellant’s previous asylum appeal, that she had misdirected herself and that there was sufficient weight to depart from that decision and evidence that should have led her to go behind it.
7. However, I raised with Mr McIndoe at the appeal hearing at that point that given the Appellant’s claimed date of birth on the 11th January 1991, in order to have succeeded under the Immigration Rules, in terms of establishing that he had lived more than half of his life in the UK for the purposes of Paragraph 276ADE(1)(v), it would have been necessary for Judge Ransley not simply to find that the Appellant had come to the UK and lived in the UK prior to 2010, the date when Judge Hodgkinson found that he had entered the UK, but that in fact he had entered and resided in the UK continuously since 2003. Mr McIndoe agreed with that proposition. I therefore asked him what objective evidence there was that he said that Judge Ransley had not dealt with, in respect of the Appellant having come to the UK and resided in the UK since 2003. Mr McIndoe conceded that the documentation in respect of that was from the letter from the head teacher at page 174, the letter from the Imam at page 178, the letter from the Appellant’s maths teacher at page 248 and the enrolment letter dated the 16th March 2015 from the Attendance and Strategy Manager Mrs Mansouri at page 99 of the bundle. However, he conceded that those were the only documents that he had referred Judge Ransley to in respect of the Appellant having been purportedly in the UK since 2003, and that she had referred to and dealt with that documentation in her decision.
8. In his submissions, Mr McVeety argued that the Appellant had to establish that he had lived in the UK since 2003, and that the Appellant was not simply seeking to establish that the decision of Judge Hodkinson was wrong. He argued the Appellant was an individual who was content to lie to the Tribunal and that on his own case he had lied to the previous Immigration Judge, Judge Hodgkinson. He said that the Judge had referred to the documentation in respect of the Appellant purportedly coming to the UK in 2003 and that there was no objective evidence in that regard other than the statements referred to and that the Judge had considered that evidence and given clear and adequate reasons for rejecting that evidence. He argued there was no perversity in the Judge’s reasoning. He argued that the Appellant’s representative himself had not relied upon 2 witnesses at the appeal and the Judge had considered the evidence of the live witnesses, even if she had not referred to every single supporting letter from members of the community, which refer to the Appellant being an “honest citizen”. He argued that none of those people attended at the appeal to support the Appellant. He argued that even if there was an error, such error was not material.
9. I reserved my decision.
My Findings on Error of Law and Materiality
10. As was stated by the Upper Tribunal in the case of Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC) it is generally unnecessary and unhelpful for the First-tier Tribunal to rehearse every detail or issue raised in a case and that this leads to judgments becoming overly long and confused and it is not a proportionate approach to asylum cases. It is necessary for Judges to identify and resolve key conflicts in the evidence and to explain in clear and brief terms their reasons, so the parties can understand why they have won or lost. It is not incumbent upon the First-tier Tribunal Judge to reference, describe and analyse every single piece of documentary evidence contained within the respective bundles, if the Judge had taken all of the material evidence into account when reaching their decision.
11. Further , it is incumbent upon representatives, when presenting appeals before the First-tier Tribunal, to draw the First-tier Tribunal Judge’s attention to documents which the advocates seeks to argue are important and material in respect of the issues before the First-tier Tribunal. It is not appropriate for an Appellant simply to produce bundles of evidence running to many hundreds of pages, and not refer the Judge to the contents of the same, if documents contained therein are material to the issue before the Judge, and then on appeal simply seek to argue that the Judge failed to take account of documentary evidence that was not referred to by the advocates in the appeal as being relevant or material.
12. In this case, however, Mr McIndoe represented the Appellant at the First-tier Tribunal, and accepted for the purposes of establishing that the Appellant met the requirements of Paragraph 276ADE(1)(v) it was necessary for the Appellant to establish not simply that the Appellant had been in the UK at a time prior to 2010 (the date when Judge Hodkinson found that he had entered the UK in his previous asylum appeal) but that the Appellant had actually entered the UK and had been living in the UK since 2003, in order to establish that he had been living there for more than half of his life by the date of the hearing before Judge Ransley.
13. In that regard, I specifically asked Mr McIndoe as to the evidence there was to indicate the Appellant had been in the UK since 2003, as opposed to any later date, and Mr McIndoe referred me specifically to the letter from the Associate Head Teacher Dr Lythgoe at page 174, the letter from the Imam at page 178, the letter from the Appellant’s Maths Teacher Mr Khan at page 248, and the enrolment letter at page 99 of the Appellant’s bundle.
14. However, as Mr McIndoe properly conceded, First-tier Tribunal Judge Ransley at [31] properly considered all of that evidence, and I find she gave clear, adequate and sufficient reasons for rejecting the same and therefore was entitled to find that the evidence produced was insufficient to show the Appellant had entered the UK in 2003 as now claimed by him, despite that in his previous asylum appeal, he had claimed that he had entered the UK in 2007, and had been found by First-tier Tribunal Judge Hodgkinson to have entered in 2010.
15. The issue before Judge Ransley was not whether Judge Hodgkinson was right in finding that he had entered in 2010, but whether the Appellant had established that he had entered in 2003 and been here since that date. On the basis of the evidence presented, the Judge was entitled to make the finding that she did that the Appellant had not shown that he had been here continuously since 2003 and had therefore had not proved he had been in the UK for more than of his life.
16. In respect of the second ground of appeal, it is argued that the Appellant’s date of birth had not been disputed in either the original refusal letter or in Judge Hodgkinson’s previous decision, but the Appellant’s date of birth was not specifically put in issue in either the previous asylum appeal or in the refusal letter. There was therefore not a previous finding of fact following a dispute regarding his age, which was therefore to be Judge Ransley’s starting point following Devaseelan, nor was there an actual concession or finding by the Respondent regarding his age and I find it was open to her to make findings on the evidence before her as to the Appellant’s age and to take into regard the fact that he had not produced an ID document to show his biological age.
17. In any event, even if I am wrong and she did err in that regard, given her findings that the Appellant had not established that he had entered the UK in 2003 and lived here continuously since, he would not have met the requirements of Paragraph 276ADE(1)(v) of the Immigration Rules, even on his own claimed date of birth of the 11th January 1991. Any error in that regard was therefore immaterial.
18. I further find that the Judge perfectly properly considered the question as to whether or not leave should be granted to him outside of the Immigration Rules for the purposes of Article 8 and the Judge properly took account of all the relevant evidence and information and made findings which were open to her that there were no exceptional or compelling circumstances and properly considered Section 117B of the Nationality, Immigration and Asylum Act 2002 in considering the proportionality question.
19. In such circumstances, the decision of First-tier Tribunal Judge Ransley does not disclose any material error of law and the decision is maintained.

Notice of Decision
The decision of First-tier Tribunal Judge Ransley does not contain any material error of law and is maintained. The Appellant’s appeal is dismissed.
I make no order in respect of anonymity, no such order having been made by First-tier Tribunal Judge Ransley, and no such order having been sought before me.
Signed

Deputy Upper Tribunal Judge McGinty Dated 24th March 2017