Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/33128/2015
IA/32191/2015
IA/32194/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 27 February 2017
On 2 March 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
JAVED HAFEEZ KHAN
KIRAN JAMIL
HISHAAM KHAN
(ANONYMITY DIRECTION NOT MADE)
Appellants
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Reeds counsel instructed by Westham Solicitors
For the Respondent: Mrs Abomi Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Appellants are a husband and wife and their child born on 7 June 1974, 26 February 1978 and 20 July 2007 respectively. They are nationals of Pakistan
3. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
4. This was an appeal by the Respondent against the decision of First-tier Tribunal Judge Davies promulgated on 25 August 2016 which allowed the Appellants appeal against the decisions of the Respondent dated 9 September 2015 to refuse the application of the first Appellant for indefinite leave to remain on the basis of 10 years continual lawful residence under paragraph 276B of the Immigration Rules with the other two Appellants as his dependents.
The Judge’s Decision
5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Davies (‘the Judge’) and at the hearing there was no Home Office Presenting Officer as he was ill and an adjournment was refused.
6. The Judge allowed the appeal against the Respondent’s decision under the Immigration Rules.
7. Grounds of appeal were lodged arguing that the Judge gave no reasons for his finding that the Appellant had been resident in the UK for a continuous period of 10 years and failed to address two lengthy periods in the UK when the Appellant had no leave. On 3 January 2017 First-tier Tribunal Judge Baker gave permission to appeal.
8. At the hearing I heard submissions from Ms Abomi on behalf of the Appellant that
(a) She relied on the grounds of appeal.
(b)The Respondent did not challenge the positive findings made in respect of the first Appellants language certificate.
(c) The chronology that opens the refusal letter shows two lengthy periods when the Appellants had no leave. There were no findings in respect of those periods.
9. On behalf of the Appellants Mr Reeds submitted that:
(a) He conceded that the Judges findings were inadequate but that it was not material as it did not follow that such reasons did not exist.
(b) Only one period without leave was explicitly relied on in the refusal letter no other period was argued. The Appellant was not obliged to address issues not raised in the refusal letter or the grounds of appeal.
10. In reply Ms Abomi on behalf of the Appellant submitted:
(a) The issue raised in the refusal letter was that the Appellant could not demonstrate 10 years lawful residence and the immigration history in the refusal letter set out a gap of over 28 days in 2011 and that the Appellants leave was curtailed to expire on 9 April 2013 and thereafter he never had any form of leave.
The Law
11. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
12. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge’s factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law.
13. I take into account that in Ex parte L Ron Hubbard (1985) Imm AR, it was held that an Adjudicator must not allow an appeal if, on the evidence before him, the appellant does not satisfy all the requirements of the Immigration Rules, but, if the matter has not been raised by the ECO, the Adjudicator must give the parties a proper opportunity to address it - if needs be by way of adjournment. That was also the view of the Tribunal in HG and RG(2005) UKIAT 00002 (Ouseley) in which the Tribunal said that, although it was commonplace for aspects of the Rules which the ECO had not relied on not to be the subject of later debate on appeal, it was quite wrong to suggest that such issues could not be debated on appeal and had to be regarded as forever conceded and closed. An Adjudicator had to be satisfied, on evidence or by concession, that the Immigration Rule relied on was met. If a plain requirement of the Rules was not met, whether previously overlooked or not, the point should be taken and, if it was not satisfactorily dealt with, the appeal must fail. That was of course subject to the requirements of procedural fairness as to notice being given of the point taken, whether by the respondent or by the adjudicator, and an adjournment being granted if that was necessary to deal with the point. That was also the view of the Tribunal in TB (Jamaica) 2006 UKAIT 00034 in which the Tribunal said that there was a duty on the IJ to consider all the requirements of a Rule even though some parts of it were not referred to in the notice of refusal (albeit that if a new ground was raised then an adjournment might be necessary to enable the appellant to deal with it.) It was confirmed by the Tribunal in RM (India) 2006 UKAIT 00039 in which the Tribunal said that an IJ cannot allow an appeal unless satisfied that all the requirements of the Immigration Rules were/are met (although in the particular case of para 320 sub paras 8 onwards this was not the case.). The Tribunal also repeated that an appeal is not limited to the issues raised in the notice of refusal.
Finding on Material Error
14. Having heard those submissions I reached the conclusion that the Tribunal made material errors of law.
15. The first matter which I raised with the parties was that I noted that the Respondent had not challenged the fact that the Judge allowed this appeal under the Rules when there was no power to do so. The decision was made to refuse human rights applications and the only right of appeal was against those decisions. The issue of the Appellants ability, or not, to meet the Rules was nevertheless relevant to the requirements of s 117B which the Judge also did not consider.
16. The refusal letter addressed to the first Appellant set out in its opening an immigration history which began with the Appellants arrival with leave as a student on 3 October 2003. That leave was extended and each period is set out in the letter until an application made on 10 February 2011 was refused on 2 March 2011 and it was not until his application dated 19 March 2011 was granted on 26 April 2011 that the Appellant’s lawful leave resumed. On 8 February 2013, the Appellants leave was curtailed to expire on 9 April 2013 and thereafter he had no leave all subsequent applications being refused. At the time therefore of the application subject of the refusal letter the subject of the appeal, 15 February 2014 the Appellant had no leave. There was therefore on the face of the Respondents refusal letter an inability to meet the Rule in issue as set out in the history that required to be addressed.
17. Mr Reeds conceded that the reasons given by the Judge were inadequate and I am satisfied that he was right to do so as there were no reasons given: the Judge simply made an assertion at paragraph 15 of the decision:
“I am also satisfied from the evidence that has been put before me that the Principal Appellant is entitled to indefinite leave to remain on the basis of continuous residence in the United Kingdom for 10 years.”
18. This finding is deficient as I am satisfied that the issues the resolution of which were vital to the Judges conclusion must be identified and the manner in which he resolved them explained. The Judge clearly appears to have not considered whether the residence was lawful as required by paragraph 276B or whether in the light of the immigration history before him, which quite plainly showed gaps, whether it was continuous. Mr Reeds suggested the error was not material because it did not follow that such reasons did not exist. I find that to be a circular argument without merit: if the reason existed the Judge had to address them and resolve them so that his reasoning was clear and particularly explain how the Appellant could have accrued 10 years lawful residence on 10 October 2013 as advanced by those arguing the case before the Judge when at that time the Appellants leave had already been curtailed.
19. Mr Reeds argued that the refusal letter did not explicitly identify all of the periods without leave and rely on them but I am satisfied that on the basis of the immigration history set out in opening of the refusal letter juxtaposed with the Rule that underpinned the refusal the Judge was obliged to consider whether the Appellant met the requirements of the Rule.
20. The failure of the First-tier Tribunal to address and determine whether the Appellants leave was both lawful and continuous in the light of his immigration history constitutes a clear error of law. This error I consider to be material since had the Tribunal conducted this exercise the outcome could have been different. That in my view is the correct test to apply.
21. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First Tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
22. In this case I have determined that the case should be remitted to be reheard before me at Manchester as I have found there was an error of law in relation to the lawfulness and continuity of residence and given that the Judge approached the appeal on an erroneous basis, that it was an appeal under the Rules rather than a human rights appeal and the requirements of s 117B 6 were also not addressed and require other findings to be made remittal is more appropriate. I preserve the findings in relation to the language certificate.

CONCLUSION
23. I therefore found that errors of law have been established and that the Judge’s determination should be set aside and the matter remitted to the First-tier Tribunal for rehearing.

Signed Date 28.2.2017
Deputy Upper Tribunal Judge Birrell