Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA416462014

At Field House

Decision and Reasons Promulgated

on 6th June 2016
on 20th June 2016

Before
DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY
Between
MR.MORGEN CHIRONGOMA
(NO ANONYMITY DIRECTION MADE)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

No application was made for an anonymity order and there is no apparent need.
Representation:
For the Appellant: Ms.G.Peterson, instructed by CK Solicitors.
For the Respondent: Mr P.Duffy, Home Office Presenting Officer.
DECISION AND REASONS
Introduction

1. Although it is the respondent who is appealing I will continue to refer the parties as they were in the First-tier Tribunal for the sake of convenience.

2. The appellant is a national of Zimbabwe. He came to the United Kingdom as a student in January 2000 at the age of 23. He obtained various renewals until 31 August 2009. A further in time application was refused on 13 October 2009.He unsuccessfully appealed and became appeal rights exhausted on 16 February 2010.

3. On 28 September 2012 he submitted an application for indefinite leave to remain on the basis he had resided in the United Kingdom for 10 years lawfully. This was considered under rule 276B along with a consideration of his private life under rule 276ADE.

4. His application was refused in a decision of 12th June 2013, subsequently withdrawn. The refusal was maintained in a September 2014 decision.

5. The respondent accepted that he had 10 years continuous lawful residence. However, he did not satisfy 276B (v) which requires that an applicant be not in the United Kingdom in breach of immigration laws beyond the 28-day disregard. His application was submitted two years and seven months after he became appeal rights exhausted. By the time of decision had been an overstayer for almost 4 years.

6. Regarding paragraph 276ADE he had not lived in the United Kingdom 20 years and he could reintegrate into life in Zimbabwe.

The First tier Tribunal.

7. His appeal was heard by Judge of the First-Tier Remington on 17 September 2015. The appeal was allowed under both the immigration rules and on freestanding human rights grounds. At paragraph 34 the judge felt it would be extremely difficult for the appellant to reintegrate into Zimbabwe. He had lived in the United Kingdom nearly 16 years and had no remaining ties in Zimbabwe. His father died in 2002, his mother had sold the family home and they were not in contact. His friends had left the country. The judge referred to the political situation in Zimbabwe, stating the appellant had candidly raised the question of his political affiliation and did not know who to trust.

8. In seeking permission to appeal the respondent submitted that the judge's reasoning for concluding he would face difficulties reintegrating was inadequate. It was not clear what his political affiliation was but even assuming he was as an MDC supporter, there was the possibility of relocation.

9. It was also submitted that the judge erred in referring to delay on the part of the respondent and citing EB (Kosova) for allowing the appeal under article 8. It was submitted that the question of delay was not a feature as the appellant had never made a valid in time application in respect of paragraph 276B. It was accepted that had he done so he may well have been successful but the reality was he had not. It was submitted that the judge in allowing the appeal under article 8 was effectively using it as a dispensing power.

10. Permission to appeal was granted on the basis it was not clear from the decision why the judge found he could not return to live in Zimbabwe. He had lived there for more than half his life and it was not clear what his political affiliations were. Arguably the judge erred in citing EB (Kosovo) in relation to the article 8 assessment if the appellant had never made an in time application on the basis of 10 years lawful residence.

The Upper Tribunal.

11. Mr Duffy submitted the judge took the wrong approach when considering paragraph 276 ADE (vi) and obstacles to the appellant's return to Zimbabwe by treating it as if it were an asylum issue. If the appellant was an MDC supporter he submitted he could live in another part of the country. Furthermore, he had been out of the country for over 10 years.

12. Regarding paragraph 276B, whilst the appellant had been in the United Kingdom lawfully for 10 years he did not apply during that time. He submitted the rationale in EB (Kosovo) was that: (i) the longer a person is in the country the greater opportunity to establish article 8 rights: (ii) with the passage of time relationships can be formed and the sense of precariousness reduced (iii) delay may demonstrate systemic issues .He submitted these factors did not justify the outcome.

13. Ms.G.Peterson's argument was that paragraph 276 B as originally drafted meant that once 10 years continuous lawful residence had been built up there was no limit on the length of time afterwards when the person can apply to benefit. In this regard she referred to the respondent's Guidance valid from 28 August 2012. It states:

Once an applicant has built up a period of 10 years continuous lawful residence, there is no limit on the length of time afterwards that they can apply. This means they could leave the UK, re-enter and apply for settlement based on a 10-year period of continuous lawful residence they built up in the past.

14. She argued that on the chronology there had been earlier applications made by the appellant and the ten-year rule as it then existed had not been applied. Whilst Judge Remington in dealing with the immigration rules had to apply the law as it existed at the time of the decision under appeal the delay and failure to deal with earlier applications adequately where factors going to the article 8 assessment.

15. This point was canvassed before First-Tier Judge Remington before whom Ms.G.Peterson appeared. The respondent was not represented. The chronology was set out. On 20 August 2009 there was an application for further leave to remain as a student. This was refused on 13 October 2009 on maintenance ground. The tribunal on 13 January 2010 affirmed the refusal. On 9 February 2010 the appellant applied to the Administrative Court for reconsideration. That court requested a copy of the original application from the appellant and on the 26 February 2010 the appellant wrote to the respondent for a copy of his application. He was subsequently interviewed on 27 April 2010. On 29 November 2011 he made application for leave to remain outside the rules. This appears to have been refused on 18 June 2012. On 21 June 2012 the appellant's representatives wrote to the respondent pointing out the ten-year guidance set out above.

16. It was argued that the ten-year rule as then in force should have been identified in relation to the original application of 2009 and subsequent appeal in 2010. Similarly, it was not considered when the application outside the rules was made in November 2011 and was not referred to in the refusal decision relating to the application.

17. First-tier Judge Remington stated:

21. What makes this case exceptional is the failure to recognise that he was entitled to leave at the relevant time and despite the appellant's continual efforts to argue his case the failure to recognise that he had attempted to have this matter considered, the failure to deal with the long residence claim and the delay in response to the long residence claim.

18. At paragraph 19 First-tier Judge Remington pointed out that the applicable immigration rules in relation to the decision of 24 September 2014 were those in force at the time of decision. Under those rules a claim under paragraph 276B would fail because of the appellant's overstaying. At paragraph 35 the judge acknowledge that article 8 is not a general dispensing power. It is apparent the judge was significantly influenced by the fact that the appellant would most likely have succeeded under the ten-year route had this been dealt with in relation to his earlier applications.

Consideration

19. The decision sets out the chronology and it is apparent on close reading that the judge was not simply applying article 8 because the appellant would most likely have succeeded under the rules at the time but for a failure to apply. Rather, the judge is indicating that there were earlier applications predating the change in the rules and from these it should have been apparent to the respondent he met the rule on long residence.

20. The judge at paragraph 39 refers to the appellant having established a strong private life in United Kingdom. In the following paragraphs the judge clearly sets out the section 117 factors relevant to the assessment.

21. It may be that because there was no presenting officer in the First-tier tribunal that the delay point was not fully appreciated when leave to appeal was sought. Having been referred to the 2012 guidance Mr Duffy did not demur on the point.

22. It is my conclusion that when the arguments before Judge Remington are properly analysed the judge was entitled to consider article 8 and the conclusion in the appellant's favour is sustainable.

23. I do find there was a material error of law in allowing the appeal under 276 ADE.The factors set out in paragraph 34 are not adequate to justify the conclusion that he could not reintegrate. The recorded findings in this regard are inadequate. It is clear that the focus was upon his historical rights under paragraph 276 B; the respondent's actions or inaction and the engagement of article 8.

Decision.

There is a material error of law in the decision of Judge Remington in relation to how paragraph 276 ADE was dealt with. I remake the decision allowing Mr Chirongoma's appeal on human rights grounds only and not under the immigration rules.

Deputy Upper Tribunal Judge Farrelly