Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/38489/2014

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 9th October 2015
On 23rd October 2015

Before

UPPER TRIBUNAL JUDGE HEMINGWAY

Between

mr Raziq Hussain
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Imamovic of Counsel
For the Respondent: Mr Mills, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal against a determination of the First-tier Tribunal (Judge A L B Nixon) promulgated on 30th December 2013. In that determination the First-tier Tribunal dismissed the Appellant's appeal against a decision of 18th September 2014 to the effect that his application for leave to remain as a Tier 4 (General) Student Migrant was to be refused.
The Background
2. The Appellant is a national of Pakistan. He was born on 27th January 1990. He came to the UK, having obtained entry clearance as a student, in 2012 and he had valid leave until 22nd August 2014. Unfortunately, he failed the speaking and listening elements of an English test which he had taken with a view to obtaining further leave. Having failed once, he had obtained a new test date for 2nd September 2014, but, seemingly as a result of his having failed the initial test and no longer satisfying the requirements for stay as a student, he had had to give up his passport to the Home Office. It appears that he sought return of his passport the day prior to the date his test was booked (at least that was the finding of the First-tier Tribunal) but that it was not returned to him and that, as a result, he was not able to take the test at all. His application for further leave was deficient because, as a result of his failing his test, he had not been able to provide, with that application which he had made on 21st August 2014, a Confirmation of Acceptance for Studies (CAS). On that basis, the Respondent concluded that his application did not meet the requirements of the relevant Immigration Rules, in particular, paragraph 117 of Appendix A to those Rules. The Appellant appealed to the First-tier Tribunal.
The Appeal to the First-tier Tribunal and Its Decision
3. The First-tier Tribunal held an oral hearing of the Appellant's appeal on 19th December 2014. He attended and gave oral evidence. He was represented by Mr Sarwar of Counsel and the Secretary of State was represented by Mr Hussain, a Presenting Officer. It is noted, at paragraph 3 of the determination, that it was conceded by Counsel on behalf of the Appellant that he did not meet the requirements of the Immigration Rules. The appeal, therefore, proceeded on human rights grounds only. It is important to note that concession as made by Counsel because the original Grounds of Appeal to the First-tier Tribunal had sought to contend that the decision under appeal was not in accordance with the Immigration Rules and there had been a suggestion along similar lines in the subsequent application for permission to appeal to the Upper Tribunal and at paragraph 11 of a skeleton argument filed for the purposes of the hearing before me by Ms Imamovic.
4. The First-tier Tribunal, in light of the concession, did only focus upon the human rights aspects of the appeal. The Tribunal considered Article 8 in the context of the Immigration Rules by looking at paragraph 276ADE of Appendix FM. The judge found, uncontroversially, that the requirements contained therein were not met bearing in mind that the Appellant had spent all of his life in Pakistan prior to coming to the UK in 2012 and that no reason had been advanced as to why he could not return to Pakistan or why there might be any significant obstacles to his integration resulting from any return. Indeed, there has been no subsequent challenge to that conclusion. The First-tier Tribunal then went on to say this;
"13. I have borne in mind the decisions in Nagre [2013] EWHC 720 and Gulshan (Article 8 - New Rules - correct approach) [2013] UKUT 00640, and the case of Shahzad (Art 8: legitimate aim) [2014] UKUT 00085 and these cases make it clear that the Appellant must raised (sic) arguably compelling or compassionate grounds to cause me to go on to consider this appeal under Article 8. I find that the Appellant has failed to out (sic) forward any such grounds. I have seen evidence to show that he failed the listening and speaking test and then made an application in the full knowledge that he could not meet the Rules. It is right to say that he informed the Respondent of the new test date on the application form and I have seen evidence to show that he was not permitted entry sit (sic) the test as he was not in possession of his passport. I note from his witness statement that he requested its return the day before the exam date and accordingly, it was unlikely that he would have ben (sic) given the passport with such short notice, even it (sic) were the Respondent's policy to return travel documents when the applicant failed to meet the Rules. He complains that he asked for his passport following the refusal. I note that a letter was sent to the Appellant dated 1st September 2014 explaining that it would not be returned to him. I do not find this to be unfair. It seems clear to me that the Appellant left his application to the last minute and knew full well that he had failed relevant elements of the English requirements. The burden was always upon him to ensure that he satisfied the legal requirements before making his application and the Respondent cannot in my judgment be criticised for not bending the Rules to assist him. The policy of not returning documents when an application fails or is bound to fail is a common sense one. I do not agree with Mr Sarwar that he met the Rules otherwise. I find the Appellant, not only did not have a valid CAS, he also failed to have the requisite English certificate and there was no guarantee that he would have passed the test had he retaken it on 2nd September. I find therefore that he has failed to show that he has arguable compelling grounds.
14. Had I gone on to consider Article 8, my decision would have been the same, the Appellant having failed to show that the decision was disproportionate to the need for effective immigration control. I would have had regard to Section 117B of the Nationality, Immigration and Asylum Act 2002 as an additional part of the proportionality assessment and noted in particular that the Appellant failed the speak element of the English test. This appeal must fail accordingly."
5. The First-tier Tribunal then went on to confirm that it was dismissing the appeal.
The Application for Permission to Appeal to the Upper Tribunal
6. The grounds, as originally drafted, have been built upon in the skeleton argument referred to above. Essentially, though, the complaint is, aside from the small point about the Immigration Rules I have touched upon above, that the First-tier Tribunal erred in law because it applied a threefold test to its consideration of Article 8 being
(a) a consideration of the Immigration Rules and what might be referred to as the Article 8 related Immigration Rules;
(b) a consideration as to whether there were any arguably compelling or compassionate grounds such as to justify going on to consider Article 8 outside the Rules;
(c) an actual consideration of Article 8 outside the Rules.
7. It was contended there were only two steps being (a) and (c), that there was no intermediate test, reliance being placed primarily though not exclusively upon MM Lebanon [2014] EWCA 985 and that this had resulted in the First-tier Tribunal either not considering article 8 outside the Rules or doing so only perfunctorily. There was also a contention there was little to show it was in the public interest not to grant the Appellant what he was seeking. Permission to appeal was granted by a Judge of the First-tier Tribunal in these terms;
"Even though the judge's decision and reasons was adequate on the basis of the Immigration Rules, it is nonetheless arguable that in relation to argue Article 8 the judge should have borne in mind the decisions of MM Lebanon [2004] EWCA 985 and MK (Pakistan)".
8. Permission having been granted, the appeal was listed before the Upper Tribunal on 10th June 2015. It appears that, as a result of a misunderstanding, the Deputy Upper Tribunal who had been allocated the appeal dealt with it on the papers despite the fact that the Appellant and his representatives had been informed that the hearing was to be adjourned to a different date. There is no doubt that that amounted to procedural unfairness as was recognised in a short decision by Upper Tribunal Judge Jordan of 27th August 2015, setting aside the papers determination which had been adverse to the Appellant.
9. Accordingly, when matters came before me, it was to consider whether, in light of the grounds and the application for permission, the First-tier Tribunal had erred in law.
The Hearing Before Me
10. The Appellant was represented by Ms Imamovic of Counsel. The Respondent was represented by Mr Mills, a Home Office Presenting Officer. Ms Imamovic made submissions in line with the contents of the grounds and her skeleton argument. The First-tier Tribunal had misdirected itself. It had looked at Article 8 outside the Rules but only in a cursory manner. There is no intermediate test as the First-tier Tribunal had mistakenly thought. The Appellant had pursued his education in the UK and built up a private life. It was the Respondent's fault that the Appellant found himself in the position that he was in. That was a relevant factor when considering proportionality and should have been taken into account by the First-tier Tribunal. His future is now jeopardised.
11. Mr Mills accepted that there was no intermediate test as such but contended that it was simply the case that, with respect to many appeals, there would be nothing to consider after an assessment under the Rules. In this case nothing of a persuasive nature had been advanced. Even if the First-tier Tribunal had erred in law such an error could not be material. Article 8 is not there to protect a person's right to study in the UK.
My Decision
12. First of all, I have to say that there is nothing in any contention that the First-tier Tribunal erred with respect to its deciding that the requirements of the Immigration Rules concerned with the extension of leave for the purpose of studies were not met. For one thing, the Rules do require a CAS to be provided and, on any view, that was not done here. Perhaps more importantly even than that, Mr Sarwar had clearly acknowledged that the requirements of the Immigration Rules were not met and the First-tier Tribunal cannot be criticised at all for accepting that concession and for then focussing solely upon the arguments under Article 8 either within or outside the Rules.
13. It may be that the First-tier Tribunal should have simply considered the matter under the Immigration Rules and then moved straight to an Article 8 assessment outside of the Rules. However, its determination has to be read as a whole. When that is done it is apparent that much of what it had to say when considering whether there were arguably compelling or compassionate grounds to justify a consideration of Article 8 was relevant to such a consideration outside the Rules. Thus, it noted that the Appellant had failed his English language test, it noted that with respect to his intended re-sit he had only requested the return of the passport a single day prior to the date which had been set for that examination, it noted that when he made his application he had done so knowing it was defective, it took into account the provisions of 117B of the Nationality, Immigration and Asylum Act 2002 and it thought the Respondent's policy of not returning documents when an application had failed or was bound to fail was "a common sense one". It is not right to say, therefore, that the Article 8 consideration was, on a full reading of the determination, perfunctory at all. No error of law was made.
14. There is, in any event, a further point. The Appellant had not contended any more than that he wanted to remain in the UK to pursue his studies. It had been stated in Nasim & Others (Article 8) [2014] UKUT 25 (IAC) that Article 8 had only limited utility in private life cases which, like this one, were far removed from the issue of the protection of an individual's moral and physical integrity. The Upper Tribunal said this;
"19. It is important to bear in mind that the 'good reason', which the state must invoke is not a fixity. British citizens may enjoy friendships, employment and studies that are in all essential respects the same as those enjoyed by persons here who are subject to such controls. The fact that the government cannot arbitrarily interfere with a British citizen's enjoyment of those things, replicable though they may be, and that, in practice, interference is likely to be justified only be strong reasons, such as imprisonment for a criminal offence, cannot be used to restrict the government's ability to rely on the enforcement of immigration controls as a reason for interfering with friendships, employment and studies enjoyed by a person who is subject to immigration control.
20. We therefore agree with Mr Jarvis that [57] of Patel & Others is a significant exhortation from the Supreme Court to refocus attention on the nature and purpose of Article 8 and, in particular, to recognise its limited utility to an individual where one has moved along the continuum, from that Article's core area of operation towards what might be described as its fuzzy penumbra. The limitation arises, both from what will at that point normally be the tangential effect on the individual of the proposed interference and from the fact that, unless there are particular reasons to reduce the public interest of enforcing immigration controls, that interest will consequentially prevail in striking the proportionality balance (even assuming that stage is reached)."
15. Against that background, even if I had decided that the First-tier Tribunal had erred in law, and I expressly have not, I would have concluded that any such error could not be material because, on the facts, given the approach set out in Nasim, the First-tier Tribunal would have inevitably decided that Article 8 was not engaged.
Decision
There is no material error of law in the decision of the First-tier Tribunal. Its determination shall, therefore, stand.
No anonymity direction is made.

Signed Dated

Upper Tribunal Judge Hemingway

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Upper Tribunal Judge Hemingway