Ali (Permission Decisions: Errors; Slip Rule)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Blundell UTJ |
| Judgment Date | 09 July 2020 |
| Neutral Citation | [2020] UKUT 249 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 09 July 2020 |
[2020] UKUT 249 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Blundell UTJ
Mr A Maqsood instructed by Archbold Solicitors, for the Claimant;
Ms J Isherwood, Senior Home Office Presenting Officer, for the Secretary of State.
AS (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 208; [2019] WLR 3065; [2019] 3 All ER 36; [2019] Imm AR 941; [2019] INLR 551
EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] 1 AC 1159; [2008] 3 WLR 178; [2008] 4 All ER 28; [2008] Imm AR 713; [2008] INLR 516
Huang v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home Department[2007] UKHL 11; [2007] 2 AC 167; [2007] 2 WLR 581; [2007] 4 All ER 15; [2007] Imm AR 571; [2007] INLR 314
Isufaj (PTA decisions/reasons: EEA reg. 37 appeal) [2019] UKUT 283 (IAC); [2020] Imm AR 192
Katsonga (“Slip Rule”; FtT's general powers) [2016] UKUT 228 (IAC)
MH (review; slip rule; church witnesses) Iran [2020] UKUT 125 (IAC); [2020] Imm AR 983
Nasim and others (Article 8) [2014] UKUT 25 (IAC)
Patel and Others v Secretary of State for the Home Department; Anwar v Secretary of State for the Home Department; Alam v Secretary of State for the Home Department[2013] UKSC 72; [2013] 3 WLR 1517; [2014] 1 All ER 1157; [2014] Imm AR 456; [2014] INLR 205
R v Secretary of State for the Home Department ex parte Razgar [2004] UKHL 27; [2004] 2 AC 368; [2004] 3 WLR 58; [2004] 3 All ER 821; [2004] Imm AR 381; [2004] INLR 349
R (on the application of Agyarko) v Secretary of State for the Home Department; A (on the application of Ikuga) v Secretary of State for the Home Department[2017] UKSC 11; [2017] 1 WLR 823; [2017] 4 All ER 575; [2017] 3 CMLR 3; [2017] Imm AR 764; [2017] INLR 548
R (on the application of the Commissioner of Police of the Metropolis) v Independent Police Complaints Commission [2015] EWCA Civ 1248; [2015] WLR(D) 518
Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC); [2019] Imm AR 437
Secretary of State for the Home Department v Devani [2020] EWCA Civ 612; [2020] WLR 2613; [2020] Imm AR 1183
European Convention on Human Rights, Article 8
Immigration Rules HC 395 (as amended), paragraphs 116(f)(vi) and 120A of Appendix A; Appendix C & Appendix O
Nationality, Immigration and Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, rules 31 & 34(4)(a)
Tribunal Procedure (Upper Tribunal) Rules 2008; rules 1(2), 2(3)(b), 23, 24 & 42
Tribunals, Courts and Enforcement Act 2007, sections 13(8)(c) & 22; paragraph 15(1) of schedule 5
Human rights — Article 8 of the ECHR — private life — students — proportionality — Secretary of State's delay and errors — retention of passport — English language test — no material prejudice — procedure and process — permission to appeal — permission decisions errors — rule 31 of the FtT Rules — rules 23(1A) & 42 of the UT Rules — slip rule
The Claimant, a citizen of Pakistan, entered the United Kingdom as a student in 2011. In March 2014 he sought further leave to remain (“LTR”) as a Tier 4 (General) Student Migrant. In February 2015 the Secretary of State for the Home Department wrote to the Claimant to inform him that the sponsor licence of the college where he was studying had been withdrawn and that he had sixty days to secure an alternative sponsor. The letter was sent to the Claimant's former address, so he did not receive it and took no action. On 27 April 2015, the Secretary of State refused the Claimant's application for LTR. The First-tier Tribunal (“FtT”) dismissed the Claimant's appeal. By decision dated 14 June 2016, the Upper Tribunal (“UT”) found that the Claimant had notified the Home Office of his change of address and held that the only fair course was for the Claimant to be issued with a further “sixty-day” letter to enable him to find another sponsor. The Secretary of State did not issue that letter until 15 May 2018. The Claimant wrote to her submitting that in the light of the delay he should be granted a period of discretionary LTR. On 20 June 2018, the Secretary of State issued a further “sixty-day letter” and stated that no further extension would be given. She enclosed a letter informing the Claimant that he was required to submit a new English language test certificate in support of any future application because his previous certificate had been cancelled by Educational Testing Services (“ETS”). She also set out detailed instructions about how to book an English language test with a secure English language test (“SELT”) provider. The Secretary of State retained the Claimant's passport but provided him with a certified copy of it and an accompanying letter. The Claimant contacted various SELT providers with a view to arranging a test, but each sent him a standard response stating that they were only able to accept original ID documents. The Claimant also engaged with several Tier 4 sponsors to secure a place on a course of study, but each declined his application.
In August 2018, the Claimant applied to vary his leave based on his private and family life rights in the United Kingdom under Article 8 of the ECHR. In refusing the application, the Secretary of State concluded that the Claimant did not meet the suitability requirements of the Immigration Rules HC 395 (as amended) because in 2012 he had used deception in his English language test with ETS. She further concluded that the Claimant did not meet the eligibility requirements in terms of his private life. At the hearing of the Claimant's appeal before the FtT, the Secretary of State withdrew the allegation that the Claimant had committed fraud. The FtT Judge nonetheless dismissed the appeal, holding that the Claimant did not meet the requirements of the Immigration Rules. The FtT Judge noted that, whilst the Secretary of State had behaved badly in not acting more quickly in the Claimant's case, there was nothing so unfair in her conduct to render the refusal decision disproportionate. The Claimant applied to the FtT for permission to appeal. The resulting decision stated that permission was granted but it was clear from the reasons that the judge in fact intended to refuse permission. The Secretary of State filed a response under rule 24 of the Tribunal Procedure (Upper Tribunal Rules) 2008 (“the UT Rules”) stating that there appeared to have been an “administrative error” in the permission decision.
The UT decided to hear the appeal to give guidance on what should be done, by whom and when, where a permission judge's decision was at complete variance with the reasons given for that decision. In relation to the substantive appeal, the Claimant argued that the FtT had failed to give adequate consideration to his submissions, including first, that he failed to secure admission to a new academic course as a result of the Secretary of State's delay; secondly, that the Secretary of State's late withdrawal of the allegation of ETS fraud had caused him difficulty in securing a new place of study; thirdly, that he had been prevented from taking a new English language test, or securing a new place of study, because of the Secretary of State's failure to return his passport; and fourthly, that the Secretary of State's overall conduct had resulted in him being unable to complete his studies in the United Kingdom.
Held, dismissing the appeal:
(1) Rule 31 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the FtT Rules”) and rule 42 of the UT Rules could each be employed in order to correct an error in a decision granting or refusing permission to appeal to the Upper Tribunal: MH (review; slip rule; church witnesses) Iran[2020] UKUT 125 (IAC) and Secretary of State for the Home Department v Devani[2020] EWCA Civ 612 applied. The absence of an express legislative requirement for the Tribunal to send a statement of its reasons with the record of its decision where permission to appeal was granted did not mean the reasons should not be scrutinised in order to determine whether the judge intended to make the decision he or she had expressed. The submission that the effect of rule 23(1A) of the UT Rules was that the grant of permission to appeal in the instant case made the FtT functus officio was rejected. Such a reading of rule 23(1A) would be contrary to the overriding objective in rule 2(3)(b) of the UT Rules and would create a significant anomaly between appeals in the UT (Immigration and Asylum Chamber) (“UTIAC”) and appeals in other UT Chambers, since rule 23(1A) applied only in the UTIAC. Rule 23(1A) of the UT Rules did not restrict the power of correction in rule 31 of the FtT Rules (paras 37 – 46).
(2) In cases of obvious error, the UTIAC could, in general, be expected in future to proceed as followed. Where the FtT permission judge granted permission when the reasons made it evident he or she meant to refuse, an UT judge, acting as a judge of the FtT, would make the necessary correction under rule 31 of the FtT Rules as soon as the matter was identified, whether that was at case management stage, as a result of communication from a party, or otherwise. Although the matter could and should be raised in a rule 24 response from the Secretary of State, it was preferable for it to be addressed earlier, since a hearing might already have been arranged before that response was received. Where the FtT permission judge refused permission, but clearly meant to grant it, any renewal of permission before the UT should point out the error and ask for it to be corrected under rule 31. In any event, a party should inform the UT of the mistake. In the UT, where a judge granted permission when he or she clearly meant to refuse, the error was unlikely to be identified at a case management stage...
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Upper Tribunal (Immigration and asylum chamber), 2020-07-09, [2020] UKUT 249 (IAC) (Ali (permission decisions: errors; slip rule))
...ar-SA } a:link { color: #0000ff } Upper Tribunal (Immigration and Asylum Chamber) Ali (permission decisions: errors; slip rule) [2020] UKUT 00249 (IAC) THE IMMIGRATION ACTS Heard at Field House by Skype for Business Decision & Reasons Promulgated On 17 June 2020 ………………………………… Before THE HON......