Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/45332/2014
IA/45348/2014
IA/45354/2014
IA/45358/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 February 2017
On 6 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

MAria victoria pabustan
mike arlan latin pabustan
marielle ann latina pabustan
nikko latina pabustan
(anonymity direction NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms C. Fielden, Counsel instructed by Lester Dominic Solicitors
For the Respondent: Ms Z. Ahmad, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Appellants against the decision of First-tier Tribunal Judge Hussain, promulgated on 25 August 2016, in which he dismissed the Appellants’ appeals against the Secretary of State’s decision to refuse to an extension of leave to remain.

2. Permission to appeal was granted as follows:

“The grounds argue that the Judge failed to appreciate the Secretary of State had to apply the policy relevant to the grant of DL. The question was whether the First Appellant was applying for DLR on the same basis as before and this had been stated to enable the children to complete their education. DLR was only granted in blocks of 3 which created the difficulty for the Third Appellant and under the policy and the basis of grant DLR should have been granted.

Given that the original grant was on the basis of an overlap in the children’s level of education it is arguable, given the quotation in paragraph 3 of the grounds, that the Judge erred.”

3. The First and Fourth Appellants attended the hearing. I heard submissions from both representatives, following which I reserved my decision.

Submissions

4. Ms Fielden relied on her brief written submissions. The only way to challenge the exercise of discretion was on the ground that it was not in accordance with the applicable policy. Any decision of the Respondent had to comply with her own policy.

5. She submitted that the first grant of discretionary leave was before 9 July 2012. The “family unit” had been granted discretionary leave for the “children” to complete their studies. The Appellants should continue to be dealt with under the policy which was in force before 9 July 2012 if they applied for further discretionary leave on the same basis as they had originally been granted leave.

6. In renewing the discretionary leave, the “family unit” had one child who needed to complete his education. The two older children had completed their education. The judge in the First-tier Tribunal had not recognised the error made by the Respondent in not complying with her policy. The original grant had been for the family unit so that the children’s studies could be completed.

7. In response Ms Ahmad relied on the Rule 24 response. She referred me to the case of Virk [2013] EWCA Civ 652, paragraph 23. The judge had no jurisdiction to consider whether the Respondent’s discretion should have been exercised differently. The only means of challenge was by way of judicial review. Paragraphs [16] to [18] set out the law correctly. It was not open to the judge to consider whether or not discretionary leave should have been granted to the family unit.

8. In response Ms Fielden submitted that she was not saying that it was open to challenge the Respondent’s decision on the ground that discretion should have been exercised differently. The judge should have found that discretion should have been exercised in accordance with the policy. He should have found that the Respondent had not taken into account her own policy and should have recognised that discretion had not been exercised in accordance with the law.

Error of Law Decision

9. I have carefully considered the part of the decision which deals with the discretionary leave point, and the jurisdiction of the First-tier Tribunal [15] to [18]. I find that the judge correctly set out the position in paragraph [16]. The First-tier Tribunal had no jurisdiction to consider whether the Appellants should have been granted a further period of extension. He sets out the power of the Tribunal which is “to review and remake a decision if it is not in accordance with the immigration rules or the human right legislation”.

10. The Respondent’s notices of immigration decisions are dated 3 November 2014. In these the Respondent set out the grounds on which the Appellants could appeal. As this decision was made before the new appeal provisions came into force, the decision states that the Appellants could appeal against the decision as not being in accordance with the law.

11. The Appellants appealed against the decisions on 11 November 2014. The judge correctly identifies that the applications were made before changes to section 84 of the 2002 Act came into force. He therefore finds that “the most that the appellant can expect from the present tribunal is a remittal for the Secretary of State to consider the applications under the transitional provisions”. The judge identified that he was able to remit the decision to the Secretary of State.

12. I find that the judge correctly identified that the Tribunal could not consider whether the Appellants should have been granted a further period of extension. He identified that the most that he could do was remit the applications to the Respondent to consider them under the transitional provisions. As the applications and appeals were made before the changes to section 84 of the 2002 Act came into force, it was still open to the judge to find that the decision was not in accordance with the law and to remit it to the Respondent for a lawful decision to be made. The Respondent had acknowledged in the notice of decision that an appeal could be brought on the grounds that the decision was “otherwise not in accordance with the law”. I therefore find that the judge correctly set out the law, and the option available to him.

13. In paragraphs 17 and 18 the judge states:

“However, I find that there is no merit in so doing because the terms of the transitional provision is to grant further extension if the basis of the original grant still persists. The refusal letter makes clear that the original grant was to enable the second and third appellants to complete their GCSEs which is no longer the case.

In summary, I therefore conclude that it is not open to the present tribunal to review the merit of the refusal to grant discretionary leave and in any event for reasons given above, a remittal of this issue to the Secretary of State would not be justified.”

14. While it was not expressly submitted before me that there was an error in the judge’s summary of the reasons for refusal letter in paragraph [17], I find that the judge does not refer to the original grants of leave which were before him. Had he done so, he would have seen that the wording in the notices of decision is not an accurate reflection of the grants of leave.

15. I have considered the grant as set out in the first Appellant’s Supplementary Decision Letter of 21 June 2011. It states:

“It is noted that your eldest son has commenced his GCES (sic) studies and that upon the completion of his studies your daughter will have commenced her GCSE studies. For this reason and given the United Kingdom’s obligation’s (sic) under the BICA (sic) 2009 section 55 it is considered both appropriate and proportionate to grant your family unit 3 years discretionary leave in order for your children to complete their studies.”

16. In the Supplementary Decision letters relating to Mike and Marielle it states:

“It is considered, as stated in Mrs Maria Pabustans (sic) Supplementary decision letter that given the United Kingdom’s obligation’s (sic) under the BICA (sic) 2009 section 55 and your circumstances it is considered both appropriate and proportionate to grant your family unit 3 years discretionary leave in order for your children to complete their studies.”

17. While in the first Appellant’s letter there is reference to the two older children, I find that the grant of leave is made to the “family unit ….. in order for your children to complete their studies.” I find that the Respondent was aware that there was a third child, the fourth Appellant. She does not refer to him expressly, but she does not restrict her grant of leave in order that the two older children can complete their education, but instead makes a grant of leave to the “family unit” so that “your children” can complete their studies. Indeed in the supplementary decision letters relating to the older children, there is no reference to the particular stages of education which they have reached. Instead there is a grant of leave to the “family unit” in order for “your children to complete their studies”.

18. I find that the judge relied on the relied on the wording set out in the reasons for refusal letter, which did not accurately reflect the wording of the grant of leave. I find that the Supplementary Decision Letters were in the Respondent’s bundle, and therefore before him. I find that he failed to consider the wording in the original letters. Had he done so, given that he had correctly set out the law in paragraph [16], he would have realised that the Respondent had failed to apply her own policy. I find the judge erred in failing correctly to consider the basis on which leave had originally been granted.

19. I find that the Respondent’s decisions were not in accordance with the law as she failed to follow her own policy.

Notice of decision

20. I find that the decision involves the making of a material error of law and I set the decision aside.

21. I remake the decision allowing the appeals as the Respondent’s decisions were not in accordance with the law.

22. The applications are remitted to the Respondent for lawful decisions to be made.

No anonymity direction is made.

Signed Date 3 March 2017

Deputy Upper Tribunal Judge Chamberlain

TO THE RESPONDENT
FEE AWARD

I have allowed the appeals and a fee has been paid. The Respondent’s decisions were not in accordance with the law for failure to follow her own policy. In the circumstances I make a fee award for the entire fee paid.

Signed Date 3 March 2017

Deputy Upper Tribunal Judge Chamberlain