Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/22175/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 9 April 2014
On 17th April 2014

Before

UPPER TRIBUNAL JUDGE MOULDEN
IMMIGRATION JUDGE S CHANA
sitting as a DEPUTY JUDGE OF THE UPPER TRIBUNAL

Between

MR YAHAYA KASUJJA
(No Anonymity Direction Made)
Appellant
and

ENTRY CLEARANCE OFFICER - KAMPALA
Respondent

Representation:
For the Appellant: Mr D O'Callaghan of Counsel instructed by Ahmed Rahman Carr
For the Respondent: Mr E Tufan a Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Uganda who was born on 10 October 1987. He has been given permission to appeal the determination of Immigration Judge Dennis ("the FTTJ") who dismissed his appeal against the respondent's decision of 2 October 2012 to refuse him entry clearance as a returning resident to the United Kingdom under the provisions of paragraphs 18 and 320 (7A) of the Immigration Rules.

2. The appellant came to the UK when he was about 11 years old. He entered illegally in late 1999, shortly after his elder sister. His mother had come to the UK in 1990 and claimed asylum. She was refused asylum but was later granted leave to remain for reasons which are not clear. She became a British citizen in 2006. The appellant was granted indefinite leave to remain in the UK in letter dated 1 June 2000. The letter has been produced and it is accepted that it is genuine and that it has never been formally revoked.

3. The appellant attended secondary education in the UK for approximately 3 years but his mother said that he got involved with local gangs and was frequently in trouble. She attributed this to bad company and the lack of opportunities. Exactly when the appellant lived in this country or in Uganda is not entirely clear but at one point his mother said that she sent him back to her sister in Uganda "for a year so that he could learn to behave properly". His mother said that he returned to the UK when he was 17. In his visa application form the appellant said that he was in Uganda between 2003 and 2005. His mother said that when he returned to the UK he met up with his old friends and got back into the same routine of playing football and not working. Her recollection was that he left her home in 2008 or 2009. In 2010 his older sister, who was living in this country, died. The appellant, his mother and half-sister, went to Uganda for a month following the death of his sister. The appellant said that he was in Uganda from 2010 to 2011. After this period his mother said that he returned to this country and found work as a carer whilst renting his own flat in Sussex.

4. In the summer of 2012, possibly July or August, the appellant said that he flew to Uganda where he has been ever since. However, there is no documentary evidence to support the claim as to when he went there.

5. When the appellant was granted indefinite leave to remain in the UK a stamp to this effect was placed in his then current Ugandan passport (number B 334197) which had been issued on 26 September 2002 and was valid for five years expiring on 26 September 2007 ("the first Ugandan passport"). The appellant claimed to have lost this and produced a Metropolitan police report stating that he had reported the loss of the passport at Plaistow police station on 13 July 2012. The report states that the passport contained in indefinite leave to remain stamp. At some stage the appellant acquired another Ugandan passport ("the second Ugandan passport"). When he flew to Uganda in the summer of 2012 the appellant used the second Ugandan passport but was not able to take the first Ugandan passport with the indefinite leave to remain stamp in it because it had been lost. In 2012 the appellant would or should have known that he needed to take the first Ugandan passport with him as well as the then current second Ugandan passport because he had taken both of them with him when he travelled to Uganda in 2010 and had had to show the indefinite leave to remain stamp when he returned to the UK.

6. There is a great deal of speculation but little hard evidence as to why the appellant made the application to the respondent for leave to return to the UK as a returning resident. However in the application form entitled "Application for United Kingdom Entry Clearance. Settlement - Returning Resident. Returning Resident" which he signed on 10 September 2012 the appellant answered both questions 67 and 72 with the words "No". Questions 67 reads; "do you have any criminal convictions in any country (including traffic offences)?" Question 72 reads; "have you engaged in any other activities that might indicate you may not be considered a person of good character?" In refusing the application the respondent stated that the appellant had previous unspent court convictions in the UK. The appellant now accepts that he has had such convictions and we are told that there are two of them. Surprisingly, neither side told the FTTJ or has told us what these convictions were or what penalties were imposed. The respondent said that under paragraph 320 (7A) there had to be an automatic refusal if false representations or documents were used (whether or not material to the application and whether or not the applicants knowledge), or material facts were not disclosed in relation to the application. False representation for this purpose was a lie, or a false statement in the visa application, made orally or in writing.

7. The appellant appealed to the First-Tier Tribunal and the FTTJ heard the appeal on 20 September 2013. Both parties were represented. The appellant's mother attended but no oral evidence was given and the FTTJ heard oral submissions from both representatives.

8. The appellant's counsel argued that the application for entry clearance as a returning resident was entirely unnecessary. All that the appellant need to do was to go to the UK High Commission, present his second Ugandan passport together with either the photocopy of the ILR stamp in his first Ugandan passport or the letter granting him indefinite leave to remain, or both and ask that a new ILR stamp be placed in his second Ugandan passport. It was submitted that as the application for entry clearance as a returning resident was misconceived the application and the decision should be treated as a nullity. Any false statements should also be disregarded. As he was entitled to return to the UK in any event without making the application he had gained nothing from any false representations.

9. In the alternative it was argued that because the appellant still had indefinite leave to remain in the UK he was entitled to return to live with his family in the UK and that to prevent him from doing so would be a disproportionate interference with his right to respect for his private and family life.

10. The FTTJ found that the appeal raised interesting and difficult legal issues. No authorities had been provided to assist him. He concluded that paragraph 320 (7A) was intended to facilitate effective immigration control by requiring true and correct information to be supplied. There was no room for "leeway". He was satisfied that the appellant had made false statements in his application and the fact that the application may not have been the correct one or even the correct route was irrelevant. The Rules were clear as to the consequences of a breach of these provisions. It could not be said that the appellant had made an inadvertent mistake. The FTTJ rejected the submission that as the application was not necessary all that followed from it was a nullity.

11. The FTTJ went on to consider the Article 8 human rights grounds concluding that there was no extra-territorial operation of the ECHR for a Ugandan citizen present in Uganda. However, he accepted that Article 8 grounds needed to be considered. The evidence did not show that the appellant had been living a family life with family members in the UK. He was a 26-year-old single man who had been living independently for five years. His mother did not know when he had left the family and he had had spent lengthy periods in Uganda. There was no suggestion that he would return to live with his mother and half-sister. The evidence did not establish that refusal of leave would have sufficiently serious consequences as to engage his Article 8 family life rights but, had they done so, the FTTJ would have concluded that it would have been a proportionate interference. As to the appellant's private life in the UK, the FTTJ concluded that the appellant did have such a life but that to deny him the ability to return to the UK would not be a disproportionate interference.

12. The FTTJ dismissed the appeal under the Immigration Rules and on human rights grounds.

13. The appellant applied for permission to appeal, which was granted by a judge in the First-Tier Tribunal. The grounds argue that the FTTJ erred in law in two respects. Firstly, by failing to conclude that the appellant's application for entry clearance as a returning resident was null and void. The application had been made for a purpose not covered by the Immigration Rules and should have been refused as such under paragraph 320 (1). The refusal under paragraph 320 (7A) was fundamentally misconceived. Secondly, the respondent had failed to consider the appellant's Article 8 representations and the FTTJ had erred by concluding that an Article 8 based refusal would have been legitimate and pursuant to lawful process where, for the reasons set out in relation to the first ground of appeal, an application and a decision arising from it which was null and void could not serve a legitimate and lawful purpose.

14. At an earlier hearing before one of us (Deputy Upper Tribunal Judge Chana) the respondent's representative produced documents which it was claimed might show that somebody other than the appellant had claimed asylum using a false Ugandan passport in the appellant's identity (except for the photograph) and that someone else had used the same or similar passport to apply for a visit visa to the UK from Uganda. The appeal was adjourned for further enquiries to be made and we have since received witness statements from the appellant and his mother which deny any knowledge of or involvement with either of these applications or the use of a false or doctored passport. It is not now suggested that these matters have any bearing on this appeal and we disregard them.

15. Mr O'Callaghan stated that after careful consideration of the position the appellant and those advising him accepted that when the appellant travelled to Uganda and then wished to return to the UK the fact that he had only his second Ugandan passport and not his first Ugandan passport containing the indefinite leave to remain stamp meant it was most unlikely that he would be allowed to board an aircraft or any other form of transport heading for the UK. In the circumstances the only avenue open to him was to make the application for entry clearance as a returning resident. It followed that the appellant was no longer pursuing the argument that the respondent should not have considered or decided the application.

16. Mr O'Callaghan started to suggest some changes to the appellant's grounds of appeal to the Upper Tribunal. We are surprised that no application had been made to amend the grounds at some earlier stage, particularly bearing in mind the fundamental nature of the changes. It soon became clear that minor changes to the existing grounds would not be sufficient and that fundamental rewriting was required. We adjourned in order to enable Mr O'Callaghan to prepare amended grounds of appeal, which he did.

17. We asked Mr Tufan whether he was in a position to deal with these amended grounds. He said that he was and did not need to ask for an adjournment. We permitted the amendments to be made.

18. There are two amended grounds of appeal. The first submits that at all material times since 2000 the appellant enjoyed and continued to enjoy indefinite leave to remain in the UK. The Secretary of State had never directed that this leave be curtailed. In refusing the appellant's appeal against the respondent's decision to refuse the application under paragraph 320 (7A) the FTTJ had failed to consider that the appellant was settled in the United Kingdom and that the denial of settlement could only be undertaken by way of revocation with attendant appeal rights. A bar on the enjoyment of settlement rights by way of a decision under this provision was unlawful and ultra vires because an Entry Clearance Officer did not have the power to revoke de facto settlement.

19. The second amended ground of appeal is also based on the premise that the appellant continued to enjoy indefinite leave to remain in the UK. Because the FTTJ found that the ECHR did not have extraterritorial operation he did not engage with the fact that the appellant enjoyed settlement in the UK under domestic law. The Secretary of State had taken no steps to revoke the appellant's indefinite leave to remain and as a result the FTTJ had failed properly to consider Article 8 proportionality. The respondent should be directed to permit the appellant to re-enter the United Kingdom as a returning resident.

20. Mr O'Callaghan relied on the amended grounds and accepted that the circumstances of this case were most unusual. It was not disputed that the respondent had power to apply the provisions of paragraph 320 but it was argued that he erred in doing so in the circumstances of the appellant's case by failing to give proper consideration to the fact that he had indefinite leave to remain in the UK. In reply to our question Mr O'Callaghan accepted that the circumstances of this case gave rise to a mandatory refusal but pointed out that the Secretary of State taken no steps to revoke the appellant's indefinite leave to remain. This would appear to be a scenario which the draughtsman of the Immigration Rules had never contemplated. If the appellant managed to reach a point of entry in the UK then and only then could the Secretary of State decide whether to attempt to revoke his indefinite leave to remain. Mr O'Callaghan argued that the Secretary of State could not bar the appellant from entry to the UK without taking steps to revoke his indefinite leave to remain.

21. In relation to the Article 8 grounds Mr O'Callaghan submitted that notwithstanding that the application had been made out of country the appellant's Article 8 human rights were engaged. He accepted that the FTTJ went on to deal with proportionality but not on the basis that he should have done with proper weight given to the fact that the appellant had indefinite leave to remain.

22. Mr Tufan submitted that those who had indefinite leave to remain were subject to immigration control under section 3 of the Immigration Act 1971. Indefinite leave to remain did not have to be revoked before an individual with such leave could be refused readmission. The appellant now accepted that he had to make the application to the respondent in Uganda in which case the relevant Immigration Rule for a returning resident was Rule 18. It was not correct to say that an Entry Clearance Officer dealing with an application for leave from an individual with indefinite leave to remain had to grant this. The word "may" in the first line made this clear. Refusal under paragraph 320 (7A) was mandatory.

23. Mr Tufan argued that the FTTJ did give proper consideration to the Article 8 grounds in paragraph 16 of the determination. Proportionality was properly decided in the light of the findings of fact. There was no evidence that the appellant had a relationship with his mother or any other relatives in the UK which went beyond normal ties between adult relatives. We were asked to find that there was no error of law.

24. In his reply Mr O'Callaghan reiterated that this was a complex and unusual case. If the appellant was subject to immigration control then the Secretary of State should have taken steps to revoke his indefinite leave to remain. If he managed to reach a port of entry in the UK it might then be alleged that the refusal of entry clearance prevailed over the pre-existing indefinite leave to remain. The risk the appellant of such an argument being advanced should not be ignored. In reply to our question as to how the FTTJ could be said to have erred in law in relation to a case which was now being argued on a substantially different basis from that advanced before him, Mr O'Callaghan submitted that whatever was relied on by counsel before the FTTJ still required him to consider what happened to the application when indefinite leave to remain had not been revoked.

25. We reserved our determination.

26. We find that the FTTJ cannot be said to have erred in law in relation to grounds of appeal to the First-Tier Tribunal which are now conceded to have been misconceived and are no longer relied on. The FTTJ was asked to find that the appellant's application to the respondent for entry clearance as a returning resident was unnecessary and that both the application and the decision should be treated as a nullity. The FTTJ ruled against this argument. He was in our judgement correct to do so and this is now conceded by the appellant.

27. The provisions of paragraph 18 of the Immigration Rules relating to Returning Residents provide;

"18. A person seeking leave to enter the United Kingdom as a returning resident may be admitted for settlement provided the Immigration Officer is satisfied that the person concerned:

(i) had indefinite leave to enter or remain in the United Kingdom when he last left; and

(ii) has not been away from the United Kingdom for more than 2 years; and

(iii) did not receive assistance from public funds towards the cost of leaving the United Kingdom; and

(iv) now seeks admission for the purpose of settlement."

28. We find that the respondent must have been aware that the appellant had indefinite leave to remain in the United Kingdom. The application had been made on the form designed for this specific purpose and in the first paragraph of the decision the respondent stated that; "You have applied for and entry clearance as a Returning Resident to the United Kingdom". The respondent went on to refer to paragraph 18 of the Immigration Rules which relates to Returning Residents.

29. Paragraph 320 of the Immigration Rules sets out the "Grounds on which entry clearance or leave to enter the United Kingdom is to be refused". One of them is contained in paragraph "(7A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the application."

30. This is a mandatory not a discretionary ground for refusal. The appellant admits that he falls within these provisions. In the circumstances there was no good reason for the respondent not to refuse the application. The fact that the appellant still had existing leave to remain which had not been revoked was not a good reason; on the contrary it was an essential prerequisite for making the application.

31. What the appellant should have done before he travelled to Uganda on the last occasion was to make an application for the indefinite leave to remain stamp to be placed in his second Ugandan passport. This was made clear in the original grant letter of 1 June 2000 which stated; "if you obtain a new passport or travel document you may ask us to stamp it to show your immigration status before you travel. You should send it to this Directorate at the address at the top of this letter at least two months before you intend to travel". The appellant should have been and probably was aware of this because he must have travelled to Uganda and returned to the UK on a previous occasion with his first and second Ugandan passports. Even though the first Ugandan passport had expired it was needed in order to show the indefinite leave to remain stamp which was not in the second Ugandan passport.

32. The submissions advanced on behalf of the appellant are based on the assumption that if the appellant had returned to the UK he would automatically have been re-admitted unless the Secretary of State had taken or then took steps to revoke his indefinite leave to remain. This is incorrect as the original grant letter of 1 June 2000 makes clear. The latter states; "if you do not have your passport stamped before you travel, when you return to the United Kingdom you will have to satisfy the immigration officer that you had indefinite leave to remain when you left. To do this, you will need to produce either the enclosed passport or other documentary evidence such as bank statements, notices of income tax coding, school law employment records etc relating to the earlier years of your residents in the United Kingdom. It may also be helpful to carry this letter with you."

33. Also, in the same letter of 1 June 2000 there is a statement that; "If you leave the United Kingdom you will normally be readmitted for settlement as a returning resident provided that: you did not receive assistance from public funds towards the cost of leaving this country: you had indefinite leave to enter or remain here when you last left: you have not been away for longer than two years; and: you are returning for the purpose of settlement. In order to be considered as settled here, you will have to be able to show that you are habitually are normally resident in this country, and any absences have been a temporary or occasional nature. You will not be readmitted as a returning resident if you are resident overseas and only return here for short periods."

34. We find that the requirements which an individual has to satisfy in order to obtain leave to enter the United Kingdom as a returning resident are the same whether that individual makes the application out of country or in country on arrival in the UK. They are the requirements set out in paragraph 18 of the Immigration Rules. The appellant has not been disadvantaged by having to make the application in Uganda rather than on arrival in the UK. If, on arrival in the UK, he had made the same false representations as he made on his application form in Uganda then the Secretary of State would have been entitled to refuse the application on the same basis as did the respondent. Furthermore, in paragraph 22, the FTTJ found that the appellant, who had shown that he was prepared to misrepresent his circumstances, had not established that he actually intended to return to the UK. The lease of the place where he had lived in the UK had expired and there was no suggestion that he was absent on a holiday from his previous employment. He was described as a footballer in Uganda and had claimed to have a residential address and a girlfriend there. His circumstances could have caused him difficulties in seeking to persuade an Immigration Officer that he was returning to the UK for the purpose of settlement.

35. It has not been argued that the appellant could have succeeded on Article 8 grounds under the current Immigration Rules. We find that the FTTJ did not err in law in his alternative consideration of the Article 8 grounds outside the Immigration Rules. For the reasons we have given there is no overarching argument relevant to the Article 8 grounds that the appellant was bound to be readmitted as a returning resident if he presented himself at a port of entry in the United Kingdom or that his indefinite leave to remain remained in force and was some sort of trump card unless and until revoked by the Secretary of State.

36. We find that the facts advanced by the appellant in support of his Article 8 grounds were properly assessed and considered by the FTTJ. It was open to him to conclude that, for the reasons set out in paragraph 20, the appellant did not have a family life in the UK and certainly not a family life where interference with it would have consequences of such severity as potentially to engage the operation of Article 8. Even if he had reached the opposite conclusion it would still have been open to him to find that refusal of entry clearance would not be a disproportionate interference with the appellant's right to respect for his family life. The FTTJ accepted that the appellant had a private life in the UK having made efforts to obtain basic qualifications, employment and independence. Interference with the private life which he had formerly enjoyed in the UK would have consequences of such severity as potentially to engage the operation of Article 8 but it was open to the FTTJ to find that in the light of the whole of the appellant's history, including his false declarations, it would not be disproportionate to refuse him leave to return to the UK.

37. We have not been asked to make an anonymity direction and can see no good reason to do so.

38. We find that the FTTJ did not err in law and we uphold his determination.

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Signed Upper Tribunal Judge Moulden Date 13 April 2014