Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/37700/2014
IA/37705/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 November 2016
On 18 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

MRS DIVYABEN JAGDISH DABASIYA
Mr jagdish virji dabasiya
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: No appearance
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS
Background
1. I refer to the Decision on Error of Law and Directions promulgated on 30 September 2016 following a hearing at Field House on 21 September 2016 which is appended to this decision. In summary the first appellant in this case was born on 12 October 1988 and is a citizen of India and the second appellant is also a citizen of India, born on 28 November 1984. The papers indicate that the first appellant was first granted leave to enter the United Kingdom as a Tier 4 (General) Student on 20 March 2010. She was granted leave until 16 January 2012. On 21 September 2011 she was refused further leave to remain in the UK as a Tier 4 (General) Student and on 23 October 2013 she was refused further leave to enter the United Kingdom as a Tier 4 (General) Student.
2. The first appellant appealed and her initial appeal was allowed on 24 January 2013. On 24 May 2012 the Home Office revoked the licence of the college where the appellant had been studying. On 11 September 2014 the respondent issued a further letter refusing the first appellant's application to vary her leave and issuing the decision to remove her by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006. The second appellant is a dependant on the first appellant's status.
3. As set out in the Decision on Error of Law and Directions, Judge of the First-tier Tribunal Suffield-Thompson dismissed the appeals of both appellants under the Immigration Rules in a decision promulgated on 26 October 2015. As indicated in my decision promulgated on 30 September 2016, there was no error of law in that decision.
4. However, Judge Suffield-Thompson failed to address Article 8 despite the fact that the appellant in her grounds of appeal to the First-tier Tribunal raised the ground that the respondent's decision was contrary to the provisions of the European Convention on Human Rights.
5. I found an error of law in the judge's failure to deal with those grounds of appeal. As further indicated in my decision promulgated on 30 September 2016 it emerged during evidence from the appellant that although she confirmed that she did not need an interpreter she appeared to be struggling with some of the questions that were asked. Although it was not clear at that point whether this was due to her difficulties with English and/or simply because she did not have an answer to the questions, in the interests of fairness I agreed to adjourn the hearing to obtain an interpreter, at the request of Mr Tarlow on behalf of the Home Office.
6. However at the reconvened hearing on 9 November 2016 there was no appearance by or on behalf of the appellants despite the fact that I was satisfied that the notice of hearing had been properly issued. I noted that the address for service of the notice of hearing was the same address in the appellants' applications to the Home Office and there is no indication that there had been any change in this address. Although the appellants had been represented at the previous hearing by Mr L Lourdes of Counsel, I understand that this was under direct representation arrangements and therefore the address for service was that of the appellants. The clerk to the Upper Tribunal on my instructions endeavoured to contact the appellants using the telephone number provided on their application to the Home Office. However there was no response from this number which I understand did not appear to be in service.
7. I considered the Tribunal Procedure (Upper Tribunal) Rules 2008 including the overriding objective at Rule 2 as well as Rule 38. Rule 38 provides that if a party fails to attend a hearing, the Upper Tribunal may proceed with the hearing if the Upper Tribunal -
"(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and
(b) considers that it is in the interests of justice to proceed with the hearing."
8. I was satisfied as noted above that the appellants had been notified of the hearing and/or that reasonable steps had been taken to notify them. I was satisfied that the appellants had been given ample opportunity to adduce evidence in support of their Article 8 appeal but had chosen not to do so. I was satisfied that it was in the interests of justice to proceed with the hearing.
9. I heard submissions from Mr Tarlow which are recorded in full in the Record of Proceedings.
Article 8
10. The respondent refused the first appellant's application in a decision dated 1 July 2014 and 11 September 2014 due to the appellant's failure to comply with the Immigration Rules under the Points-Based System. As noted above, the decision of Judge of the First-tier Tribunal Suffield Thompson to dismiss the appellants' appeal against that refusal stands.
11. The appellants do not meet the requirements of the Immigration Rules. As I noted at paragraph 17 of my Decision on Error of Law and Directions it was for the appellants to demonstrate the compelling circumstances which might merit a grant of leave outside the Immigration Rules. No such information or evidence has been produced.
12. I accept that the appellants are a married couple and therefore share a family life. I also accept that the information would indicate that the appellants first entered the UK in 2010. However there was nothing to suggest that the appellants could not return together to India. I am not satisfied that the decision would constitute any interference with their family life. There was no evidence produced of any other family members other than the first and second appellants.
13. In relation to their private lives, although it is not disputed that the appellants may have developed a private life in the UK, again there was nothing before me to suggest that there was anything about that private life that might require consideration in relation to Article 8 outside of the Rules.
14. I am not satisfied that the there was any information or evidence before me that might suggest that there was any prospect of the appellants establishing compelling circumstances such that a grant of leave under Article 8 was appropriate. I have reminded myself of the relevant jurisprudence including that Article 8 is not a general dispensing power and that "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" (Patel & Ors v Secretary of State for the Home Department {2013] UKSC 72 applied).
15. The appellants, neither in their grounds of appeal nor since then, have failed to produce any evidence that might displace that presumption in relation to their private life.
16. The case of Singh v SSHD [2015] EWCA Civ 74 at paragraph 66(2) provides:
"If the decision-maker's view is straightforwardly that all the article 8 issues raised have been addressed in determining the claim under the Rules, all that is necessary is, as Sales J says, to say so."
I am satisfied that this is such a case.
17. I am therefore satisfied that no further separate consideration of Article 8, outside the Immigration Rules, is required.
18. In the alternative that I am wrong, considering the five stage test in relation to private life I accept that the appellants may have established private life in the UK and that the respondent's decision will interfere with that decision. Such decision is in accordance with the law and for the purposes of maintaining effective Immigration Control. Considering the final question as to whether such a decision is proportionate, I have considered in the appellants' favour that they have been in the UK for approximately 6 years and may well have invested both time and money in their life and education here (although as noted no adequate information or evidence was produced).
19. In terms of the public interest I have considered Section 117 of the Nationality, Immigration and Asylum 2002 Act. I have reminded myself that the maintenance of immigration control is the public interest. As the first appellant required an interpreter for her hearing, despite studying in the UK, there was no adequate evidence that she could speak English and I therefore weigh this in the public interest. There was no suggested that the appellants have been anything other than financially independent in the UK and therefore this is a neutral factor. I have further taken into consideration that little weight should be give to a private life established at a time when the person's immigration status is precarious, which it is in this case. Taking into account all the factors, in the alternative to my primary findings I am satisfied that the decision is not a disproportionate interference with the appellants' Article 8 rights.

Conclusion
20. The First-tier Tribunal's decision dismissing the appellants' appeals under the Immigration Rules does not contain an error of law and shall stand (as per my decision promulgated on 30 September 2016). The decision under Article 8 is remade dismissing the appellants' appeal.

No anonymity direction was sought or is made.

Signed Date: 17 November 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

APPENDIX

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/37700/2014
IA/37705/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 September 2016

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Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

MRS DIVYABEN JAGDISH DABASIYA
Mr jagdish virji dabasiya
(ANONYMITY DIRECTION Not Made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr L Lourdes, Counsel
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION ON ERROR OF LAW AND DIRECTIONS
Background
1. The first appellant in this case was born on 12 October 1988 and is a citizen of India. The second appellant is her husband, also a citizen of India and born on 28 November 1984. On 11 February 2012 the first appellant made an application for leave to remain in the UK as a Tier 4 (General) Student Migrant under the Points-Based System (PBS). This application was refused on 23 October 2012. The appellant appealed and her appeal was allowed on 24 January 2013. On 24 May 2012 the Home Office revoked the licence of the college where the appellant had been studying. The second appellant is a dependant on the first appellant's status.
2. On 11 September 2014 the respondent issued a further letter refusing the appellant's application to vary her leave and making a decision to remove her by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006.
3. The respondent in a decision dated 11 September 2014 indicated that the appellant was written to on 1 July 2014, giving her 60 days to 30 August 2014 in which to submit further information but no response had been received to date. The appellant's case was therefore again refused.
4. In a decision promulgated on 26 October 2015 Judge of the First-tier Tribunal Suffield-Thompson dismissed the appeals of both appellants under the Immigration Rules.
5. The appellant appealed that decision and was granted permission on the basis that there was an arguable error of law. The grounds for seeking permission to appeal to the Upper Tribunal argued firstly, that the judge had failed to adequately apply the relevant case law in respect of fairness and had failed to clarify whether the Tier 4 sponsor's licence was suspended or revoked. The second ground was on the basis that the judge had failed to adequately assess Article 8 issues.
Error of Law
Ground 1
6. I am not satisfied that it has been established there was a material error of law. The judge adjourned the hearing initially from 9 June 2015 until 22 October 2015 to enable both the appellant and respondent to submit further information but nothing further was produced. Although the grounds of appeal make reference to a statement from a Roxana Cram, there is no reference to such an individual anywhere in the papers before me and Mr Lourdes did not take this any further.
7. Mr Lourdes argued that the appellant had been unable to secure another college as she was not given either her passport. As I indicated at the hearing, this was the first time this issue had been raised and I noted from the appellant's witness statement which was before the First-tier Tribunal and dated 4 June 2015, that there was no reference in that witness statement to the appellant not receiving a copy of her passport.
8. I also drew Mr Lourdes' attention to the respondent's letter of 1 July 2014. In that letter, the respondent indicated that the appellant's appeal had been allowed on 24 January 2013. On 24 May 2012 the UK Border Agency had revoked the licence of Stevens College of Technology and Management, the appellant's previous Tier 4 sponsor. This decision to revoke the licence meant the CAS submitted by the appellant was no longer valid. The respondent stated that before a final decision was made, in line with the respondent's Rules, the appellant would be allowed a period of 60 calendar days to find a new Tier 4 sponsor so that they may vary their initial Tier 4 application. The 60 day period was set to end on 30 August 2014 and no extensions would be given.
9. The letter goes on to indicate that enclosed was a certified copy of the appellant's passport and that if the appellant decided to obtain a new CAS then the sponsor would need to see and retain this copy. The letter provided, in bold, the steps that the appellant would need to take including taking a copy of the letter of 1 July 2014 and a copy of their passport when they approached any potential new Tier 4 sponsor. Further advice was given. I also note that the respondent's bundle before the First-tier Tribunal included a Royal Mail tracking proof of delivery dated 4 July 2014 which I am satisfied indicates that the letter, which included the certified copy of the appellant's passport, was signed for on 4 July 2014 at 10:12am.
10. It was significant in my view that the appellant in her witness statement almost a year later on 4 June 2015 stated that the respondent had not given her 60 days. This is clearly incorrect. The witness statement referred to "The definition of the grant as per the Immigration Rules, is to make the immigration status document, i.e. either the BRP or the visa stamp on the passport, so that I can get the admission in the new college" which Mr Lourdes suggested referred to the lack of the appellant's certified copy passport.
11. I am not persuaded by this argument. The appellant's witness statement of 4 June 2015 was difficult to follow. However, she made no reference to not receiving her copy passport with the 4 June 2015 letter. It is not credible that she would not have set out this claimed omission at the earliest date. There is also no adequate explanation as to why the appellant repeatedly stated in her witness statement that she was not granted 60 days to obtain a new sponsor when it is clear from the letter of 1 July 2014 that she was.
12. I am not satisfied therefore that Judge of the First-tier Tribunal Suffield-Thompson made any error. The judge lamented the paucity of information from both parties in this case but indicated that she was in a position to proceed and that the parties had ample time to provide any further documentation. Although the judge did not have the benefit of the decision of the First-tier Tribunal promulgated on 9 December 2013 (and neither has the Upper-tier Tribunal had sight of that decision) the judge was quite properly satisfied that the respondent had given the appellant a further 60 days to obtain a certificate and that these 60 days expired on 30 August 2014.
13. I can find no fault with the judge's subsequent findings that the respondent treats all appellants in this situation equally, allows them a further 60 days, that this policy is fair and consistent and that it was for the appellant to meet the Rules. The appellant had an opportunity to obtain a new CAS or make a fresh application.
14. I indicated at the hearing that there was no material error of law in the judge's approach to the appellant's appeal under the Rules. Mr Lourdes indicated in any event that his submissions to the Upper Tribunal rest primarily on the Article 8 issue in ground 2.
15. There is therefore no error of law in respect of ground 1.
Ground 2
16. However, in respect of ground 2 Mr Tarlow conceded, that although he relied on the respondent's Rule 24 response, he was in some difficulties. It is clear that the appellant in her grounds of appeal to the First-tier Tribunal at paragraph 5 submitted that the respondent's decision was contrary to the provisions of the European Convention on Human Rights. Additionally, in her witness statement of 4 June 2015 the appellant at paragraph 9 asserted that she relied on the case of CDS ("PBS available": Article 8) Brazil [2010] UKUT 00305 (IAC) in relation to private life. Although as I indicated there is more up-to-date case law in respect of private life in the UK, I am satisfied that the appellant clearly raised Article 8 human rights grounds in her appeal and Judge Suffield-Thompson's decision is silent on this issue.
17. Although the respondent argued that there is no prospect of success for the appellant's case under Article 8 and it is clear that the appellant will have an uphill struggle including in showing what the compelling circumstances are which merit a grant of leave outside of the immigration rules, it cannot be said, in the absence of any findings in relation to Article 8 that such an outcome is inevitable. I am therefore satisfied that the decision of the First-tier Tribunal contains an error of law. As I indicated at the hearing, I preserve Judge Suffield-Thompson's findings of fact and the decision in relation to the immigration rules.
18. I was initially disposed to remaking the decision at the hearing, and Mr Lourdes confirmed that he was in a position to proceed. However, it emerged during evidence that the appellant, although she confirmed that she was understanding the proceedings, appeared to be struggling with some of the questions. It was not clear to me at that point whether this was because of her difficulties with English and/or because she simply did not have an answer for the questions. However, in the interests of fairness I adjourned the hearing to obtain an interpreter. Unfortunately there was no Gujarati interpreter available on the day. The appellant is therefore to be given an opportunity to give evidence with an interpreter.

Notice of Decision on Error of Law
19. The First-tier Tribunal's absence of consideration of Article 8 issues amounts to an error of law capable of affecting the outcome of the appeal and that part of the decision is set aside. The decision under the Immigration Rules is preserved its entirety.
20. The decision on Article 8 issues will be remade by the Upper Tribunal.

No anonymity direction was sought or is made.
Directions
(1) The appeal succeeds to the extent set out above and the decision of Judge Suffield-Thompson in relation to Article 8 only is set aside.
(2) The decision on Article 8 will be remade in the Upper Tribunal before a single Judge.
(3) The appellant to file and serve an indexed bundle containing the appellant's up-to-date witness statement addressing Article 8. The indexed bundle must be filed and served no later than 7 days before the reconvened hearing date. The bundle is to separately tabulate:
(i) The evidence relied upon before the First-tier Tribunal; and
(ii) The additional evidence is now sought to be relied upon before the Upper Tribunal.
(4) Any failure to comply with these directions may lead the Tribunal to exercise its powers to decide the appeal without a further hearing, or to conclude the defaulting party has no relevant information, evidence or submissions to provide.

Signed Date 30 September 2016

Deputy Upper Tribunal Judge Hutchinson