Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: JR/8946/2017

THE IMMIGRATION ACTS

Heard at Field House
Judgment handed down
On 8 August 2017

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Before

UPPER TRIBUNAL JUDGE JORDAN

Between

R (on the application of Talha Rahim)
Applicant
and

The Secretary Of State For The Home Department
Respondent

Representation:
For the appellant: Mr Z. Malik of Counsel, instructed by SZ Solicitors
For the respondent: Mr J. Anderson of Counsel, instructed by the Government Legal Department

JUDGMENT

Introduction and immigration history

1. The applicant is a citizen of Pakistan who was born on 7 June 1972. He entered the United Kingdom on 8 September 2004 when he was 32 years old with entry clearance as a student. His leave to remain as a student and as a Post-Study Work (Migrant) was successively extended until 23 November 2013. He then made and in time application for further leave to remain either as a Tier 4 (General) Migrant on 21 November 2013 (according to the applicant) , or as a student (according to the respondent's refusal letter). This further application was refused on 2 June 2014. On the following day the applicant was served with papers informing him of his immigration status and asserting that he had earlier obtained leave to remain by deception having, it is claimed, submitted a TOEIC certificate which the Educational Testing Service had cancelled as a result of their checks which had led them to believe that it had been obtained by use of a proxy test- taker.

2. The applicant challenged this contention by way of judicial review proceedings on 8 July 2014. Those proceedings were unsuccessful. The refusal of 18 January 2016 was either the refusal of permission or the refusal of the substantive application. The application to seek permission to appeal to the Court of Appeal was refused on 8 February 2016.

3. Accordingly, the applicant's challenge to the lawfulness of the respondent's decision to refuse further leave to remain has been tested already, albeit in the context of judicial review proceedings, and the applicant's challenge as to its lawfulness has been rejected, even as far as the Court of Appeal.

4. For these reasons, although the applicant had leave to remain until 22 November 2013, he fell short of a period of 10 years lawful leave. Although his in-time application for further leave to remain operated to provide the applicant with s.3C continuation leave whilst it remained under consideration, the application was ultimately unsuccessful in June 2014 and the challenge to the refusal was rejected. The effect of this is that the applicant has never acquired 10 years lawful residence which required him to establish a lawful presence until 8 September 2014.

The application for further leave and the decision to refuse it

5. In due course the applicant applied for further leave to remain on the basis of a protected family and private life. The application was refused by decision made on 1 August 2016. A number of reasons were relied upon by the respondent. The decision-maker first approached the application by reference to Appendix FM and paragraph 276ADE(1).

6. As the applicant did not assert that he had a partner or any children in the United Kingdom, the decision-maker properly confined his consideration to a protected private life.

7. The respondent recited in summary form the immigration history that I have set out above, relying upon information from ETS to the effect that the TOIEC certificate that he had earlier used to obtain leave had been cancelled as a result of the deception. As a result of the deception that the decision-maker claimed had taken place, the application was refused on suitability grounds.

8. Consideration was then given to whether the applicant met the requirements of paragraphs 276ADE (1) and concluded that he did not. No challenge is made to that finding.

9. The decision-maker then went on to consider whether there were exceptional circumstances outside the application of paragraph 276ADE(1). He noted the immigration history to which I have already referred and recited that the applicant (who had by then been in the United Kingdom for 11 years) would have established a private life but had provided no significant evidence that the nature, scope and content of his private life rendered removal unlawful or disproportionate. The decision noted that the applicant had his parents and siblings in Pakistan. Given that he had entered the United Kingdom at the age of 32, the decision-maker concluded that there were no exceptional circumstances preventing the applicant's return.

The nature of the present proceedings

10. It was for these reasons that the decision-maker certified the claim as 'clearly unfounded' under s. 94 (1) of the Nationality, Immigration and Asylum Act 2002. The applicant, of course, has a right of appeal against that decision but the right of appeal can only be exercised out-of-country.

11. These proceedings for judicial review are, therefore, restricted to a challenge to the certification the effect of which is to confine the applicant's right of appeal to an application to be made out-of-country. The issue before me is whether the decision-maker was lawfully entitled to determine that the Article 8 claim was clearly unfounded, namely, that it was bound to fail.

12. The challenge made to the respondent's decision making process in the grounds seeking judicial review relied upon the decision in SM and Qadir (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC). In essence, the grounds sought to establish the respondent was not lawfully entitled to rely upon the allegation of deception. Mr Malik, on behalf of the applicant accepted that these grounds no longer amounted to an arguable contention and abandoned them.

13. Instead, he sought to develop a different challenge which he made orally.

The, as yet unmade, application to amend the grounds

14. There is, of course, no criticism to be made against Mr Malik in his approaching the matter in this way. He had been instructed the day before. He submitted, however, that his Instructing Solicitors had only been approached by the applicant in the course of the previous Wednesday. Consequently, there was no application to amend the grounds. Whilst the grounds formulated by Mr Malik were clear and intelligible, they had not been reduced to writing. Mr Anderson, on behalf of the Secretary of State, did not assert that he could not answer the points made by Mr Malik in his remodelled case.

15. Mr Anderson submitted, however, that it was necessary for an application to amend to be made and that an applicant should not be in a better position by appearing at the hearing represented by counsel than he would be if an application had been made in due form and on payment of the appropriate fee and an explanation provided for the late application to amend the grounds.

16. Further, since the granting of permission by Deputy Upper Tribunal Judge Storey on 23 November 2016, a series of directions had been made both by him and in a further communication from the Tribunal dated 12 May 2017 which set out a series of requirements for the proper conduct of the substantive hearing. The applicant, of course, has not complied with them.

17. It goes without saying that if no written application had been made prior to the hearing to amend the grounds supported by draft grounds, the application would not have been permitted. There is no evidence of a suitable reason for the delay in applying to amend. Mr Malik spoke of the applicant being short of funds but this did not prevent him instructing solicitors and counsel late in the day. If he was able to instruct solicitors on Wednesday, there is no evidence to suggest that he could not have done so earlier. These are compelling, not to say overwhelming, reasons for refusing permission to pursue the applicant's radically amended case.

18. Nevertheless, out of deference to the arguments advanced by Mr Malik, in considering the (unmade) application to amend the grounds, I shall give consideration to the merits of the case that the applicant would now wish to advance.

The proper legal approach

19. In doing so, I shall be guided by the approach set out in the opinions of the House of Lords in ZT (Kosovo) v the Secretary of State for the Home Department [2009] UKHL 6. Relying on the Court of Appeal's decision in R (on the application of L) v Secretary of State for the Home Department [2003] EWCA Civ 25 at paragraphs 56 to 58 which were duly endorsed by Lord Phillips the approach to be adopted is to apply an objective test. It does not depend on the Home Secretary's view; rather, up on a criterion which a court can readily reapply once it has the materials which the Home Secretary had. The claim is either clearly unfounded or it is not. The Court of Appeal stated,

If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision-maker cannot conclude otherwise.

20. Lord Phillips continued in paragraph 23:

If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded? If the court concludes that the claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational.

21. Whilst there is plainly an argument as to whether the reviewing Tribunal can look at material that post-dates the decision in order to reach its own view on whether the First-tier Tribunal might properly conclude the claim is clearly unfounded, that issue is not material in the context of this appeal. All the material relied upon by the applicant in his submissions to me was before the Secretary of State. (The applicant's posts-decision statement is directed towards his taking the TOIEC test which, for our purposes, is not material.)

22. Mr Malik sought to enlarge the test by submitting that, since it is legitimate for different judicial decision-makers to reach different conclusions on the same material, the issue was not simply whether I considered the application to be clearly unfounded but whether there might be another judicial decision-maker who would reach a different but legitimate view. I consider that there is no need for this enlarged test as it was in contemplation both by the Court of Appeal and the House of Lords in the passages which I have set out. Those passages identify the principle that if, on at least one legitimate view of the facts or the law, the claim may succeed the claim will not be clearly unfounded. If any reasonable doubt exists as to whether the claim may succeed, then it is not clearly unfounded.

23. Mr Malik drew to my attention another significant element in an Article 8 claim in which an applicant seeks to assert that there are exceptional circumstances outside a strict application of Appendix FM and paragraph 276ADE(1). In doing so, he relied upon the judgment in the Supreme Court in R (on the application of Agyarko v Secretary of State for the Home Department [2017] UKSC 11 in which Lord Reed said in paragraph 60 that the Immigration Rules and any relevant Instructions cannot alter the requirement in Article 8 cases that the ultimate responsibility lies in striking a fair balance between the competing public and individual interests involved by a proper application of a proportionality test. The test of exceptionality does not import the requirement for some highly unusual feature over and above the test of proportionality. Instead, it simply means that there should be circumstances in which refusal would result in unjustifiably harsh consequences to the individual such that the refusal of the application would not be proportionate. So understood, the exceptional circumstances test is not incompatible with Article 8.

A consideration of the merits of the remodelled claim

24. Having set out what I consider to be the relevant case law, I turn to whether the applicant's claim based upon circumstances which fall outside the confines of Appendix FM and paragraph 276ADE(1) might, on any legitimate view of them, result in the applicant succeeding before a First-tier Tribunal Judge such that the claim will not be clearly unfounded. If I have my doubts, the claim cannot be clearly unfounded. If there is a realistic prospect of success, the Secretary of State's certification must be a unlawful.

25. Mr Malik's submission centres upon the applicant's immigration history. He submits that it was open to the applicant to establish by evidence, having entered the United Kingdom on 8 September 2004 and having been refused further to leave to remain as a student on 2 June 2014 on the basis of deception, that no proxy test taker was used. He submitted that the applicant was entitled on conventional judicial review lines to have his case assessed at its highest. Accordingly, he submitted that it was impossible to exclude the possibility that, if no proxy test taker had been used, he would have qualified under the 10 years lawful leave rule. Accordingly, his removal was disproportionate under Article 8.

26. I do not accept the proposition that it is possible to rewrite history as he has invited me to do. First, whilst the respondent's decision letter refers to the application for further leave to remain as a student, we are not able to say whether that application would have succeeded. (Similarly, as the applicant claims, if his application had been made as a Post-Study (General) Migrant.) We know that it was refused by reason of the applicant's deception. We do not, however, know whether the other requirements of the Rules were met. For the purpose of the decision made on 1 August 2016, it was only the allegation of deception that could be relied upon to refuse to the claim on suitability grounds. It was irrelevant to mention other grounds for refusal.

27. Secondly, whether the decision was factually right or wrong, it was a lawful decision made on 2 June 2014 at which point the applicant had less than 10 years lawful residence. We know that it was lawful because it was tested by way of judicial review which was refused in January 2016. We know the Upper Tribunal's refusal was justified because the applicant's attempt to appeal to the Court of Appeal was refused in February 2016.

28. There is no 'near-miss' principle whereby the benefits accruing to those who have 10 years lawful residence may also be enjoyed by somebody who has enjoyed something less than 10 years lawful residence on the basis that this is an exceptional circumstance. Furthermore, Mr Malik's attempts to re-write history do not amount to an exceptional circumstance. The history is as it is. It is not possible to treat the applicant's case on the basis that, if events had been different, the applicant would have succeeded. The applicant's immigration history is certain. What might have been is, inevitably, speculative. For these reasons, I am satisfied that the contention advanced by Mr Malik is bound to fail. Furthermore, in my duty to avoid confining the consideration to my own view of the facts, I am satisfied that no First-tier Tribunal Judge would conclude, even if the applicant makes out his case that no deception had been used, that the appellant would have established exceptional circumstances of the type applicable is such cases that would merit the grant of leave to remain under Article 8, notwithstanding his failure to meet the requirements of Appendix FM and paragraph 276ADE(1).

Conclusion

29. For these reasons, I refuse to grant permission to the applicant to amend his grounds of challenge.

30. I refuse the application for judicial review on the basis of the grounds originally advanced.

DECISION

1. Permission to amend the grounds is refused.
2. Judicial review is refused.

ANDREW JORDAN
JUDGE OF THE UPPER TRIBUNAL
8 August 2017