Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004927

First-tier Tribunal No: HU/00488/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
13 March 2025

Before

UPPER TRIBUNAL JUDGE HOFFMAN
DEPUTY UPPER TRIBUNAL JUDGE OBI

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

A1
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr J Thompson, Senior Home Office Presenting Officer
For the Respondent: Mr G Hodgetts, Counsel, instructed by Barar & Associates

Heard at Field House on 23 January 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the respondent, likely to lead members of the public to identify the respondent. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. For continuity, we will continue to refer to the parties as they were before the First-tier Tribunal, although technically the Secretary of State is the appellant in the appeal before the Upper Tribunal. Therefore, A1 will be referred to as the appellant and the Secretary of State as the respondent.

2. The Secretary of State appeals, with permission, against the decision of First-tier Tribunal Judge Dainty, promulgated on 9 July 2024, which allowed the appellant’s appeal against the refusal of her application for indefinite leave to remain (“ILR”) on human rights grounds.

3. We note that the First-tier Tribunal made an order for anonymity and no application has been received to set that aside. In maintaining that order for anonymity, we have considered the strong public interest in open justice. The appellant was granted anonymity on the basis that she works for a defence contractor and it would not be in the public interest for her identity to be known. On consideration, we are satisfied that the public interest in this case weighs in favour of maintaining the appellant’s anonymity.

Background

4. The appellant is a citizen of Ukraine. She first entered the UK on 1 September 2013 with entry clearance as an accompanied child valid until 2 April 2015. On 8 January 2014, she applied for leave to remain as a Tier 4 (General) Student which was granted until 19 July 2017. Prior to the expiry of her visa, the appellant returned to Ukraine.

5. On 20 July 2017, the day after her Tier 4 leave expired, she applied for entry clearance to return to the UK as a visitor. Her visit visa was granted on 24 July 2017, valid until 24 January 2018, and she re-entered the UK on 16 August 2017 and left the country again on 31 August 2017.

6. On 5 September 2017, the appellant applied for entry clearance as a Tier 4 (General) Student which was issued on 17 September 2017 and was valid until 30 October 2022. It appears that the appellant then reapplied for student leave to remain on 4 September 2018 which was granted until 30 October 2022.

7. On 26 July 2022, the appellant applied for a work visa which was granted on 16 September 2022 and is valid until 18 September 2027.

8. On 7 December 2023, the appellant applied for ILR based on 10 years’ long residence. However, that application was refused on 6 March 2024 on the basis that the respondent was not satisfied the appellant could demonstrate 10 years’ continuous residence for the purposes of para 276B(i)(a) of the Immigration Rules (“the Rules”). The decision was taken on the basis that the appellant held leave to enter as a visitor between 24 July 2017 and 17 September 2017 (although the decision letter erroneously refers to this period as being “17/09/2017 until 24/04/2017 until 24/01/2018”). The respondent stated that the period as a visitor could not count towards the period of continuous residence and it therefore served to break her period of leave. As a consequence, the respondent stated that the period for calculation of the 10-year route re-started on 17 September 2017, which would mean that the appellant would not qualify for ILR until 17 September 2027 (the day before her current period of leave to remain expires).

9. The respondent went on to consider whether the appellant was entitled to leave to remain on private life grounds under para 276ADE of the Rules but found that she did not meet its requirements. The respondent also considered whether there were any exceptional circumstances that would justify a grant of leave outside of the Rules, but she considered that there were none because the appellant already held leave to remain and was therefore able to continue to reside in the UK.

10. The appellant was notified that she had a right of appeal against that decision.

The decision of the First-tier Tribunal

11. The appellant’s appeal was heard by First-tier Tribunal Judge Dainty (“the judge”) on 19 June 2024. In her decision promulgated on 9 July 2024, the judge allowed the appellant’s appeal on human rights grounds.

12. The judge found that the appellant did not meet the requirements for ILR under the Rules. However, the judge found that the respondent’s decision to refuse ILR would lead to unjustifiably harsh consequences for the appellant and therefore amounted to a disproportionate interference with her right to a private life under Article 8 ECHR. We have found the judge’s reasoning to be muddled in places, but in essence she found that the refusal of ILR would prevent the appellant from taking up a graduate position with her employer, because that was contingent on her obtaining security clearance that was only available to persons with settled status. This, the judge found, would mean that “her current leave would expire because her [current] leave is predicated on her current employment” and lead to the appellant being “require[d] to effectively choose between an apprentice non gradate job [with her current employer] or no job (meaning her existing leave expires)”: see [34] and [37]. The judge therefore found that this would be an unjustifiably harsh consequence of the respondent’s decision to refuse ILR.

The respondent’s appeal to the Upper Tribunal

13. The respondent was granted permission to appeal to the Upper Tribunal by First-tier Tribunal Judge Khurram on 15 October 2024. The respondent raises one ground of appeal, which we set out in full below:

Making a material misdirection in law

Ground One

It is respectfully submitted, that in allowing the appeal on the basis of article 8, FTTJ Dainty materially errs in law. It is accepted that the appellant has extant leave which extends until 2027 [8], it has been found that the appellant cannot satisfy the Immigration rules [sic] [23], it cannot therefore be said to be unlawful, or an interference with any rights under article 8, as the appellant will not face removal until the expiry of her leave, at which point she is at liberty to apply under the Immigration Rules for ILR. It is respectfully asserted, that the FTTJ has failed to apply the test required under Razgar, nor have they considered, that any grant of leave on an article 8 basis would not lead to a grant of ILR in any event, as the appellant cannot satisfy the required rules, and therefore any conclusion on proportionality is flawed to the extent that it is unreliable

The appellant’s Rule 24 response

14. The appellant seeks to rely on a Rule 24 response in which she raises the following arguments:

a. Reasons for opposing the respondent’s appeal: The respondent did not argue, either in the decision itself, or at the hearing before the judge, that there was no interference with the appellant’s private life for the purposes of Article 8. Instead, all argument was addressed to proportionality. The appellant therefore submits that it is inappropriate for the respondent to now raise this point on appeal. The appellant argues that there is, in any event, no merit to the ground of appeal in the light of the judge’s unchallenged findings of fact relating to the impact on the appellant’s career were she not to be granted ILR.

b. Jurisdiction: The respondent has at no point raised the issue of jurisdiction and the refusal letter expressly gave the appellant a right of appeal. Furthermore, no jurisdictional point is raised in the respondent’s sole ground of appeal. The appellant argues that the judge has the “constitutive” jurisdiction to make findings of fact going to whether she had jurisdiction to hear the appeal and thus had jurisdiction to make findings on whether the respondent’s decision gave rise to either “removal” or a “requirement to leave” the UK pursuant to s.113 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).

c. The judge made an error of law in finding that the appellant did not meet the requirements of the Rules: The appellant argues that if the Upper Tribunal accepts the jurisdictional point and finds that the respondent’s ground of appeal is made out, then it must consider whether the judge made a material error of law in finding that the appellant did not meet the requirements of Appendix Long Residence of the Rules as in force at the date of hearing.

The hearing

15. At the error of law hearing, the respondent was represented by Mr Thompson and the appellant by Mr Hodgetts. At the outset it became apparent that while the appellant had uploaded her Rule 24 response to CE-File on 21 November 2024, it had not been served on the respondent in accordance with the standard directions until the day before the hearing. As a result of this, the Rule 24 response had not been included in the error of law bundle prepared by the respondent and, consequently, we had not read it in advance of the hearing. We therefore asked Mr Thompson whether he would be seeking an adjournment. He said that he had read the contents of the Rule 24 response that morning and was in a position to proceed with the hearing.

16. With regards to the jurisdictional point raised in the Rule 24 response, Mr Thompson confirmed that he would not be making any submissions on this. He said that he agreed with the position taken by the appellant.

17. We therefore proceeded to hear submissions by the parties on the respondent’s ground of appeal and then the contents of Part C of the appellant’s Rule 24 response. At the end of the hearing, we reserved our decision.

18. However, following the hearing, having given further consideration to the question of jurisdiction, and reminding ourselves that jurisdiction cannot be conferred by waiver or agreement (see Virk v Secretary of State for the Home Department [2013] EWCA Civ 652 at [23]), we sent out directions to parties on 12 February 2025. These directions required the respondent to file written submissions responding to Part B of the Rule 24 response and gave the appellant the opportunity to file a reply. We also directed the respondent to file and serve copies of the respondent’s application for ILR and any accompanying representations and the appellant to file copies of her evidence before the First-tier Tribunal as none of these documents had been included in the error of law bundle. Both parties complied with the directions.

The jurisdiction of the First-tier Tribunal

19. We begin by considering the jurisdictional point. As explained above, at the hearing Mr Thompson did not seek to object to the appellant’s submissions as set out in her Rule 24 response on jurisdiction. However, in her post-hearing written submissions dated 20 February 2025, the respondent argued that her decision did not require the appellant to leave the UK, because she had extent leave to remain until 2027, and therefore the judge was wrong to treat it as an appealable refusal of a human rights claim.

20. A person derives a right of appeal to the First-tier Tribunal pursuant to s.82 of the 2002 Act. Subsection (1) says:

“(1) A person (“P”) may appeal to the Tribunal where—
(a) the Secretary of State has decided to refuse a protection claim made by P,
(b) the Secretary of State has decided to refuse a human rights claim made by P, or
(c) the Secretary of State has decided to revoke P’s protection status.”

21. As the appellant did not make a protection claim, her only possible avenue to appeal was under s.82(1)(b). In accordance with s.84(2), the relevant ground of appeal would be that “the decision is unlawful under section 6 of the Human Rights Act 1998”.

22. However, importantly, under s.113 of the 2002 Act, “human rights claim” is defined as “a claim made by a person to the Secretary of State…that to remove the person or require him to leave the United Kingdom…would be unlawful under section 6 of the Human Rights Act 1998” (underlining added). In the present case, having considered the appellant’s application for ILR made on 7 December 2023, it does not in our view appear to contain any claim that to remove the appellant, or to require her to leave the UK, would breach her human rights. Instead, it is a straightforward application for ILR under the Rules on the basis that the appellant has accrued 10 years’ continuous residence. The application form does not appear to have been accompanied by any written representations setting out a human rights claim. Nevertheless, we are satisfied that the respondent did treat the application as a human rights claim. The decision of 6 March 2024 expressly states, “Your application has been considered under the Rules, and with reference to Article 8 of the European Convention on Human Rights (ECHR)”. Furthermore, in addition to considering whether the appellant meets the requirements for ILR under para 276B of the Rules, the respondent also considers whether the appellant meets the requirements for leave to remain on private life grounds under para 276ADE and also whether there are any exceptional circumstances to her case that would warrant a grant of leave outside of the Rules on Article 8 ECHR grounds. While the decision letter informed the appellant that the refusal of her application did not require her to leave the UK, it also expressly told her that she had a right of appeal against it. Therefore, the current case can be distinguished from the circumstances of the appellant in MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500 where the Court of Appeal found that the Secretary of State had not made a decision to refuse a human rights claim when refusing MY’s application for leave to remain as a victim of domestic violence: see [46] and [50].

23. For the reasons give above, we are satisfied that the First-tier Tribunal did have jurisdiction to hear the appellant’s appeal on the basis that the respondent had decided to refuse a human rights claim.

Findings – Error of Law

The respondent’s ground of appeal

24. When considering a claim based on Article 8 of the ECHR, judges are required to have regard to the five-stage test set out in the case of Razgar v Secretary of State for the Home Department [2004] UKHL 27:

“(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”

25. While the judge refers to the case of Razgar at [27], we accept the respondent’s argument that she does not properly follow the five-stage test. While it is not in dispue that the appellant enjoys a private life in the UK as the judge recognises at [28], there is no express consideration by her as to what extent the respondent’s decision interferes with that private life. The judge instead skips stages (2) to (4) and proceeds to consider whether the respondent’s decision is proportionate. Having carried out that assessment, while accepting that the appellant does not meet the requirements for ILR under the Rules, the judge concludes that the refusal of ILR is disproportionate because it prevented the appellant from taking up a job opportunity that required her to possess a security clearance available only to those with settled status.

26. While not referred to by Mr Thompson, we remind ourselves that in Mujahid v First-tier Tribunal (Immigration and Asylum Chamber) [2021] EWCA Civ 449 at [32], Stuart-Smith LJ (with whom Underhill and Green LJJ agreed) did “not accept that a refusal of indefinite leave to remain will engage an applicant’s Article 8 rights where the refusal does not render the applicant liable to be removed, or require them to leave the United Kingdom”. He adopted the findings of Underhill LJ in MS (India) v Secretary of State for the Home Department [2017] EWCA Civ 1190 at [138] that “it is important to bear in mind that the withholding of ILR is not in itself an interference with Article 8 rights”.

27. As we say above, in the present case, the respondent’s decision expressly informed the appellant that she did not have to leave the UK as a result of the refusal of her application. Nevertheless, the judge found at [34] that the decision did “require” the appellant to leave the UK because she had completed the graduate scheme with her employer and without the security clearance that she could only obtain through having settled status, the appellant would be unable to progress with her career in the company and “her current [limited] leave would expire because such leave is predicated on her current employment”. We note that none of this was made clear to the respondent in the appellant’s application for ILR and this information appears only to have been raised during the course of the hearing before the First-tier Tribunal.

28. We have faced some difficulty in deciding this matter as a result of the perfunctory and vague way in which the respondent has advanced her case.

29. First, when we asked Mr Thompson to expand upon the reasons why the respondent said the judge’s failure to expressly consider interference amounted to a material error of law, he simply answered that he was not in a position to assist the tribunal on this point.

30. Second, while the ground of appeal refers to the judge’s failure to properly take into account that the appellant is not facing removal from the UK because she has extant leave to remain, it fails to expressly challenge the judge’s findings at [34] (or [37]) that the decision nevertheless “required” her to leave the UK. When we asked Mr Thompson to address us on this specific point his response was merely to rely on the contents of the ground of appeal. But as we have already said, that fails to expressly deal with the issue.

31. Having found little assistance in the perfunctory way in which the respondent argued her case, we find that the judge’s failure to carry out the five-stage test did not amount to a material error of law. As Mr Hodgett submitted, the threshold for interference is low, and while the judge failed to expressly consider how the refusal of ILR interfered with the appellant’s right to a private life, we are satisfied that in finding at [34] and [37] that the decision prevented the appellant from pursuing her career in the way she wanted, the judge implicitly found that to be the interference. Those are not findings that every judge would have made, and we have particular doubts about the correctness of what is said at [37], but we are satisfied that there has been no direct challenge to them by the respondent either in her written grounds or oral submissions.

32. Similarly, there was no particularised challenge by the respondent to the judge’s findings on proportionality.

33. The written ground of appeal does, however, raise a point that argues that the judge failed to appreciate that the grant of leave the appellant could expect to receive as a result of a successful Article 8 appeal would not be ILR because the appellant does not satisfy the requirements of the Rules. We are not satisfied that proposition is entirely correct. The respondent’s own guidance on granting leave outside of the Immigration Rules makes clear that indefinite leave to enter or remain can be granted outside of the Rules, albeit only in cases where the grounds are so exceptional that they warrant it. However, that is irrelevant for the purposes of a statutory appeal. The First-tier Tribunal has no power to direct the respondent to grant a particular form of leave and the judge in the instant case did not purport to do so. Her job was merely to decide whether the respondent’s decision breached the appellant’s Article 8 rights. After that, it is a matter for the respondent to decide what form of leave should be granted, having had regard to the tribunal’s findings. That is not a question for us to take into account for the purposes of deciding whether the judge made a material error of law in her decision.

34. Finally, Mr Thompson argued that the judge had made a material error of law in finding at [37] that the appellant’s failure to meet the requirements of the Rules was the result of a “near miss”. We accept that there is no near miss principle: see Miah v Secretary of State for the Home Department [2012] EWCA Civ 261). We also accept that this finding arguably may have been material to the judge’s assessment of proportionality at [37]. However, as Mr Hodgetts submitted, this was a new ground of appeal raised only at the hearing. Mr Thompson did not make an oral application for permission to rely on this new ground of appeal, and any such application would have been out-of-time. In the circumstances, we find that it was not open to the respondent to rely on this ground.

35. Based on the way her case was advanced before us at the hearing, we find that the only conclusion that we can reach is that the respondent has failed to demonstrate that the judge’s decision is vitiated by a material error of law.

Whether the judge erred in finding that the appellant did not meet the requirements of the Rules

36. As explained earlier in this decision, at Part C of her Rule 24 response the appellant argues that the judge made a material error of law in finding that she did not meet the requirements for ILR under the Rules as in force at the date of hearing. Mr Hodgett submitted that this point only needed to be considered if the respondent was successful with her appeal (see also para 14 of the Rule 24 response). We also take into account that to the extent that the appellant argues at para 16 of her Rule 24 response that this point is material to the ultimate resolution of her appeal, she has not obtained permission to cross-appeal from the First-tier Tribunal: see Smith (appealable decisions; PTA requirements; anonymity) [2019] UKUT 00216 (IAC). Consequently, for these two reasons, we make no findings on this issue.

Conclusion – Error of Law

37. For the reasons given above, we are satisfied that the judge did not make a material error of law in finding that the respondent’s decision amounted to a disproportionate interference with the appellant’s rights under Article 8 ECHR.

Notice of Decision

There is no error of law in the decision of the First-tier Tribunal.

The Secretary of State’s appeal is dismissed.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10th March 2025