Tribunal decisions

The decision

In the Upper Tribunal (Immigration and Asylum Chamber)

JR/493/2016
Heard at Field House
On 13 October 2017

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

Before

UPPER TRIBUNAL JUDGE KEKI?

Between

The Queen on the Application of

SOFIA [M]
Applicant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Application for judicial review: substantive decision

Having considered all documents lodged and having heard the parties' respective representatives, Mr M Symes of Counsel, instructed by Sky Solicitors, on behalf of the Applicant and Mr W Irwin of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 13 October 2017.

Decision: the application for judicial review is refused

JUDGMENT
1. This is an application for judicial review, filed on 21 January 2016, with permission granted on 13 December 2016 by Parker LJ and remitted by consent to the Upper Tribunal on 3 April 2017. The application for permission had been previously refused on the papers by Judge Jacobs on 1 April 2016.
2. The challenge is in respect of the respondent's decision, on 27 October 2015, to refuse the applicant's application for indefinite leave to remain under the Tier 1 route and to maintain that decision upon administrative review on 18 December 2015.

Background
3. The applicant, a Pakistani national born on 24 April 1978, entered the UK as a Tier 1 (general) Migrant on 9 July 2009 with leave until 13 May 2012. She was accompanied by three dependants: her husband, [M S] (DOB: 10 January 1978) and their two daughters, [Z1] and [Z2] (born respectively on 12 January 2005 and 20 February 2009). A third child, [W], was born in the UK on 26 May 2010.
4. On 8 October 2010, the applicant left the UK to travel to Pakistan to visit her sick grandmother. Her young son accompanied her on an emergency travel document issued by the Pakistani authorities. Although it is maintained for the applicant that the remaining children stayed in the UK with their father during her absence (AB:11 and grounds to the Court of Appeal at 17 and 26), the evidence demonstrates that, in fact, both travelled with her to and from Pakistan (AB: 53-58). Her husband also accompanied her to Pakistan but appears only to have stayed until 23 November 2010 (AB:47-48).
5. On 6 May 2011, the applicant applied on her son's behalf for entry clearance. This was refused on 23 May 2011. On 6 July 2011, another application/request for reconsideration was made (see paragraph 31 below for details). This time it was successful and entry clearance was granted on 13 July 2011. On 23 August 2011, the applicant returned to the UK with her three children.
6. On 10 May 2012, the applicant sought further Tier 1 leave with her dependants. This was refused on 2 August 2012. The applicant appealed. On 14 November 2012 her appeal was allowed and on 1 July 2013 she was granted leave until 1 July 2015. I have not seen any papers relating to that refusal or to the appeal.
7. On 25 June 2015, the applicant sought indefinite leave to remain. The refusal of her application has led to these proceedings. Her dependants have not been included in this claim.
8. The respondent refused the application under paragraph 245CD(c) of HC395 (as amended). She found that the applicant had not shown a continuous five-year period of lawful residence as she had been absent from the UK for 318 days which was in excess of the permissible period of absence of 180 days (under paragraph 245AAA(a)(i).
9. The applicant requested that discretion be exercised in her favour. She explained that her absence was due to the illness and death of her grandmother, the illness of her father and the processes of obtaining a passport and entry clearance for her son. In her administrative review application, another reason was added. It was maintained that she had to wait to build up funds to meet the maintenance requirements for entry clearance.

The Hearing
10. The hearing proceeded on 13 October 2017 when I heard submissions from the parties on their respective cases.
11. Reliance was placed by the applicant on the judgment of EK (Ivory Coast) [2014] EWCA Civ 1517.
12. Mr Symes relied on his skeleton argument. He submitted that the applicant had returned to Pakistan on 8 October 2010 with her young son and her delayed return was caused by several factors. Her grandmother had been ill and passed away in November 2010. She then had to apply for a passport for her son who had travelled on an Emergency Travel Document. Following on from my enquiries, Mr Symes took instructions from the applicant and stated that the application process for the passport had commenced "at the end of November 2010". The applicant then applied for entry clearance for her son in May 2011 which was eventually granted. Her father was also seriously ill but, nevertheless, she travelled back to the UK on 23 August 2011. In her administrative review application, a further reason was raised; that she had to show adequate funds for a period of 90 days prior to the making of an entry clearance application. The applicant tried to make an application for entry clearance for her son in March 2011 but the earliest available appointment had been in May 2011.
13. Mr Symes submitted that the respondent's guidance was not specifically referred to in the decision letter. An exceptional circumstance that could be taken into account by the respondent was the serious illness of a close relative. Mr Symes submitted that the applicant's father must have been very ill, given that he passed away some weeks after her return to the UK. All the factors which delayed her return were out of her control. Reliance was placed on EK (Ivory Coast).
14. Whilst Mr Symes accepted that the arguments on the best interests of the applicant's children were only made during the administrative review process, he submitted that they had been mentioned earlier and letters from their school had been submitted. He submitted that as Tier 1 was a route to settlement, it was obvious that the applicant would encourage her children to integrate into British society. Mr Symes submitted that the respondent's treatment of the welfare of the children was generic. It had been in her son's best interests to travel to Pakistan with her because he was so young but the bureaucracy necessitated by his travel back had caused much of the delay. There was enough in the evidence to show that the respondent acted unlawfully and had failed to engage with all the evidence.
15. Mr Irwin responded. He submitted that according to the law, the applicant was required to spend a requisite amount of time in the UK and that no more than an absence of 180 days was permitted in any 12-month period of the five years leading up to the date of the application. In accordance with the guidance, there were exceptions to the rule but the test was a high one and the examples given were of serious illnesses or natural disasters such as volcanic eruptions. He questioned whether the refusal of the respondent to exercise her discretion was irrational in the Wednesbury sense on the basis of what had been initially put in the application. The three matters raised at that time were the grandmother's illness/death, the child's passport and entry clearance and the applicant's father's illness. All these issues were comprehensively dealt with in the decision letter which identified the discretion to be exercised, summarised the facts put forward and provided an explanation as to why the application was rejected.
16. Mr Irwin submitted that it had never previously been mentioned that the passport had only been sought at the end of November. The applicant had, however, been aware that this needed to be done and she should not have delayed in making the application for the document. With regard to the delay in obtaining entry clearance, Mr Irwin pointed out that by the date of the application the applicant was already outside the permitted period of absence. With regard to the father's illness, Mr Irwin submitted that the death certificate stated that there had been a three-day illness and there was no medical evidence to confirm a lengthy period of serious illness or the need for the applicant to be there to care for him. Moreover, her return undermined the claim that her presence was required. He submitted that the respondent rationally decided the application and refused to exercise her discretion.
17. With respect to the administrative review process, Mr Irwin submitted that this was designed to correct any case working errors and was not an opportunity to provide new information or evidence. He relied on Appendix AR of the Immigration Rules. He submitted that the respondent had taken account of the new arguments made although she had not been obliged to. She also undertook a consideration of the best interests of the children under s.55 although no human rights claim had been made. Her decision was wholly rational and her conclusion that the applicant's circumstances were not compelling within the meaning of the guidance was unarguably one that was open to her on the available evidence.
18. Mr Irwin submitted that the applicant was already aware when she left the UK that her son would need a passport and entry clearance and that she would need to show evidence of funds. She had failed to provide any evidence that her funds had been depleted by her journey and absence. Further, her grandmother passed away in November 2010, long before an application for entry clearance had been made. Whilst it was accepted that an appointment was required in order to make an application, there was no documentary evidence to show that earlier attempts had been made. The failure to carry out bureaucratic tasks was, therefore, the applicant's fault.
19. In reply, Mr Symes submitted that the passport application was made within a short time of the grandmother's death. He submitted it was inevitable that the applicant would have funding issues as she left her business for an extended period. He referred me to a doctor's letter which confirmed that the applicant's father had been under severe stress after his mother passed away and he submitted that showed the father had been sufficiently ill to require the applicant's presence. If it had not been for the six-week delay in getting an entry clearance appointment, the period of absence would have been less than 180 days. The guidance should be applied responsibly and the delay in getting an appointment should have been taken into account. EK (at paragraph 38) was applicable as the delay was due to the respondent's procedures. When granting the application, the permission judge expressed a view that there was a good reason for the delay.
20. Both parties made submissions on costs and I then reserved my decision.

Analysis and conclusions
21. Having taken full account of the evidence and the submissions made, I reach the following conclusions.
22. The basis for the respondent's refusal was that the applicant had not met the requirement set out in paragraphs 245CD and 245AAA (a)(i) of the Immigration Rules that she must spend five continuous years resident in the UK prior to her application for indefinite leave to remain and that she should not spend more than 180 days outside the UK in any one year period. Paragraph 245CD(j) provides that specified documents in 245CD-SD must be provided to evidence the reason(s) for absence. These documents must include a personal letter from the applicant explaining the reasons for the absence and original documents in support. The respondent's guidance: Guidance - ILR - calculating continuous period in the UK V.12.0 includes the provision that ILR may be granted in cases where the applicant has been absent in excess of the permitted period where there is evidence of "serious and compelling reasons" for the excessive absence.
23. As the application for indefinite leave to remain was made on 25 June 2015, the five-year period commenced on 25 June 2010. The applicant was outside the UK for 318 days between 8 October 2010 and 23 August 2011 but that period fell across two separate 12-month periods. The period with the excessive absence was June 2010 - June 2011 and the applicant spent 259 days away from the UK during that time. The 180-day period of permissible absence ended on 6 April 2011 (the trigger date). Fifty- nine days were spent away over the following 12-month period.
24. It is accepted by the respondent that a relative's serious illness is capable of amounting to an exceptional reason for absence but it is a matter for the exercise of discretion. Other examples of serious or compelling reasons for an absence are also set out but none of these apply to the applicant's circumstances.
25. I find no merit in the complaint that the respondent failed to refer to her guidance in her decision letter. There is no obligation on the respondent to specify the guidance being considered and applied. It is sufficient, in my view, that she was cognisant of the fact that she had a discretion and that she considered all the facts and evidence when deciding whether or not to exercise it.
26. I now turn to the facts and evidence before the respondent when she made her decision, bearing in mind the trigger date. The applicant's grandmother was said to have been seriously ill and that illness prompted the applicant's visit. There is no evidence of the illness in the papers. She is said to have passed away on 25 November 2010 and a death certificate is contained in the bundle. Although the death was not registered until 23 January 2012, which is when the certificate was issued, the respondent has not disputed its contents. The certificate, however, refers to the period of illness as 15 days. That would mean it commenced on or around 10 November 2010 which does not accord with the applicant's claim of having had to travel back on 8 October 2010 because her grandmother was seriously ill. However, the respondent has not sought to dispute the period of illness and both the illness and the death were considered in the decision letter (AB:18-19). The skeleton argument is wrong to maintain (at paragraph 15) that this was discounted.
27. The applicant also maintained that she was delayed by her father's illness and subsequent death. The respondent has taken issue with this. Firstly, the death occurred after the applicant's return to the UK so it could not have delayed her in any way and it is misleading to argue otherwise (AB:10 and skeleton argument at 16). Secondly, although she claimed that her father's condition meant she had to stay on in Pakistan to look after him, his death certificate suggests that he had been ill for just three days preceding his death on 3 September 2011. I have been taken by Mr Symes to a letter from a doctor in support of his submissions on this point however that is dated 6 April 2015 and only supports the contents of the death certificate as it states that he was admitted to hospital "in September". I accept that the letter also states that Mr Majeed had heart conditions for which he received treatment in 1990 and 2005 (other medical evidence also supports the claim of treatment in 2005), but there is no suggestion that he had any ongoing issues. I also accept that the letter maintains that Mr Majeed was under severe stress after his mother's death; but this again, is not a serious illness. I accept that the applicant accompanied her father to the doctor during his period of stress but given that there were many other family members there to care after him, including her mother and other siblings, the evidence does not demonstrate that the applicant's presence was vital. I do not accept Mr Symes' submission that Mr Majeed's death in September 2011 is evidence that he must have been seriously ill during the applicant's stay. Deaths can occur suddenly or after short illnesses just as often as after prolonged periods of sickness. Having taken the applicant's father's circumstances into account, the respondent's conclusion that this was not a compelling reason for the exercise of discretion was not irrational.
28. The other factors put forward by the applicant were also considered by the respondent. I take first, the issue of the son's passport. This was issued on 21 January 2011. There is no independent evidence at all in support of the claims made in this respect by the applicant and that is a significant failing on her part. There is no evidence to show when the application was first made or whether it was followed up if there was a delay. Given that [Z2]'s passport was issued on 9 March 2009 just days after her birth, there is no apparent reason why the issue of [W]'s passport should have taken so much longer. It would have been helpful had documentary evidence relating to the date of the application and any other correspondence with the Pakistani authorities been provided. Even if the application was made at the end of November 2010, as is claimed, that is some seven weeks after arrival in Pakistan and there are no reasons offered for why an application was not made earlier. Mr Symes argues that the applicant was busy with sick relatives but even if that was the case, her husband was with her until the end of November and he could have lodged an application for their son knowing that a passport would be required.
29. There is also no documentary evidence to support the applicant's claim that attempts were made to obtain an earlier entry clearance appointment, nothing to show when the first approach was made and nothing to confirm the claim that no appointments were available until 11 May 2011. It is not known whether the applicant explained her predicament to the British authorities.
30. The evidence shows that entry clearance was initially refused on 23 May 2011. A copy of the reasons for refusal are not included in the papers but, as pointed out by the applicant, the respondent acknowledges the visa was erroneously refused in her decision letter. By that point, however, the applicant had already passed the trigger date and had spent 226 days outside the UK.
31. The grounds and various letters from representatives in the bundle are confusing as to what happened next. I am unclear whether another application for entry clearance was made (AB:65 and grounds for permission to the Court of Appeal at 17) or whether reconsideration was sought (A's skeleton argument). The letter of 1 July 2011 from the applicant's solicitors is also unclear. It refers to the errors made by the ECO but then appears to include an application form for entry clearance (AB:68-69). Whichever it is, however, there is no explanation for why the applicant waited from the date of the refusal on 23 May 2011 until 1 July 2011 to make the next application/request for reconsideration.
32. The funding issue was not raised anywhere in the papers until the administrative review. Again, this argument is plagued by an absence of documentary evidence. There is no evidence to show that the applicant's funds were depleted by her visit, nor is there evidence to show that they were built up again and no explanation as to how funds were obtained if the applicant was in Pakistan and not working in her business. No details are provided as to what the journey to Pakistan cost or whether further funds were required during the applicant's stay notwithstanding the fact that she stated she was staying with her family. Had this been a reason for the delay in making an entry clearance application, it is reasonable to expect that it would have been mentioned to the respondent when the reasons for the excessive absence were first put forward.
33. It is incorrect as maintained in the skeleton argument (at 16) that the applicant returned to the UK "with such dispatch" after the issue of her son's visa, that she was not present when her father passed away. The evidence is that there was a further period of delay between the issue of entry clearance on 13 July 2011 and the family's return on 23 August 2011. The reason for this is not addressed anywhere in the evidence.
34. The applicant also argues that s.55 was not properly considered. I have seen the application for indefinite leave to remain and it makes no reference at all to the best interests of the children. Nor is there anything to even remotely suggest that leave on human rights grounds was sought. The respondent nevertheless undertook an assessment of the best interests of the children on the extremely limited information she had (AB: 20-21). She cannot be criticised for that. A further assessment was undertaken during the course of the administrative review process (AB:26). Contrary to Mr Symes' submissions, the documents in the bundle from the children's school were not initially placed before the respondent. Certainly, the arguments now made with regard to the schooling of the children are undermined by the fact that both girls missed several months of school whilst they were in Pakistan. No other reasons are put forward for why their welfare would be adversely affected by a return to Pakistan with their parents and where they have a large extended family.
35. I conclude, therefore, that there have been significant shortcomings in the documentary evidence supplied by the applicant to support her case. The respondent properly considered the evidence and the reasons put forward by the applicant to explain her lengthy absence from the UK, that she had her policy in mind when doing so and that she applied it flexibly and not restrictively as is claimed. This is demonstrated by her willingness to consider photocopied documentary evidence and information submitted for the first time in the administrative review process. There was no irrationality or other public law error in the respondent's conclusion that there were no serious or compelling reasons to waive the requirement in the rules for five continuous years' residence with less than 180 days of absence over a 12-month period. I take note of Mr Symes' submission that the judge who granted permission expressed a view on the case however that was limited to it being arguable and was not a finding on the substantive issues.

Order
36. I order that the judicial review application be refused.

Permission to appeal
37. Permission to appeal to the Court of Appeal is refused. There was no unfairness to the applicant and the Tribunal's consideration of the claim was not based on irrelevancies as can be seen from the above. The applicant accepts that she overstayed the permitted period during a 12-month period and the precise number of days stayed is immaterial given that she was well over the maximum allowed. There were no striking features as is argued in the grounds. This was not a human rights application but the respondent nevertheless undertook a s.55 assessment on the limited evidence submitted to her. The grounds (at paragraph 4) misrepresent the Tribunal's conclusions.

Costs
38. The applicant shall pay the respondent's reasonable costs, to be assessed if not agreed.

Signed:

Dr R Keki?
Upper Tribunal Judge
Date of preparation: 26 October 2017
Handed down on: 6 November 2017

Applicant's solicitors:
Respondent's solicitors:
Home Office Ref:
Decision(s) sent to above parties on:
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Notification of appeal rights

A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.

A party may appeal against such a decision to the Court of Appeal on a question of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant's notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal's decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3.