Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-005627
First-tier Tribunal No: HU/52368/2022
LH/00337/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 April 2023

Before

UPPER TRIBUNAL JUDGE KAMARA
DEPUTY UPPER TRIBUNAL JUDGE KEITH

Between

MR ALTIN GURA
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms A Delbourgo, counsel instructed by Dean Manson LLP Solicitors
For the Respondent: Mr S Whitfield, Senior Home Office Presenting Officer

Heard at Field House on 10 March 2023

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge FE Robinson heard on 16 August 2022.
2. Permission to appeal was granted by First-tier Tribunal Judge Thapar on 18 November 2022.
Anonymity
3. No anonymity direction was made previously, and there is no reason for one now.

Background
4. The appellant states that he last entered the United Kingdom on 5 June 2004. On 29 April 2021, he made a human rights application based solely on his private life in the United Kingdom. That application was refused in a decision dated 5 April 2022. In essence, the application was refused as the appellant was unable to demonstrate that he met any of the requirements of paragraph 276ADE (1) of the Immigration Rules. In particular, the respondent noted that his continuous residence fell short of 20 years and that there were no very significant obstacles to his integration into Albania.
The decision of the First-tier Tribunal
5. The appellant and his brother, Shahin, gave evidence before the First-tier Tribunal. In addition to the claims made to the Secretary of State, the judge was told that the appellant had established a family life with his brother in the United Kingdom and that he feared a gang in Albania. The judge found the evidence of the appellant and his brother as to the presence of relatives in Albania to be inconsistent and further noted the lack of documentary evidence supporting the appellant’s claimed residence in the United Kingdom. The judge rejected the assertions regarding a threat from a gang in Albania, found the requirements of the Rules were not met and that there was no relevant family life between the appellant and his brother.
The grounds of appeal
6. The grounds of appeal were as follows. Firstly, the judge gave insufficient reasons for finding there to be no family life. Secondly, there was a failure to properly consider the witness statements in respect of the appellant’s residence in the United Kingdom, it being contended that the appellant’s residence from 2004 was not hitherto in dispute. Thirdly and lastly, it was unreasonable for the judge to make a credibility finding for the reason given.
7. Permission to appeal was granted on the basis sought, with the judge granting permission making the following remarks.
Ground 2 of the Appellant’s application does raise an arguable error of law as it is unclear from the Respondent’s refusal letter that the length of the Appellant’s residence in the UK is disputed.
8. The respondent filed a Rule 24 response dated 12 December 2022. In it, the appeal was opposed, with the following comments being made.
3. The appellant did not meet the requirements of paragraph 276 ADE relating to length of residence and the application letter submitted on the appellant’s behalf implied that he could not prove his length of residence with documentary evidence. See page 42 of the hearing bundle.
The hearing
9. When this matter came before us, Mr Whitfield confirmed that the appeal was opposed. Thereafter we heard submissions from both representatives which took into consideration in reaching our decision. At the end of the hearing, we informed the parties that there was no material error of law in the decision of the First-tier Tribunal and that the said decision was upheld. We give our reasons below.
Decision on error of law
10. Ms Delbourgo focused on the second ground, in respect of which the grant of permission was made. She argued that the appellant had no forewarning that the issue of his length of residence would be contested. We do not accept that submission. The decision letter, in referring to the appellant’s immigration history, records that he ‘claimed that he re-entered’ the United Kingdom on 5 June 2004. Furthermore, while the respondent considers the appellant’s human rights claim, there is no indication of any acceptance of any aspect of the content of that claim. The respondent’s conclusions are prefaced by the words, ‘From the information provided it is noted…’ As highlighted in the Rule 24 response, the letter of representation dated 14 May 2021, which accompanied the appellant’s human rights claim referred to a complete absence of supporting evidence owing, ostensibly, to the appellant not having evidence of identity until 2014. It is clear from the decision that the Secretary of State considered the appellant’s claim at its highest but this did not amount to acceptance.
11. If the decision letter was not sufficiently clear to those representing the appellant, the view of the respondent’s Home Office Presenting Officer put the point clearly at the First-tier Tribunal hearing. As recorded by the judge at [10] in a summary of the respondent’s case, ‘the Appellant has not shown that he has been in the United Kingdom since 2004. There is no documentary evidence for this period.’ As noted in the respondent’s review, the appellant provided no bundle of evidence in advance of the hearing. At the hearing, the appellant relied solely upon his own witness statement and that of his brother. Ms Delbourgo confirmed that there was no indication of any application for an adjournment of the First-tier hearing for the appellant to provide any evidence of his claimed residence in the United Kingdom. In addition, Ms Delbourgo informed us that if an error of law was found, and the appeal was to be remade at the Upper Tribunal, there was no supporting evidence in existence. We further noted that no application had been made under 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to provide evidence which was not before the First-tier Tribunal in the four months since permission to appeal was granted. Contrary to what is argued in the grounds, the judge took account of the oral evidence and witness statements as can be seen from [27]. Nonetheless, the judge was not required to accept the claimed residence set out in this evidence where documentary evidence ought to have been available. In this we note that the judge considered the appellant’s evidence at [29] which included reference to having a GP, a mobile telephone contract and previous flatmates. None of that evidence was before the judge. We find that there was no procedural error in the judge’s approach and that the judge’s findings as to the appellant’s claimed length of residence were unarguably sound.
12. There is little to say about the third ground. The presence of family members in Albania was relevant to the assessment of whether there were very significant obstacles to the appellant’s reintegration. The judge did not err in noting an inconsistency in the evidence on this point. The appellant stating that there were no relatives remaining in Albania, whereas his brother mentioned a third cousin and his family who had provided him with his assistance during his recent visit to Albania. We do not accept Ms Delbourgo’s submission that the judge’s finding here infected the remaining conclusions. On the contrary, the judge’s finding that the appellant could only prove his residence in the United Kingdom from the date of his application in 2021, means that the presence of family members in Albania is, in any event, of limited importance.
13. The first ground criticises the judge for providing insufficient reasons for rejecting the claimed family life between the appellant and his adult brother. We find that the remaining content of the grounds is little more than an attempt to reargue the appeal. In view of the absence of detail or supporting evidence of a relevant family life, the judge was entirely entitled to conclude that there was none, and that the removal of the appellant was a proportionate outcome.
Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The decision of the First-tier Tribunal is upheld.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 March 2023

NOTIFICATION OF APPEAL RIGHTS
1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:
2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).
3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).
4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).
5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.
6. The date when the decision is “sent’ is that appearing on the covering letter or covering email