Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/38530/2014

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Decision Promulgated
On 29 September 2016
On 04 October 2016

Before

The Hon. Mr Justice McCloskey, President,

Between

ZIPENG ZHANG
(ANONYMITY DIRECTION NOT made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Joseph, of Counsel, instructed by Yangde Lawyers

For the Respondent: Mr G Harrison, Senior Home Office Presenting Officer

DECISION

1. The underlying decision on behalf of the Secretary of State for the Home Department (the "Secretary of State") giving rise to this appeal took the form of a refusal of the application of the Appellant, a citizen of the Republic of China, aged 29 years, for further leave to remain in the United Kingdom in the capacity of Tier 1 (Entrepreneur) Migrant. The ensuing appeal to the First-tier Tribunal ("FtT") was dismissed.

2. The FtT made two principal conclusions. First, the Appellant's case did not satisfy the requirements of the Immigration Rules. Second, the Appellant's alternative case (not previously advanced) under Article 8 ECHR fell to be dismissed. Permission to appeal was granted in the following terms:

"An arguable error of law has arisen in relation to the extent of the reasoning in the context of proportionality in considering whether there would be a breach of Article 8 with regard to the degree of weight attached by the Judge to the contribution to the United Kingdom economy by the Appellant as part of his consideration of proportionality."

While a second reason for granting permission to appeal was expressed, this is formulated in opaque terms and, properly, was not pursued at the hearing: see [6] infra.

3. The nexus between the grant of permission to appeal and the decision of the FtT is found in the following passage:

"On the question of proportionality, I acknowledge the submission ?. that the Appellant's business bank statement at May 2009 shows considerable funds in the business account making a contribution to the United Kingdom economy. The Appellant appears to be running a small but profitable business. Also, I appreciate that the Appellant is the software engineer who undertakes the work in the business. However, there was no evidence before me that he employed other people who would lose their employment if he returned to China. Or that he could not establish a similar business in China."

In a later passage, the Judge gave specific consideration to section 117B of the Nationality, Immigration and Asylum Act 2002 and articulated a conclusion (in terms) that the Secretary of State's decision was not disproportionate.

4. The question for this Tribunal is whether the FtT erred in law in making the aforementioned conclusion in the single respect identified by the permission Judge. The grant of permission to appeal, properly analysed, identifies no arguable error of law. The vague terminology employed by the permission Judge is that of "error" and this is not redeemed by what follows in the text. The grant of permission to appeal impels inexorably to the conclusion that the permission Judge approached the matter as, in combination, (a) a right of appeal (b) on the merits.

5. This is a truly hopeless appeal. Permission should not have been granted. The approach of the FtT to the issue of proportionality is impeccable. This conclusion flows inexorably from the application of the governing principles, to which no reference was made in either the permission to appeal application or the grant of permission: see MF (Nigeria) [2014] EWCA Civ at [ ] especially and, in helpful summary, SS (Congo) [2015] EWCA Civ at [ ], per Richards LJ.

6. Finally, I draw attention to the terms of the second reason articulated in the grant of permission to appeal:

"A further arguable error of law in respect of the delineation of the application of the criteria pursuant to Section 117 and the extent of the reasoning set out in that context."

I reiterate that grants or refusals of permission to appeal are not to be equated with final judgments and do not require a detailed essay. However, they must satisfy the minimum requirement of coherence and intelligibility. The abandonment of this aspect of the appeal requires no elaboration.

DECISION

7. I dismiss the appeal and affirm the decision of the FtT.

THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Date: 29 September 2016