Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/32641/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 19 April 2017
On 25 April 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

Syed Shoebul Islam
[No anonymity direction made]
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the appellant: Mr J Holt, instructed by TM Fortis Solicitors
For the respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellant’s appeal against the decision of First-tier Tribunal Judge Brookfield promulgated 4.10.16, dismissing on all grounds his appeal against the decision of the Secretary of State, dated 24.9.15, to refuse his application made on 11.3.15 for ILR on the basis of 10 years’ long residence.
2. The Judge heard the appeal on 20.9.16.
3. First-tier Tribunal Judge Scott Baker granted permission to appeal on 20.12.16.
4. Thus the matter came before me on 19.4.17. as an appeal in the Upper Tribunal.
Error of Law
5. For the reasons summarised below, I find that, without there necessarily being any material error on the part of Judge Brookfield, looking at the case history, the decision of the First-tier Tribunal should be set aside on general grounds of fairness, to enable the matter to be heard afresh.
6. The grounds of application for permission to appeal assert that the First-tier Tribunal erred in finding that the Tribunal did not have the power to review the respondent’s exercise of discretion on appeal, and secondly that the judge had been procedurally unfair in failing to grant an adjournment to provide evidence of his previous solicitor’s negligence and then to attribute blame on the appellant for failing to submit a correct application.
7. In granting permission to appeal, Judge Scott Baker considered that the decision displayed an internal inconsistency between the finding at [8] that the break in lawful residence was a result of professional negligence, and that at [10] that he was not absolved from responsibility to check on the progress of his application just because he had instructed solicitors.
8. Judge Scott Baker considered it arguable that in these circumstances the failure to grant an adjournment was unfair, applying Nwaige (adjournment: unfairness) [2014] UKUT 00418 (IAC). The judge also found the finding that the Tribunal had no jurisdiction to exercise any discretion under the immigration rules was arguably an error of law.
9. I am not satisfied that there is an inconsistency between [8] and [10]. Despite the absence of adequate evidence to support the claim, Judge Brookfield was prepared to take as her “starting point” that the break in continuity of residence was as a result of the professional negligence of his representative in 2010. This was repeated at [10(iv)]. At 10(xiii) the judge also stated she had accepted, for the purpose of article 8, that the appellant’s previous representatives were either incompetent or negligent when they submitted his application in 2011. The judge then gave cogent reasons why, on the facts of this case, the representatives’ incompetence or inconsistency did not absolve him of all responsibility for pursuing his application. For example, the judge observed that the appellant had not advised that he contacted his previous representatives to enquire about the progress of his application, or that he made any contact with the respondent when he found that his representatives were evasive and difficult to contact. There is no inconsistency between the starting point and the conclusion. The incompetence or negligence of his solicitors is not necessarily to the exclusion of all responsibility of the appellant for failing to chase up the progress of his application. Such matters would, of course, be highly relevant to whether a discretion ought to have been exercised in his favour to overlook any or all of the period of 113 days without leave.
10. The application for adjournment which was refused by the First-tier Tribunal Judge was predicated on the presumption that there were good reasons for the Secretary of State and on appeal the First-tier Tribunal to exercise discretion in his favour.
11. In this regard, Mr Holt submitted that at [8] the judge was in error in suggesting that the only discretion was the general discretion outside the Rules. He accepted that 276B contains no reference to discretion, but stated that it was never argued that the First-tier Tribunal had a discretion under that provision to allow the appeal by disapplying the Rule. The discretion he argued for at the First-tier Tribunal was that discretion in the Home Office policy guidance on long residence, which allows the decision-maker to allow LTR where there has been overstaying beyond 28 days and otherwise breaking continuity, where there are exceptional circumstances, such as hospitalisation preventing the applicant making his application. That discretion is not the general discretion to allow LTR outside the Rules. Mr Holt submitted that the First-tier Tribunal Judge erred in law by restricting her consideration of the types of discretion available to her.
12. This was a case governed by the old regime and the transitional provisions, submitted Mr Holt, allowing the Tribunal to step into the shoes of the decision-maker. He relied on Ukus (discretion: when reviewable) [2012] UKUT 307, to the effect that where the Secretary of State has exercised her discretion against the appellant, there is a statutory power under section 86(3)(b) to review that exercise of discretion, which power is preserved in the transitional provisions. The First-tier Tribunal was under the impression that no such discretion existed.
13. I agree with Mr Holt that Judge Brookfield was in error in relation to the existence of a discretion on the chronology of this case; the application was covered by the transitional provisions. However, I am not satisfied that there is any merit in the point, or that it could have made any difference to the outcome of the appeal.
14. As is clear from the refusal decision, there was consideration of exercise of discretion to grant LTR outside the Rules, but the Secretary of State declined to exercise the discretion in the appellant’s favour because “you have provided no representations to explain why this breach occurred and therefore the Secretary of State is not prepared to exercise her discretion.” The appellant had a break of some 113 days without leave in the continuity of residence, but submitted no explanation that could have justified the exercise of discretion to overlook the period without leave. Even if the First-tier Tribunal had the power to review the exercise of discretion, there was no basis upon which the Tribunal could properly have done so; on the limited information available to the Secretary of State, there was nothing upon which she could have exercised her discretion differently. The reason for exercise of discretion was a matter raised only in the First-tier Tribunal and was never put to the Secretary of State and she was never asked to exercise discretion in the appellant’s favour on such grounds. However, Mr Holt makes the point that this application was also submitted by his deficient representatives and for that reason they would not have referred to their own incompetence in any earlier application.
15. The second reason and more significant reason why I consider this submission has no merit is that Judge Brookfield proceeded on the basis that there had been incompetence or negligence on the part of his representatives. In those circumstances, there was no need to adjourn the hearing. Mr Holt sought to rely on the provisional findings of the Ombudsman that there was such negligence and some specific findings as to the appellant’s conduct. These specific findings were not available to the First-tier Tribunal and could not have been anticipated by Judge Brookfield. It was put to the judge that the pending hearing would demonstrate that his representatives had been incompetent but the judge was prepared to proceed on that very basis. As it now turns out, the criticism of the representatives includes something of an exoneration of the appellant’s own conduct. In essence, Mr Holt is seeking to criticise the failure to grant an adjournment based on evidence which was not before the First-tier Tribunal and which could not have been anticipated when the judge made her findings as to the culpability of the appellant at [10(xiii)] of the decision.
16. I am satisfied that even with the with accepted incompetence or negligence on behalf of his representatives, the judge was entitled to conclude that there was reasonably more he could have done or have been expected to do. His failure to read the application form suggests that he has not himself exercised all due diligence. Although his representatives may have been at fault, the primary responsibility for his application rests with him.
17. However, taking a step back and looking at the history of this case as a whole, including with the hindsight of the recently submitted evidence of the ombudsman’s findings, I am satisfied that the appellant has reason to consider that he has not been dealt with fairly. I make no criticism of Judge Brookfield in this regard, but ultimately the question is not whether the judge acted reasonably, but whether the appellant has been deprived of the right to a fair hearing, following Nwaigwe.
18. In Thakur (PBS decision – common law fairness) Bangladesh [2011] UKUT 00151 (IAC) the Tribunal held that a decision by the Secretary of State to refuse further leave to remain as a Tier 4 (General) Student Migrant was not in accordance with the law because of a failure to comply with the common law duty to act fairly in the decision making process when an applicant had not had an adequate opportunity of enrolling at another college following the withdrawal of his sponsor’s licence or of making further representations before the decision was made. However, the principles of fairness are not to be applied by rote: what fairness demands is dependent on the context of the decision and the particular circumstances of the applicant.
19. In R v Home Secretary, ex p. Doody [1994] 1 AC it was said, "What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is that the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer."
20. At least in part because of the failures of his legal representatives, the appellant found himself without leave and facing removal from the UK, when he might have otherwise have been granted further LTR. The application failed to raise reasons for and a request to exercise discretion in his favour, but the responsibility for that also lay, at least in part, with his representatives. His applications have been badly handled, contributing to further lengthening of any period without leave. He was thus not able to put the true history to the Secretary of State or to advance his case before the First-tier Tribunal with the very significant findings of fact of the ombudsman deployed to his advantage. With hindsight, not open to the Secretary of State or Judge Brookfield, we know that these go some way beyond a finding of incompetence or negligence. I am concerned that the ombudsman may not have full appreciated the extent to which the appellant has responsibility for the contents of his own application, even when employing legal representatives, but the fact remains that he ought to have the opportunity for the deficiencies of his representatives to be considered in the round. It may that another Tribunal would reach the same conclusion, but it is also more than a possibility that the outcome of his application or appeal could have been differently decided. In fairness, he should be given that opportunity.
Remittal
21. When a decision of the First-tier Tribunal has been set aside, section 12(2) of the Tribunals, Courts and Enforcement Act 2007 requires either that the case is remitted to the First-tier Tribunal with directions, or it must be remade by the Upper Tribunal. The scheme of the Tribunals Court and Enforcement Act 2007 does not assign the function of primary fact finding to the Upper Tribunal.
22. In all the circumstances, at the invitation and request of both parties to relist this appeal for a fresh hearing in the First-tier Tribunal, I do so on the basis that this is a case which falls squarely within the Senior President’s Practice Statement at paragraph 7.2. The has been deprived of a fair consideration of the circumstances of his applications and the nature or extent of any judicial fact finding which is necessary for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2 to deal with cases fairly and justly, including with the avoidance of delay, I find that it is appropriate to remit this appeal to the First-tier Tribunal to determine the appeal afresh.

Conclusions:
23. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law such that the decision should be set aside.
I set aside the decision.
I remit the appeal to be decided afresh in the First-tier Tribunal.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order.
Given the circumstances, I make no anonymity order.

Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The outcome of the appeal remains to be decided.

Signed

Deputy Upper Tribunal Judge Pickup

Dated