Tribunal decisions

The decision

IAC-AH-DP-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/07417/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 September and 24 November 2016
On 16 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

ENTRY CLEARANCE OFFICER, KUWAIT
Appellant
and

ABDULMOHSEN ALI ABDULJALIL SHAHAB AHMAD
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr S Whitwell, Home Office Presenting Officer (1 September 2016)
Ms Z Ahmed, Home Office Presenting Officer (24 November 2016)
For the Respondent: No appearance

DECISION AND REASONS

1. This is an appeal by the Entry Clearance Officer against a decision of the First-tier Tribunal issued on 4 February 2016 allowing the applicant's appeal against the decision made on 31 April 2015 refusing him a certificate of entitlement to the right of abode. In this decision I will refer to the parties as they were before the First-tier Tribunal, the applicant as the appellant and the Entry Clearance Officer as the respondent.

2. At the hearing before me there was no appearance by or on behalf of the appellant. I am satisfied that the notice of hearing has been properly served. The appellant is a minor who lives in Kuwait with his family. The appeal before the First-tier Tribunal was decided without a hearing. Taking into account that the judge accepted the account given by the appellant's mother and there has been no indication that the appellant wishes to be represented at this hearing, I am satisfied that the proper course is to proceed with the hearing.

Background

3. The background to this appeal can be briefly summarised as follows. The appellant claims that he is a dual British/Kuwaiti national born in Kuwait. He is the son of Zainab Ahmed (formerly Lynn Weatherspoon), a British citizen, who married Ali Ahmad on 18 September 1989 when he was a student in the UK. At some point they returned to live in Kuwait and they have two children, an older son born on 2 June 2001 and the appellant born on 16 April 2004. The appellant's mother has not given up her British nationality but last British passport expired on 9 August 1999. She obtained Kuwaiti nationality on 13 June 2001 and also obtained a certificate of entitlement to the right of abode in the UK on 8 January 2002, which is endorsed in her Kuwaiti passport.

4. On 12 April 2015 both the appellant and his brother applied for certificates of entitlement. On 21 April 2015 the appellant's application was refused on the basis that he had provided with his application photocopies of the relevant documents whereas applicants were advised that original documents should be produced in support as originals could be examined to confirm their authenticity. The decision records that the respondent attempted to contact the appellant on 13, 14, 15, 16, 19, 20 and 21 April on the telephone number provided and also emailed on 19 April 2015 in order to give him the opportunity of providing his and his mother's original birth certificates so that the application could be processed. In the absence of any response to the telephone calls or a reply to the email, the respondent was not satisfied that the appellant had demonstrated that he had a right of abode in the UK. However, the application by his brother was granted.

The decision of the First-tier Tribunal

5. The appellant appealed against this decision. A statement from his mother explained that original documents had been submitted at the Visa Centre in Kuwait along with copies. She was asked to make an additional copy and the originals were handed back to her. She then had to travel to the UK as her mother was ill. Her phone would not work here as there was a problem. Her husband sent her an email on 21 April that the Visa Section were trying to contact her and she replied asking what the query was and saying that she was going to return on 30 April 2015. Both her sons applied at the same time and whereas her older son was granted a certificate of entitlement the appellant was not. She had submitted exactly the same documents for both sons.

6. The judge accepted this explanation finding that the appellant and his mother had provided the originals at the Visa Processing Centre only for them to be given back mistakenly and the photocopies retained. He said that it was not the appellant's fault that his mother's original documents were returned by the staff.

7. The judge was provided with a copy of all the documents including the appellant's mother's birth certificate, her own certificate of entitlement, her expired British passports and marriage certificate as well as the conversion certificate issued by the mosque. He found that these were genuine copies and he accepted her evidence in its entirety. He was satisfied that the respondent was right to request sight of the originals not having been aware that they had been erroneously returned by the Visa Processing Centre. He commented that the respondent would still be entitled to inspect the documents prior to the issue of the certificate and also as and when the appellant or his mother sought to arrive in the UK. He was satisfied that the appellant met the legal requirements to be granted a certificate of entitlement and therefore allowed the appeal. He then commented that having allowed the appeal under the Rules he did not need to consider article 8.

The Grounds and Submissions

8. The respondent argues in the grounds that the judge erred in law by failing to have regard to the requirements of reg. 6A of the Immigration Certificate of Entitlement to the Right of Abode Regulations 2006, which reads:

"A certificate of entitlement will only be issued where the appropriate authority is satisfied that the applicant

(a) has a right of abode in the United Kingdom under Section 2(1) of the 1971 Act and expressly requires

(i) the applicant's full birth certificate or adoption certificate;

(ii) the parents' marriage or civil partnership certificate if claiming through father or if claiming through woman who is a parent of the applicant by virtue of Section 42 or 43 of the 2008 Act;

(iii) the parents' full birth certificate, adoption registration or naturalisation certificate ..."

9. It is argued that in the absence of the production of the original documents the First-tier Tribunal Judge was not entitled to rely on copy documents to find that the appellant qualified for a certificate of entitlement. In summary, it is asserted that the judge materially erred in law in allowing the appellant's appeal without sight of the original documents.

10. Mr Whitwell supported his submission that the judge had erred in law by relying on copy documents on the basis that the "appropriate authority" referred to in the Regulations must be the Entry Clearance Officer and not those who process the application. The fact remained that the respondent had not seen the original documents despite making numerous attempts to obtain them. Secondly, he argued that the judge had failed to explain why he was satisfied that the originals had been produced at the Visa Processing Centre and that in the light of this dispute of fact it had not been appropriate for the matter to proceed without a hearing. He accepted that this was a matter not raised in the grounds.

11. Finally, Mr Whitwell submitted that the judge had dealt with the appeal as an appeal under the Rules when by reason of the amendments to the Nationality, Immigration and Asylum Act 2002 there was now no right of appeal on that ground and any appeal could only be on human rights grounds.

12. It is common ground that copy documents were submitted with the notice of appeal to the First-tier Tribunal but it should also be noted that at section 3A the grounds say that if original documents have to be given they will be sent by courier and the appellant asked to be informed if original documents were required. In section (d) the appellant sets out his account of the circumstances in which the original documents were returned and explains why the family applied for the right of abode as follows:

"We are only using the right of abode as we were asked to do so instead of carrying two passports. All my family did not make new British passports when they expired because of the right of abode in the Kuwait passports. We have this as we hold two nationalities British and Kuwaiti. I hope this can be resolved as I am a British citizen who has now not been given right to enter the country and I cannot claim for a visa because I am British. Very confusing. All original documents can be sent to you by DHL if required or can be taken to the Visa Centre in Kuwait for inspection again. Please advise me as to what I should do."

Consideration of whether the First-tier Tribunal erred in Law

13. However, the issue I must consider is whether the First-tier Tribunal erred in law and that the decision should be set aside. I am satisfied that there is an error of law because the First-tier Tribunal had no jurisdiction to consider an appeal on immigration grounds. The provisions of s. 82 of the 2002 Act setting out the rights of appeal to the First-tier Tribunal came into full effect on 6 April 2015. There is no right of appeal against the decision to refuse the certificate of entitlement. There is, however, a right of appeal if the respondent has decided to refuse a human rights claim made by an applicant. There are transitional provisions for applications made before the 6 April 2015 but the appellant, whose application was made on 12 April 2015, does not come within them. His only possible right of appeal on the evidence before me depends on whether the respondent's decision can be categorised as a decision to refuse a human rights claim.

14. The ground relating to jurisdiction was not been raised in the respondent's appeal but it does not need to be. The First-tier Tribunal's jurisdiction is set out by statute and cannot be extended by waiver, concession or a failure to take the point at an earlier stage in the proceedings. As the First-tier Tribunal had no jurisdiction to deal with the appeal in the way it did, there is an error of law such that the decision must be set aside.

15. However, as I have already indicated it may be arguable that the appellant has an appeal on human rights grounds. Before appeal is relisted to re-make the decision, the parties may like to explore whether this matter can be resolved without the need for a further hearing. The respondent's position is that the Entry Clearance Officer as the appropriate authority is entitled to see the original documents whereas the appellant says that the original documents were submitted but as the judge found returned in error before the Entry Clearance Officer saw them. The judge also accepted that it was due to an unfortunate set of circumstances that the appellant's mother could not get back in touch with the respondent before the decision was issued. In the grounds of appeal the appellant offered to send the originals to support his appeal but assuming they are in Kuwait, the sensible course would be to have an opportunity of producing them there so that the respondent can reconsider the decision. Although it must be for the parties to decide how to proceed, a sensible course would be for the appellant through his parents to have an opportunity of contacting the respondent to arrange for the original documents to be made available so that the decision can be reviewed.

16. So far as this appeal is concerned I am satisfied that the proper course is for the appeal to be retained in the Upper Tribunal to consider whether there is a right of appeal on human rights grounds and if so, to decide it. I am also conscious of the fact that the appellant has not had the opportunity of making submissions on the issue of jurisdiction or commenting on the respondent's evidence that his application was made on 12 April 2015 and therefore fell outside the transitional provisions. For the avoidance of doubt it will be open to the appellant to raise these issues in further submissions.

17. At the resumed hearing on 24 November 2016 there was no appearance on behalf of the appellant and no further written submissions have been received. I am satisfied that the notice of hearing has been properly served and that the proper course is to proceed with the hearing adopting the reasons set out in [2] above. No further submissions have been received by or on behalf of the appellant.

Further Submissions.

18. Ms Ahmed indicated that she had no information about whether the appellant through his parents had contacted the respondent to arrange for the original documents to be made available so that the decision could be reviewed, a course I had suggested in [15].

19. This is a case where I am satisfied that the application was made on 12 April 2015 and therefore the appellant was not able to bring himself within the transitional provisions referred to at [13] above.

20. It follows that the appellant's only right of appeal is on human rights grounds. The rights of appeal after 6 April 2015 are set out in the amended provisions of s.82 of the Nationality, Immigration and Asylum Act 2002. There is a right of appeal where "the Secretary of State has decided to refuse a human rights claim made by [a person]: s.82(1)(b)" and the term "human rights claim" is now defined in the amended s.113(1) of the 2002 Act as follows:

"(a) [human rights claim] means a claim made by a person that to remove him from or to require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under s.6 of the Human Rights Act 1998 ... but

(b) does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this part in accordance with the Immigration Rules."

21. I am not satisfied that any human rights claim was made in the appellant's application still less that there has been a human rights decision. In any event, it is difficult to see how a human rights claim could be successful in a case where the certificate of entitlement to the right of abode was refused in the circumstances of this application. For the appeal to be allowed on human rights grounds would be to use the human rights appeal as a vehicle for an appeal on the merits to which there is now no entitlement by statute.

22. It is unfortunate that the appellant and his family may well have been misled by the fact that the notice of decision dated 21 April 2015 gave the impression that there was a full right of appeal when that was not the case. However, as I have already indicated the statutory jurisdiction of the First-tier Tribunal cannot be extended by waiver or concession.

23. The appellant's remedy is to make a fresh application or further representations to the respondent but there is no available remedy by way of a statutory appeal to the First-tier Tribunal.

24. There was no jurisdiction to allow the appeal as an immigration appeal and I am not satisfied that there has been any human rights claim within s.113 of the 2002 Act or a decision giving rise to a right of appeal.

Decision

25. The First-tier Tribunal erred in law and the decision is set aside. There was no right of appeal under s.82(1) as there was no decision by the respondent to refuse a human rights claim. No anonymity direction was made by the First-tier Tribunal.

Signed H J E Latter Date: 14 December 2016

Deputy Upper Tribunal Judge Latter