Tribunal decisions

The decision

IN THE UPPER TRIBUNAL

JR/4793/2016

Field House,
Breams Buildings
London
EC4A 1WR

30 March 2017

The QUEEN
(ON The application OF pernella darlington)
Applicant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Before

UPPER TRIBUNAL JUDGE peter lane

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For the Applicant: Mr E. Nicholson, Counsel, instructed by Igor & Co Solicitors.

For the Respondent: Mr Z. Malik, Counsel, instructed by the Government Legal Department.

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JUDGMENT
(13 July 2017)
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JUDGE peter lane:

A. Introduction
1. The applicant, a citizen of Trinidad and Tobago, born on 10 November 1972, seeks judicial review of the respondent's decision on 9 March 2016 to refuse the applicant's human rights claim and certify it as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002. Permission to bring judicial review proceedings was granted by the Upper Tribunal on 13 July 2016.
2. The applicant arrived in the United Kingdom on 19 April 2007, when she was aged 34. She came as a student, in which capacity she was granted further leave until 19 October 2011. On that day, the applicant applied for further leave to remain as a student. Following the refusal of that application, the applicant appealed to the First-tier Tribunal. On 23 March 2012, that Tribunal allowed the applicant's appeal on the limited basis that the applicant should be permitted a period of time to complete her volunteer activities and prepare to leave the United Kingdom.
3. Consequent upon the Tribunal's decision, on 3 September 2012, the respondent granted the applicant discretionary leave to remain until 29 September 2012.
4. Instead of leaving the United Kingdom, however, the applicant on 27 September 2012 made an application for further leave to remain, relying on Article 8.
5. The respondent rejected that application as invalid on 31 October 2012 on the ground that it was not unaccompanied by the specified application fee. A further application, lodged on 10 November 2012, was refused by the respondent on the basis that it had been made at a time when the applicant did not have leave to remain. Accordingly, the only decision which the respondent could make was to refuse to grant leave to remain (which did not carry a right of appeal under the 2002 Act, as it then stood) as opposed to refusing to vary leave to remain (which did carry such a right).
6. The applicant, nevertheless, filed a notice of appeal with the First-tier Tribunal. The matter came before First-tier Tribunal Judge Canavan (as she then was) on 11 February 2014. She found that, in accordance with the decision of the Upper Tribunal in Basnet (validity of application - respondent) [2012] UKUT 00113, the respondent had not established that the requisite application fee had been unable to be taken from the applicant's payment card account. Judge Canavan accordingly found that that application should have been treated as valid. This meant that the decision to refuse to grant leave to remain should, in fact, have been treated as a refusal to vary leave to remain.
7. In the event, Judge Canavan held that there was no valid appeal before her for a different reason. The applicant had not been served with an appealable immigration decision in accordance with the Immigration (Notices) Regulations 2003. Judge Canavan accordingly held that there was no valid appeal before the Tribunal.
8. Following further correspondence, on 12 August 2015, the respondent issued the applicant with a decision refusing her human rights claim and certifying it under section 94 of the 2002 Act. The applicant was subsequently detained, following which she issued judicial review proceedings. These resulted in an order from the Upper Tribunal, staying the removal of the applicant from the United Kingdom. The applicant was released from detention on 16 October 2015 and the judicial review claim was settled by a consent order, which provided that the respondent would reconsider her decision within three months.
9. It was as a result of this reconsideration that the respondent made the decision of 9 March 2016, which is the subject of the present challenge. Following the grant of permission to bring judicial review proceedings, the applicant did not pay the continuation fee. Her claim was, accordingly, struck out. On 24 August 2016, Upper Tribunal Gill ordered the claim to be reinstated, on condition that the fee was paid within ten working days. This occurred and the claim was, accordingly, reinstated.

B. The applicant's case
10. The case for the applicant is that she enjoys a private life in the United Kingdom, in stark contrast to the position that she would face if she were returned to Trinidad and Tobago. The applicant says that she was adopted one month after her birth by one Valerie Darlington. This lady suffered an accident when the applicant was 12 years old, as a result of which Ms Darlington Sr. lost almost all of her sight. The applicant had few friends in Trinidad and Tobago. They all now reside in the United Kingdom. She has no home in that country and no ties to it.
11. Conversely, the applicant has obtained a degree in tourism management, as a result her studies in the United Kingdom. She has also made several close friendships. The applicant says that as a result of incorrect information being passed by the respondent to her employer, concerning the applicant's inability legally to work in the United Kingdom, the applicant was unfairly dismissed by her employer. The applicant brought proceedings in the Employment Tribunal, which were settled by consent, on the basis that the employer paid the applicant what is said to be "a substantial payment". It appears that this payment was, in fact, made in respect of abuse the applicant said that she had suffered at work, owing to her gender and membership of an ethnic minority.
12. When the respondent made the certification decision, she had before her a number of letters from friends of the applicant. Catherine Korgba wrote on 21 January 2014 to say that she had shared a house with the applicant for the past three years. They had become friends. Ms Korgba regarded the applicant as a "caring, hardworking and thoughtful person, full of passion, warmth and compassion". She was also unselfish and had committed time to volunteering for various events and activities, including the 2012 Olympics.
13. Ms Korgba understood that the applicant's adopted mother died in 1999 and she had "no other real family or solid ties back in Trinidad and Tobago". As a result, Ms Korgba had introduced the applicant to her own family "in a bid to give her that sense of family she may occasionally miss".
14. Glorell-Marie Banister wrote on 20 January 2014 in similar terms. She detailed an instance about three years earlier when the applicant assisted her when Ms Banister was admitted to hospital.
15. Other letters made similar points.

C. The respondent's decision letter
16. The respondent's decision letter, having set out the applicant's immigration history up to that time, summarised the applicant's human rights claim as being "that you have developed a private life while staying in the UK, you claim to have lost all ties to your country of origin as your adopted parents passed away, and therefore you have no family in your country of origin".
17. The letter analysed the applicant's case, initially, by reference to the Immigration Rules. The respondent noted that the applicant had not put forward anything to suggest that she enjoyed a family life in the United Kingdom.
18. So far as private life was concerned, the respondent considered that the relevant provision of the Rules was paragraph 276ADE. The respondent observed that the applicant had not lived continuously in the UK for the past twenty years. Accordingly, having regard to paragraph 276ADE(1)(vi), the applicant needed to show that there "would be very significant obstacles" to her integration into the country to which she would be required to go; namely, Trinidad and Tobago.
19. The respondent did not consider that the applicant had demonstrated the existence of any such significant obstacles. It was observed that the applicant had spent 34 years in Trinidad and Tobago, which was more than half her life, including her formative years. She would be returning to a country of which she would have some knowledge, due to the length of time she had lived there. It was considered that the applicant would have retained the language and culture of Trinidad and Tobago. There would be no linguistic problems, given that Trinidad and Tobago's national language is English.
20. Any relationships developed in the United Kingdom could be maintained, according to the respondent, by way of modern forms of communication. No evidence had been submitted to "portray that any relationships with your friends are exceptional and go beyond the normal emotional ties between adult friends".
21. In the respondent's view, the applicant's knowledge of Trinidad and Tobago would assist her in gaining employment and reintegration, following her return. The applicant had worked in the United Kingdom for a fitness company and "therefore you can use the skills you learnt in the UK to help look for employment in your country of origin".
22. Although the applicant said that she had no ties to Trinidad and Tobago, the respondent noted that the applicant had friends in the United Kingdom and it would not be unreasonable for those friends to assist the applicant by providing "emotional support during this period of transition".
23. For these reasons, it was not considered by the respondent that the applicant met the requirements of paragraph 276ADE. The respondent therefore turned to the issue of whether the application raised "any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules".
24. As regards Article 8, the respondent noted the applicant's submission that her application for a variation of leave, dated 27 September 2012, should in her view have led to an appealable decision and that, in addition, the applicant should have been entitled to work during the requisite period, since her leave would have been extended by section 3C of the Immigration Act 1971.
25. On this issue, the writer of the letter said:-
"After a thorough investigation I can confirm now that the application was rejected due to incorrect card details being submitted on your application, and for this reason the transaction could not be completed".
26. The letter went on to note that the applicant's employer dismissed the applicant, as the results of the employer's employment verification check demonstrated that the applicant was in the United Kingdom illegally. The decision letter noted that, at that time, an Employment Tribunal hearing was due to take place.
27. The letter continued as follows:-
"28. Previously to this application you had been granted Discretionary Leave from the Home Office to give you enough time to finish a volunteering role at the London Olympics and further to then arrange to leave the UK. Your course had also been curtailed as the licence from the college had been revoked".
28. So far as financial issues were concerned, the letter stated:-
"30. In a previous application you were refused due to another financial issue, so this was not the first time this issue has occurred in your history of applications to the Home Office. In 2010 you had a Student Application refused as you could not prove your could sustain funds in your account for 28 days".
29. The decision letter then returned, in the context of Article 8, to the issue of the applicant's private life:-
"31. You claim to have developed relationships with family and friends in the UK but haven't provided sufficient evidence to prove this. However, it is generally accepted that the protection of life under Article 8 involves a relationship between co-habiting adults and their dependant minor children. Even if the relationships you describe exist, consideration of other relationships between adult family members requires evidence that substantiates involvement of more than the normal emotional ties that exist between adult family members.
32. You will be returning to a country that will be familiar to you in terms of the language, traditions, customs and social structure. You have proved that you are capable of living independently as an adult, therefore you will be able to work to support yourself and make the most of any skills you have developed whilst living in the UK.
33. Regarding compliance, your leave to remain expired on 27/09/2012 and you have remained in the UK illegally and continued to work ever since despite knowing that you have no basis to work or remain in the UK.
34. Regarding delay, considering all the information of the case, it is not accepted that there have been any circumstances beyond your control that have prevented you from returning to your country of origin. The amount of time you have been in the UK, is not a factor in itself, which would justify allowing you to remain here.
35. It has therefore been decided that there are no exceptional circumstances in your case. Consequently your application does not fall for a grant of leave outside the Rules."
30. Although the applicant claimed that any attempt to remove her from the United Kingdom would breach the United Kingdom's obligations under Articles 3 and 8 in respect of her medical condition, the respondent found that there was no satisfactory evidence to substantiate this assertion. I should here record that this aspect formed no part of the judicial review challenge, as advanced by the applicant at the hearing.

D. The "certification" paragraph
31. At the end of the section headed "exceptional circumstances" in the decision letter, there is the following:-
"36. In addition, after considering all the evidence available to them, the Secretary of State's official has decided that your Human Rights claim is clearly unfounded and hereby certifies it to be so under section 94(1) of the Nationality, Immigration and Asylum Act 2002. This is because you do not meet the requirements of leave to remain on grounds of family life under Appendix FM or private life under Paragraph 276ADE(1) of the Immigration Rules. Further you have not raised any circumstances that are considered exceptional. In light of this and the consideration above, it is considered that your application for leave to remain on the basis of your Human Rights is clearly without substance and cannot succeed on any legitimate view.
37. This means that you may not appeal whilst you are in the United Kingdom."

E. The grounds of challenge
32. The grounds of application contend that the respondent "was directed by the First-tier Tribunal in February 2014 to issue the applicant a notice of an appealable decision, following the refusal letter of 28 May 2013, refusing leave to remain to the applicant. No such decision has been issued by the respondent to the applicant to the present day, preventing the applicant to appeal to the First-tier Tribunal".
33. This contention is incorrect. Although, as I have already noted, Judge Canavan considered that, on the evidence before her, the respondent had not made good her contention that she had been unable to take the requisite fee for the application from the applicant, in paragraph 7 of her decision, the judge said "whilst nothing in this notice is binding the respondent may want to take note of my finding that there is no evidence to show that the initial application was in fact invalid". Since the First-tier Tribunal had decided that it lacked jurisdiction, it could not issue any "direction" to the respondent. In any event, it did not purport to do so.
34. The second problem with this aspect of the grounds is that the decision under challenge is appealable, but only once the applicant has left the United Kingdom.
35. The grounds continue by stating that the respondent has still not produced any evidence to discharge the burden of proof on her that the requisite payment could not be taken by the respondent in respect of the 2012 application for variation of leave.
36. The second ground relates to the respondent's alleged failure to grant leave to the applicant in order for her to pursue her employment claim. This was said to be contrary to Article 6 of the ECHR. As has been noted, her employment claim has been settled.
37. The third ground attacked the basis of certification under section 94(1). The grounds contended that, in determining that there were no exceptional circumstances in the applicant's case, such as to warrant the grant of leave by reference to Article 8, the respondent had failed to have regard to the full circumstances of the matter. The respondent had been wrong to reject the application of 27 September 2012 as invalid, which had led to the applicant being denied an in-country right of appeal before the First-tier Tribunal. Furthermore, a large part of the applicant's case had been ignored.
38. Finally, the grounds took issue with the terms of the certification, as set out in the decision letter. Those terms failed to comply with the respondent's guidance, in that the writer of the decision had not appreciated that a failure to meet the requirements of the Rules was not itself a ground on which to certify the claim as clearly unfounded.

F. Supreme Court case law
39. Mr Nicholson sought to rely upon the judgments of the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, MM (Lebanon) & Ors v Secretary of State for the Home Department [2017] UKSC 10, and Agyarko v The Secretary of State for the Home Department [2017] UKSC 11. In summary, Mr Nicholson submitted that the approach of the Court of Appeal to Article 8 cases, as set out in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 was criticised by the Supreme Court and that, in any event, the approach adopted by MF (Nigeria) cannot be used to determine the lawfulness of certification under section 94 of the 2002 Act. In Mr Nicholson's submission, the respondent's decision in the present case had fallen into error by employing MF (Nigeria) in that way.
40. In fact, in Hesham Ali, the Supreme Court approved of the approach adopted in MF (Nigeria), whereby a person's case is analysed first by reference to the Immigration Rules. If the person does not meet the requirements of the Rules, then consideration is given to whether there are any factors which demonstrate that leave should be granted by reference to Article 8 of the ECHR, on the basis that to do otherwise would violate the United Kingdom's obligations under that Convention.
41. The only qualification was that the Supreme Court did not agree that the Immigration Rules in the context of foreign criminal deportation constitute a "complete code" in that area. The Court held that this error was "insignificant" (paragraph 80) but that it:-
"? appears to have been misinterpreted in some later cases as meaning that the Rules, and the Rules alone, govern appellate decision-making. Dicta seemingly to that effect can be found, for example, in LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310 ? and AJ (Angola) v Secretary of State for the Home Department [2014] EWCA Civ 1636" (paragraph 52).
42. In MM (Lebanon), the Supreme Court confirmed that the Immigration Rules "do not absolve decision-makers from carrying out a full merits based fact-sensitive assessment outside the Rules" (paragraph 58). It is clear the respondent's decision of 9 March 2016 proceeded in what may be described as the usual way, compatibly with MF (Nigeria) and the earlier judgment of Sales J in Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin), by considering whether the applicant met the requirements of the Immigration Rules, before turning to consider at paragraphs 21 to 35, whether there were "any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules" (paragraph 21).
43. In Agyarko, the Supreme Court found there was nothing amiss in the respondent's use in her Immigration Rules and Instructions of the term "exceptional circumstances". Lord Reed had this to say:

58. The expression "exceptional circumstances" appears in a number of places in the Rules and the Instructions. Its use in the part of the Rules concerned with the deportation of foreign offenders was considered in Hesham Ali. In the present context, as has been explained, it appears in the Instructions dealing with the grant of leave to remain outside the Rules. Its use is challenged on the basis that the Secretary of State cannot lawfully impose a requirement that there should be "exceptional circumstances", having regard to the opinion of the Appellate Committee of the House of Lords in Huang.
59. ? the case of Huang was decided at a time when the Rules had not been revised to reflect the requirements of article 8. Instead, the Secretary of State operated arrangements under which effect was given to article 8 outside the Rules. Lord Bingham, giving the pinion of the Committee, observed that the ultimate question for the appellate immigration authority was whether the refusal of leave to enter or remain, in circumstances where the life of the family could not reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudiced the family life of the applicant in a manner sufficiently serious to amount to a breach of article 8. If the answer to that question was affirmative, then the refusal was unlawful. He added:

"It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar [R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368], para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test" (para 20).
60. It remains the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions in issue in the present case do not depart from that position. The Secretary of State has not imposed a test of exceptionality, in the sense in which Lord Bingham had in mind: that is to say, a requirement that the case should exhibit some highly unusual feature, over and above the application of the test of proportionality. On the contrary, she has defined the word "exceptional", as already explained, as meaning "circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate". So understood, the provision in the Instructions that leave can be granted outside the Rules where exceptional circumstances apply involves the application of a test of proportionality to the circumstances of the individual case, and cannot be regarded as incompatible with article 8. That conclusion is fortified by the express statement in the Instructions that "exceptional" does not mean "unusual" or "unique" ?"
44. As can be seen, in this important group of cases, the Supreme Court has, in substance, endorsed the approach that the Court of Appeal and both levels of the Tribunal has adopted, following Nagre, in reaching decisions in Article 8 cases.

G. The hypothetical Tribunal
45. I do not consider Mr Nicholson is correct to suggest that the approach adopted by the respondent in the present decision letter has no part to play when the respondent is deciding whether to certify a case under section 94(1),or where the Upper Tribunal is deciding on the lawfulness of such a certification decision. On the contrary, the starting point must always be whether the decision maker considers that leave should be granted, either under the Rules or by reference to Article 8. If he or she does, then, plainly, certification is irrelevant. If not, then the question will be whether any hypothetical Tribunal, properly directing itself, could conclude that, in fact, the appeal should be allowed on the basis that it would be a disproportionate interference with the Article 8 rights of the person concerned (or some other person) to require the person concerned to leave the United Kingdom.
46. By the same token, I do not accept Mr Nicholson's submission that Part 5A of the 2002 Act, which requires certain public interest considerations to be taken into account by a court or tribunal in deciding Article 8 proportionality, has no part to play in a section 94(1) certification case. On the contrary, since the hypothetical Tribunal would be required to have regard to the provisions of Part 5A in determining where to strike the proportionality balance, the person deciding upon certification must have regard to that fact, in determining whether the hypothetical appeal would be "bound to fail" (ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6). Part 5A is part of the legal landscape that the hypothetical Tribunal must traverse. Anyone deciding whether to certify (or whether certification was lawful) has to keep that in mind.

H. Is the certification paragraph (36) of the decision letter defective?
47. It is convenient at this point to address what is the final challenge in the grounds; namely, that the decision letter was legally defective in failing to differentiate between what the respondent's decision maker made of the applicant's human rights claim and what a hypothetical Tribunal might make of it.
48. The fact the Supreme Court in MM (Lebanon) reiterated the point made by the Court of Appeal in Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045, that different judges may legitimately come to different conclusions on Article 8 on the same set of facts, is emphatically not authority for the proposition that certification under section 94(1) of the 2002 Act is no longer possible. Section 94(1) certification can occur, provided that the applicant's Article 8 case is so weak as to remove it from the category where different views might legitimately be taken, and place it instead in the category of cases that are so hopeless as to be bound to fail before any Tribunal that is properly applying the law.
49. Having so found, I turn to FR (Albania) & Anor [2016] EWCA Civ 605. In his judgment, with which Lindblom LJ agreed, Davis LJ had this to say:-
"122. The power to certify conferred on the Secretary of State is an important one. Many asylum claims, regrettably, are indeed clearly unfounded: to permit such claims to progress through the in-country appeals system not only has an adverse impact on limited resources it also operates to delay the hearing of the many other asylum appeals which are properly arguable. The rationale behind s. 94 is self-evident: and the importance Parliament has attached to it is illustrated by the language it has chosen, which the courts must respect and follow.
123. The power to certify is, in substance, in the nature of a summary decision. But it is a decision, or judgment, which has been conferred by statute on the executive. I agree with Beatson LJ that in this context the role of the court, in any consequential claim in judicial review proceedings, is one of review. The decision is not that of the court itself: and, as Lord Phillips has explained in the case of L, the assessment by the court ultimately is as to the rationality of the decision to certify made on behalf of the Secretary of State.
124. The style of drafting of the decision letters in these two cases is, in my experience, one commonly used on behalf of the Secretary of State. The drafting technique is to set out in detail and at considerable length the reasons for rejecting the asylum claim followed by a relatively shortly stated conclusion that the claim is assessed as clearly unfounded. That is not necessarily an objectionable technique: but of course it does necessarily then invite close attention to the reasons (and the manner of expression of those reasons) in the preceding parts of the decision letter.
125. I would not agree, however, as a matter of generality, with the suggestion to the effect that prior isolated references in a decision letter to (say) 'inconsistencies in your evidence' or 'improbabilities in your account' would necessarily be incompatible with a decision to certify as clearly unfounded. It all depends. Cherry-picking of certain expressions in the decision letter will not necessarily vitiate a decision to certify, any more than carefully chosen language in such letter will necessarily validate a decision to certify. The substance of the matter has to be appraised. Ultimately the decision letter must be read in a practical way and as a whole, in the context of the surrounding evidence.
126. The crucial point to emphasise for these purposes is that there is a two-stage reasoning process in play here. The style of drafting adopted in this case, although not of itself objectionable, should not be permitted to lend any encouragement to an approach: 'because I have rejected the asylum claim therefore I certify as clearly unfounded'. That is not permissible: and in fairness the policy guidance recognizes as much.
127. An analogy can be drawn here with a decision of the court or Upper Tribunal to certify proceedings as totally without merit. Indeed the certificate of the Upper Tribunal Judge to that effect in FL was one of the bases on which permission to appeal was given by McCloskey J. The parties pragmatically did not seek to develop before us separate arguments on that point. But the two separate jurisdictions - the power of the Secretary of State to certify as clearly unfounded under s. 94 and the power of the Court or Upper Tribunal to certify proceedings as totally without merit - have this consideration in common: that is, that both powers are exercisable in a case assessed, putting it broadly, as 'bound to fail'. For that reason, it is commonplace for judicial decisions to refuse permission to apply for a review of a decision to certify as clearly unfounded also to certify the proceedings - and properly so - as totally without merit.
128. I would draw attention in this regard to the decision of a constitution of this court in the case of Wasif v Secretary of State for the Home Department [2016] EWCA Civ 82. In that case, addressing in general terms decisions to certify as totally without merit, Underhill LJ (in giving the judgment of the Court) emphasised that the reasoning for refusing permission to apply for judicial review is an exercise distinct from the reasoning for certifying as totally without merit. That remains the case even if the latter decision is founded upon the reasons given for the former decision: see in particular at paragraph 21 of the judgment. That two-stage approach accords with the approach necessitated in the present kind of case."

50. The Court of Appeal did not strike down the section 94 certifications of FR and his co-appellant, KL, because of the way in which the respondent had phrased the respective paragraphs of her decisions that were dealing with certification. Rather, the Court quashed the certificates because deficiencies in the respondent's substantive Article 8 analysis demonstrated that she was wrong to conclude that the cases were bound to fail.
51. I accordingly find that FR (Albania) contains no basis for quashing the decision in the present case, because of the way in which the "certification" paragraph was phrased. On any fair reading of paragraph 36 of the present decision letter, the respondent treated certification as a discrete matter, as evidenced by the opening words "In addition". Although the stated rationale for certification required the reader to return to the respondent's earlier Article 8 analysis, it is plain from the closing words - "is clearly without substance and cannot succeed on any legitimate view" - that the respondent viewed the applicant's Article 8 case as one falling outside the category of cases in which different Tribunal judges could legitimately reach different decisions.

I. The nature of the applicant's human rights claim
52. I therefore turn to the nature of the applicant's human rights claim.
53. Although Mr Nicholson categorised the applicant as an "orphan", she shares that characteristic with every other adult whose own parents have died. The applicant was already 34 years of age when she arrived in the United Kingdom in 2007. The lady who had acted as the applicant's mother had, we are told, died in 1999. The applicant had, accordingly, been able to live in Trinidad and Tobago in the interim, notwithstanding her orphan status, without any problems of which I have been made aware. Her ostensible purpose for coming to, and subsequently remaining in, the United Kingdom was to study. As a result, the applicant's position was plainly "precarious" in terms of section 117B(5) of the 2002 Act. Other things being equal, therefore, little weight should be given to the applicant's private life in the United Kingdom, in determining the proportionality of any Article 8 case.
54. There is clearly a dispute between the parties as to whether the applicant put the respondent in the position of being able to take from her bank account the money required to pay for her application to vary her leave to remain. Although her view was not binding on the respondent, Judge Canavan considered the respondent had not made out her case in this regard. It is, however, noteworthy that that application was made only two days before the applicant's discretionary leave to remain ended on 29 September 2012. The applicant thus ran the risk of finding herself without leave if her application proved to be ineffective for any reason. Furthermore, the only reason the applicant had been given that discretionary leave was because the respondent had complied with the decision of the First-tier Tribunal, which had allowed the applicant's appeal on the basis that the applicant should be given a period of time to complete her volunteer activities and prepare to leave the United Kingdom. The applicant did neither of these things. On the contrary, she continues to pray in aid her volunteer activities as an aspect of her private life in the United Kingdom, which she says entitles her to remain here.
55. Viewed in its own terms, the applicant's private life claim is exiguous. She has some friends and she undertakes social activities, as well as helping people in various ways. Benign though this may be, hers is a very weak private life case.
56. The applicant contends, both by reference to Article 8 and to the Immigration Rules, that she has lost ties with Trinidad and Tobago and would face serious difficulties in resuming her life there. That aspect of the applicant's claim was rejected by the respondent at paragraphs 16 to 18 and 32 of the decision letter. The respondent found that the applicant had spent 34 years in Trinidad and Tobago - more than half her life - which also included her formative years. She would be returning to a country of which she would have some knowledge and whose national language was English. That knowledge would assist the applicant in gaining employment in reintegration. It was noted that the applicant had worked in the United Kingdom for a fitness company and could use her skills in order to look for employment in her country of origin. Any friends in the United Kingdom could lend emotional support to the applicant during her period of transition.
57. All of that strikes me not only as unarguably cogent but so cogent as to preclude any hypothetical Tribunal from properly reaching a contrary conclusion.
58. The fact that the applicant brought proceedings in an Employment Tribunal and subsequently settled them on what appear to have been favourable terms cannot rationally be said to enhance the applicant's private life claim. The proceedings are at an end. The applicant has received financial compensation. Article 8 does not exist in order to reward persons further in this regard.
59. The final issue, therefore, is whether the applicant's weak Article 8 claim is nevertheless such as to be capable of outweighing the public interest in maintaining immigration controls because that interest has been diminished in some way.

J. The September 2012 application for leave
60. Since this is a section 94(1) certification case, I shall take the applicant's case at its highest and assume that the respondent may have made a mistake in concluding the applicant provided incorrect payment card details in connection with her application for leave. I nevertheless find that this scenario is not capable on any legitimate view of materially diminishing the public interest in maintaining immigration controls. The respondent's task in processing applications and making myriad decisions under the Immigration Acts is daunting. It cannot be right that an administrative mistake, without more, must lead to a diminution in the general public interest.
61. Instead, I consider the matter falls to be examined along the lines on which the issue of delay in reaching decisions in the immigration field was considered by the House of Lords in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41. In that case, Lord Bingham identified various ways in which delays in making decisions under the Immigration Acts might affect a person's Article 8 rights. I address these in turn, adapting them as necessary by reference to the facts of the present case.
62. If one assumes the fee issue in favour of the applicant, then two matters arise. First, the applicant would have been entitled to a decision to refuse to vary leave to remain. My attention has not been drawn to any details of what the applicant's ostensible reason was for making the September 2012 application. On such facts as we have, however, it is in my view self-evident that the application would have been refused by the respondent. The applicant had not used the leave granted to her in the way that the First-tier Tribunal had envisaged. If, as seems to be the case, her private life was at that point essentially of the same character as it is now, then not only would the application have been refused by the respondent but any appeal would have been doomed to failure.
63. The second matter is that the fact the applicant was still in the United Kingdom at the date of the decision on 6 March 2016 might be ascribed, at least in part, to her determination to argue that the respondent was wrong to reject the 2012 application. In other words, the issue regarding the status of the applicant's application could be said to have had the effect of prolonging her time in the United Kingdom, analogously with the situation in EB (Kosovo). As will by now be evident, this is perhaps a generous assumption, given the applicant's history, which suggests she is likely to have been determined to remain in this country, come what may. Nevertheless, the effect of that passage of time has still not been such as to bring about any qualitative change in the nature of the applicant's private life. Her private life remains as it has been at all relevant points, revolving around friends, volunteering and social activities.
64. Nor can it be said that the passage of time has reasonably given the applicant any greater sense of security in the United Kingdom. On the contrary, her immigration history shows that the respondent has maintained her stance that the applicant has no legitimate reason to remain in the United Kingdom, following the completion of her studies. Thus, for example, in the letter to the applicant of 3 September 2012, granting her leave in consequence of the First-tier Tribunal's decision of 23 March 2012 (see paragraph 2 above), the respondent told the applicant:
"You should have no expectation that any further application will be granted on this basis and, as this leave has been granted outside of the Immigration Rules, you will no longer be able to apply in country for a further extension of stay under the Tier 4 migrant route but may return to the United Kingdom with appropriate entry clearance obtained overseas".
65. Finally, it cannot, I find, be rationally argued that the respondent's error (if such it be) concerning the rejected application is evidence of a "dysfunctional system" of the kind that the House of Lords had in mind in EB (Kosovo). If it was an error, it has not been shown to be anything other than a simple mistake.

K. Section 94(1) certification: the present position
66. I have already explained why I do not consider section 94(1) certification has been thrown into any doubt, as a result of the Supreme Court cases of MM, Hesham Ali and Agyarko. I should also make mention of the most recent immigration appeal in that Court, which was decided after the hearing in the present case.
67. In Kiare and another v Secretary of State for the Home Department [2017] UKSC 42, the Supreme Court held that the certification of the appellants' appeals under section 94B of the 2002 Act was unlawful. Section 94B provides that the respondent may certify a human rights claim if satisfied that despite the appeals process not having been begun or not having been exhausted, removal to the country or territory of proposed removal, pending the outcome of the appeal, would not be unlawful in human rights terms; in particular because there is not a real risk of serious irreversible harm being caused to the claimant before the appeals process is exhausted.
68. The majority of the Court took the position that, in effect, removal from the United Kingdom pursuant to section 94B certification rendered ineffective the appellants' ability to pursue effective appeals. The question arises whether the judgments in Kiare cast doubt on section 94(1) certification since the effect of such certification is, as we have seen, to preclude the bringing of an appeal whilst the person concerned is in the United Kingdom.
69. I am satisfied that Kiare does not have this effect. The Supreme Court's decision concerned section 94B certification. The judgments make no negative observations on section 94(1): see eg paras 35, 54, 58, 73.
70. In any event, the essential point is that, although the effect of section 94(1) certification is to preclude an appeal being brought whilst the would-be appellant is in the United Kingdom, the case law on section 94(1) certification makes it clear that the decision to certify is not taken by reference to whether an out of country right of appeal exists or whether, given the particular circumstances, that right is likely to be an effective one. Instead, the case law requires the Court or Tribunal to be satisfied that the respondent was correct to conclude that any such appeal would be bound to fail. By contrast, in section 94B, the power of certification was framed by the legislature so as to be available to the respondent regardless of whether the applicant's case was, or was not, of that character.

L. Decision
71. Standing back and drawing the various threads together, I am entirely satisfied that the respondent was entitled to certify the applicant's human rights claim as clearly unfounded. The applicant's private life is such as to be replicable in all material respects in Trinidad and Tobago. She has lived there for 34 years, without any material difficulty. The public interest in maintaining effective immigration controls is not diminished by any error of the respondent regarding the 2012 application for leave or by any other matter.
72. The application is accordingly dismissed. I shall hear Counsel on the issue of costs, if those cannot be agreed.~~~~0~~~~