Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/14006/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 6th October 2016
On 7th October 2016

Before

UPPER TRIBUNAL JUDGE COKER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

YUANTING WU
(Anonymity direction not made)
Respondent

Representation:
For the Appelant: Ms R Peterson, Senior Home Office Presenting Officer
For the Respondent: Mr C Timson instructed by AGI solicitors

DETERMINATION AND REASONS

1. In an interlocutory decision promulgated on 7th June 2016 I set aside the decision of the First-tier Tribunal and made directions for the resumed hearing in the following terms:

ERROR OF LAW AND DIRECTIONS

1. Ms Wu, a citizen of China date of birth 2nd October 1999 applied for entry clearance, on 30th September 2014, to the UK to join her father (who has indefinite leave to remain in the UK), her mother (who has discretionary leave to remain in the UK) and her two siblings (both of whom are British Citizens). Her mother had been granted discretionary leave to remain until 12th October 2014 and this was subsequently extended until 28th November 2017.

2. Ms Wu applied for entry clearance on line. That application form was as the child of a settled person. The hard copy confirmation of that application confirmed the application was as "the child of settled parents or with one parent who has limited leave as a partner or parent granted under the Rules in force before 9 July 2012.

3. Ms Wu's application was refused by an ECO on 30th October 2014. The ECO states

"? Your mother's leave was granted in 2012 before your fathers indefinite leave to remain in 2013. Your mother therefore does not hold settlement or limited leave as a partner.

I am therefore not satisfied that both parents are present and settled in the UK or both parents are being admitted on the same occasion for settlement or one person is present and settled in the UK and the other is being admitted on the same occasion for settlement or one parent is present and settled in the UK or being admitted on the same occasion for settlement and the other parent is dead; or one parent is present and settled in the UK or being admitted on the same occasion for settlement and has had sole responsibility ?

I therefore refuse your application under Paragraph 297 (i)(a)(b)(c)(d)(e)(f) of the Immigration Rules."

4. Ms Wu appealed the decision on the grounds the ECO had misapplied the Immigration Rules; that there were compassionate grounds the ECO must consider and the best interest of the child (s55 Borders Citizenship and Immigration Act 2009) and failed to consider paragraphs 301 and 302 of the Immigration Rules. The ECM reviewed the decision of the ECO on receipt of the grounds of appeal and concluded

"? The common issues have been considered in relation to Paragraph 297 given that and the appellant's mother has discretionary leave - which is not considered to be limited leave with a view to settlement. Therefore the appellant does not meet the requirements of Paragraph 297, 301 or 302 ?"

5. The SSHD sought and was granted permission to appeal on the grounds

(i) It was arguable the judge incorrectly interpreted the phrase "given leave with a view to settlement" firstly because at the date of the grant of discretionary leave to remain the only factors to be taken into account are the situation at that time and not in contemplation of what might be the position at some stage in the future; and secondly there is abundant provision for leave to be granted under the relevant immigration rules and this is a further reason to construe an application for further discretionary leave as not one 'with a view to settlement'.

(ii) the judge incorrectly relied upon unreported decisions of the First-tier Tribunal contrary to Practice Direction 11;

(iii) given the erroneous approach to the Rules, the findings under Article 8 are flawed.

6. In so far as ground (ii) is concerned it appears that there have been a number of decisions by both the First-tier Tribunal and the Upper Tribunal with regard to the meaning of "given leave with a view to settlement". Some conclude that discretionary leave is such a form of leave and some conclude it is not. Decisions of the First-tier Tribunal are neither persuasive nor binding upon either the First-tier Tribunal or the Upper Tribunal. Decisions of the Upper Tribunal were not produced in accordance with the Practice Direction. Neither Ms Wu's representative nor the SSHD's representative referred the First-tier Tribunal judge to the case of Acan [2004] EWHC 297 (Admin). Neither party appears to have produced a copy of the discretionary leave policy in force at the date of Ms Wu's mother's various applications for leave to remain, or the terms upon which she was granted discretionary leave to remain or the basis upon which she applied for discretionary leave to remain.

7. The SSHD's core submission is that the grant of discretionary leave to remain is not leave granted with a view to settlement. She submitted that there were various grants of leave made in accordance with the Immigration Rules which, if the criteria were met, would fall to be described as leave granted with a view to settlement. She submitted that Ms Wu's mother did not fall within such a category - she had not made an application for leave to remain in one of such categories and the grant of discretionary leave was a grant made on the basis of the facts at the time of decision; not at some time in the future. Her submission was that because Ms Wu's leave to remain was as discretionary leave, Ms Wu did not fall within either paragraph 297 or 301. Extension applications were made and decided on the basis of the facts at that time.

8. Ms Johnstone referred to the statement by the judge that it was not clear why the application had not been considered under Appendix FM as she had no doubt but that Ms Wu would have succeeded under those provisions: Ms Wu did not make an application under Appendix FM - if she had it would have been considered but she had not made that application. This statement by the judge appears to be a 'throwaway line'. There is no evidence that Ms Wu either made such an application or if she had made it then she met the criteria. It has no bearing on the outcome of this appeal save in so far as the judge may have relied upon it in her consideration of Article 8.

9. In [12] the First-tier Tribunal judge finds that paragraph 297 of the Immigration Rules is not the appropriate Paragraph to consider the application because Ms Wu's mother had discretionary leave to remain in the UK both at the date of application and the date of decision.

10. There has been no cross appeal against that finding, which is plainly correct. Ms Wu's mother was not admitted for settlement which is the reference throughout paragraph 297. She had been granted discretionary leave to remain and whatever the arguments around the phrase "with a view to settlement" she had certainly not been admitted for settlement.

11. First-tier Tribunal Judge Simpson found that because Ms Wu's mother had been granted discretionary leave to remain prior to 9th July 2012, the transitional provisions set out in paragraph A280(f)1 Immigration Rules apply. This appears to have been accepted by the ECM who reviewed the ECO's decision and was not a matter raised by the SSHD in her grounds seeking permission to appeal or by Ms Johnstone in submissions.

12. Having reached that conclusion she then proceeded to consider paragraph 301 of the Immigration Rules. She took the view that Ms Wu's mother would, absent countervailing factors, obtain settlement in due course and she accepted Mr Timson's submission (who had appeared for Ms Wu before her) that the respondent had failed to address the issue whether Ms Wu could succeed under paragraph 301(a) or why Ms Wu's mother would not get settlement when her leave expired in 2017. It is not strictly correct that there had been no consideration of Paragraph 3012. Although the ECO decision referred solely to paragraph 297, the ECM in the review conducted after the lodging of the appeal to the First-tier Tribunal did consider 301 and 302 and in particular stated that the common issues under 297, 301 and 302 were that Ms Wu's mother had discretionary leave to remain and that was not considered to be limited leave with a view to settlement.

13. First-tier Tribunal Judge Simpson concluded that Ms Wu's mother had been granted limited leave to remain with a view to settlement and thereafter the judge considered issue of finance and accommodation and reached a conclusion that Ms Wu met these requirements.

14. There is no statutory definition of 'with a view to settlement'. It is plain that it adds something to the phrase 'limited leave'. Judge Simpson has not engaged with the terms of the letter granting Ms Wu's mother discretionary leave to remain; or whether and to what extent the application for leave to remain should be expressed in terms of 'with a view to settlement'; or whether the nature of the period of leave granted is the leave that is granted as defined by the grantor and if this is not for the purposes of settlement then it cannot be made such by the desire of the grantee or because at some period of time in the future a person may become eligible for settlement. She appears to have reached a decision that there is no or little difference between leave to remain and leave to remain with a view to settlement without any real engagement with the different places that phrase appears in the Rules and on the basis that it seemed to her likely that Ms Wu's mother would eventually be granted settlement. This is inadequate and lacking in rationality.

15. In so far as Article 8 is concerned the judge has erred in the means by which she concluded that Ms Wu met paragraph 301. The consideration by the judge of Article 8 discloses a lack of understanding of the fundamental matters to be considered and is based upon an erroneously concluded compliance with the Immigration Rules.

16. I am satisfied the First-tier Tribunal judge erred in law and I set aside the decision to be remade.

Consequential Directions

1. The resumed hearing in this matter will be listed before me on the first available date after 14th July 2016, for 2 hours.
2. Oral evidence will not be required; the First-tier Tribunal heard and made findings on the relationship between Ms Wu and her family which are undisturbed.
3. The SSHD is directed to file and serve no later than five days before the date of the resumed hearing an indexed and paginated bundle of documents comprising:
(a) The discretionary leave policy in force at the date of Ms Wu's mother's first application for discretionary leave, at the date of first grant of discretionary leave, at the date of second application for discretionary leave and the subsequent grant.
(b) A copy of Ms Wu's mother's applications for discretionary leave with any covering letters.
(c) Copies of the grants of discretionary leave to remain to Ms Wu's mother.
4. Ms Wu has leave to file and serve no later than five days before the date of the resumed hearing such additional evidence as she may wish to rely upon, if so advised.
5. Both parties are directed to file and serve no later than five days before the date of the resumed hearing an indexed and paginated bundle of documents that were before the First-tier Tribunal that continue to be relied upon.
6. Both parties are to file and serve, no later than five days before the resumed hearing, skeleton arguments, with caselaw relied upon, addressing the phrase 'limited leave with a view to settlement' and 'limited leave'.

2. Unfortunately, the SSHD did not, for various operational difficulties, comply with directions but both parties during the course of the day investigated and obtained a copy of the policy under which Ms Wu's mother had been granted leave to remain in the UK. I am grateful to them for the efforts they put in which meant that this appeal did not have to be adjourned.

3. On the basis of that policy, in force at the date upon which Ms Wu's mother was granted discretionary leave to remain on 11th October 2011, the respondent accepted that she had been granted discretionary leave to remain with a view to settlement. As a consequence, the respondent accepted that Ms Wu succeeded in her appeal under the Immigration Rules and that on receipt of this decision, the file would be reviewed to enable entry clearance to be issued.

Conclusions:

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision and remake the decision.

I re-make the decision in the appeal by allowing Ms Wu's appeal against the refusal of entry clearance.

Date 6th October 2016
Upper Tribunal Judge Coker